Sum­mary: A review of copy­right law, and some obser­va­tions of our day. This post is an analy­sis of copy­right sense and non-sense.

What is at issue?

Basi­cally what is at issue is money. Those who pro­duce copy­righted con­tent sell it and make profit from it. The Chris­t­ian book pub­lish­ers as well as sec­u­lar book pub­lish­ers have entered into a frenzy to make money, and there­fore, they want every­body to pay for every­thing. Just so you know where they are going, they want a per use pay­ment. In other words, if you read a book (part or whole), then you pay, but if you return to the book a month later, you should pay again. They want every time one of their songs (words, tune, music, etc) is seen, spo­ken, sung, etc., that some­body pays them for that.

The bot­tom line here is that this is course and vul­gar greed, some­thing that the Bible out­right con­demns. But we need to under­stand what is legal, and what is not legal. It does not mat­ter what these peo­ple say about copy­right law, but what the US con­sti­tu­tion and laws say about copy­right laws.

What is the law, and why

Dolly Par­tons break­ing the mold

The law is what we have to obey, not the desires of greedy peo­ple. Before actu­ally exam­in­ing the law, lets exam­ine the rea­son why the law was made. Copy­right laws were made to pro­tect the labors of peo­ple who pro­duced new things (specif­i­cally books, but they were expanded to include images, songs, and other orig­i­nal mate­r­ial). The idea here is that the law pro­tects authors and artists from oth­ers tak­ing advan­tage of their tal­ent and labors by pro­hibit­ing the use of their work with­out just remu­ner­a­tion to that author or artist. This is the intent of all copy­right law. Mod­ern pub­lish­ing com­pa­nies that com­plain so loudly about copy­right infringe­ment are them­selves the mas­ters of get­ting the legal rights of con­tent pro­duc­ers with­out pay­ing sig­nif­i­cant remu­ner­a­tion. Typ­i­cally a book author will get 25 cents or so for a book he wrote that sells for $20 dol­lars and actu­ally costs $5 to pro­duce. So when you hear the com­plain­ing, it is because the crooks want to rob, but don’t want com­pe­ti­tion. The orig­i­nal con­tent pro­duc­ers are not get­ting a fair shake, and the big pro­duc­tion com­pa­nies don’t like inde­pen­dent con­tent pro­duc­ers going it alone.

An exam­ple here will serve (and no I don’t lis­ten to or like Dolly Par­ton). Dolly Par­ton is a coun­try and west­ern vocal­ist. She has pro­duced records and now CDs for Sony. Typ­i­cally these have sold for between $15 to $25 per CD which a blank CD bought indi­vid­u­ally costs 30 cents. The case costs 10 cents, and the print­ing on the case insert and on the CD would cost another 40 cents. So what costs the pub­lish­ing com­pany less than a dol­lar to pro­duce, they sell for 15 to 25 times that amount, and they give the orig­i­nal artist between 25 to 40 cents per CD (1%), and these pub­lish­ing com­pa­nies are com­plain­ing about rob­bery. Actu­ally most of them give a set amount $1000 to the artist and this is all he gets. Dol­lay Par­ton got mad because she is get­ting up in years, and Sony, who pro­duces her CDs, said that nobody wants an old coun­try and west­ern star. They refused to pro­duce any­thing for her. She spent a thou­sand dol­lars or so on a few com­put­ers to burn CDs and started her own pub­lish­ing com­pany where she earns 100% of the prof­its, and to the sur­prise of Sony, broke a mil­lion CDs pro­duced and sold.

Even though this is totally fair and legal, this type of thing is being attacked by big pro­duc­tion com­pa­nies as ille­gal behav­ior. They want laws to restrict orig­i­nal copy­right own­ers from doing this. So fair just went out the window.

The “old laws”

Times change, and with the intro­duc­tion of the pho­to­copier, and later the com­puter and eco­nomic color laser print­ers, indi­vid­ual repro­duc­tion of mate­r­ial has never been eas­ier. In the days before this, the copy­right law was sim­pler. An orig­i­nal con­tent pro­ducer filed a copy of their work with the US copy­right office, and there­after posted the blurb “© by [author name] 1920″ for exam­ple. Reg­is­ter­ing the work was essen­tial for obtain­ing a legal copy­right, and many books were printed incor­rectly with © instead of ©, which the states that © is not accept­able. Even though a copy­right was applied for these works, it was not granted because they didn’t for­mat the copy­right state­ment cor­rectly, or they didn’t file the peti­tion for copy­right cor­rectly. Not every­thing that was applied for was granted in other words.

Ref­er­ence: Cir­cu­lar 15 US Copy­right Office

The old law held two copy­right peri­ods each last­ing 28 years. So the author had to file for copy­right, and being granted, he had to renew his copy­right in 28 years or it would go into pub­lic domain. In gen­eral, once a work goes into pub­lic domain, it can­not be brought back under copy­right. The excep­tion to this rule is when the law changes and specif­i­cally makes an exception.

I quote from the Cir­cu­lar 15 of the US Copy­right Office (page 1)

“If a copy­right orig­i­nally secured before Jan­u­ary 1, 1964, was not renewed at the proper time, copy­right pro­tec­tion expired at the end of the 28th cal­en­dar year of the copy­right and could not be restored.”

In other words, the copy­right owner (the only per­son who legally can do this, or those who have his rights if he has died or given or sold them away) had to renew in the last year of the copy­right or it was not renewed. Starting­ing in 1992, an amend­ment (P.L. 102–307) was made to make this exten­sion auto­matic with­out any need for the copy­right owner to man­u­ally do it. (This would apply to books copy­righted in their first term after 1964.) Another law affect­ing these works is P.L. 105–298 which granted them an addi­tional 20 years. So the cir­cu­lar 15 declares

“The term of copy­right in works copy­righted between Jan­u­ary 1, 1964, and Decem­ber 31, 1977, is now 95 years. There is no require­ment to reg­is­ter a renewal in order to extend the orig­i­nal 28 year copy­right term to the full term of 95 years.”

This has been the law until Jan­u­ary 1978 when the law changed.

Note that the copy­right holder can­not make changes to a work about to go pub­lic domain, and thereby extend the copy­right. The orig­i­nal work goes pub­lic domain, and only the changes and addi­tions are newly copy­righted. If an author writes a new chap­ter in an old book, only the new chap­ter is copyrighted.

The 1978 copy­right changes

What this law (United States Code, title 17) changed was that all new works were con­sid­ered on dif­fer­ent terms. The code states that every­thing in its first renewal period pro­duced pre-January 1978 was still under the renewal sys­tem. The owner had to renew, and the law gave the owner 47 addi­tional years if they renewed.

Claim­ing copy­right over reprints of old pub­lic domain works

Here there is just no jus­tice involved at all. Chris­t­ian book pub­lish­ers pay lawyers to advise them, but they smudge the line here, know­ing good and well that only their for­mat of the book is copy­righted, but the actual text is not. Read the Bayly brother’s com­ments here which I highly rec­om­mend and I will sum­mer­ize here.

http://www.baylyblog.com/2006/02/christian_busin.html

At issue is whether it is legal under the copy­right laws to claim a copy­right over a pub­lic domain work. The quick answer is no, the copy­right law explic­itly states that once a work goes out of copy­right into pub­lic domain, it can­not be returned under copy­right. But once you buy an elec­tronic copy of a book, is it legal to “for­mat shift” the text into some­thing else caus­ing a copy­right on the new work? Chris­t­ian soft­ware com­pa­nies say yes, the law says no.

Bayly makes the point that three legal cases come to bear here:

Feist Pub­li­ca­tions Inc v Rural Tele­phone Serv. Co., 499 US 340, 111 S.Ct. 1282 (1991)
Matthew Ben­der & Co. v West Pub­lish­ing Co. 158 F.3d 5674 (2d Cir 1998).
Matthew Ben­der & Co. v West Pub­lish­ing Co. 158 F3d 693 (2d Cir 1999).

Fiest Case

The tele­phone com­pany made a tele­phone list­ing book, and claimed that they had copy­right over it. Feist made a copy of it, and the tele­phone com­pany sued say­ing that they had sig­nif­i­cant work involved in for­mat­ting and col­lect­ing the data. The case deci­sion was against the Rural say­ing that sweat-of-the-brow, and orig­i­nal­ity basis. The court rejected out of hand the sweat-of-the-brow basis, and the orig­i­nal­ity basis was rejected also say­ing that the com­pi­la­tion of pub­lic domain infor­ma­tion isn’t copyrightable.

First Ben­der Case

West Pub­lish­ing Co. claimed copy­right on legal case reports (pub­lic doc­u­ments) in their National Recorder Sys­tem (soft­ware which searches and views these reports). The basic argu­ment was that of for­mat­ting or refor­mat­ting the mate­r­ial for another pre­sen­ta­tion, a new arrange­ment of the mate­r­ial, a cit­ing and quot­ing sys­tem. The court didn’t find any of these bases as basis for a new copyright.

All of West’s alter­ations to judi­cial opin­ions involve the addi­tion and arrange­ment of facts, or the rearrange­ment of data already included in the opin­ions, and there­fore any cre­ativ­ity in these ele­ments of West’s case reports lies in West’s selec­tion and arrange­ment of this infor­ma­tion. In light of accepted legal con­ven­tions and other exter­nal con­strain­ing fac­tors, West’s choices on selec­tion and arrange­ment can rea­son­ably be viewed as obvi­ous, typ­i­cal, and lack­ing even min­i­mal cre­ativ­ity. There­fore, we can­not con­clude that the dis­trict court clearly erred in find­ing that those ele­ments that Hyper­law seeks to copy from West’s case reports are not copy­rightable, and affirm.

Matthew Ben­der (text case), 158 F.3d at 677.

Sec­ond Ben­der Case

The sec­ond Ben­der case deals with for­mat­ting and cat­e­go­riz­ing. Nei­ther of these things causes a copyright.

Excep­tions or Per­mit­ted Vio­la­tions of the Copy­right Laws

Ref­er­ence: copy­right issues http://www.memphis-umc.org/news/copyright_issues_atkins.pdf

Edu­ca­tion exception

This is basi­cally an exclu­sion from copy­right for the pur­poses of edu­ca­tion, research, teach­ing, schol­ar­ship, and non­profit edu­ca­tional pur­poses. The later one basi­cally is church work. The courts give oth­ers (non-copyright owner) rights to use copy­righted works. In other words, when a teacher deems that some mate­r­ial has value for his stu­dents, he has the per­mis­sion of the law to make copies of that mate­r­ial for their benefit.

Fair Use

This is the right for other peo­ple (with­out the copy­right owner’s per­mis­sion) to quote the copy­righted text with­out per­mis­sion for pur­poses of crit­i­cism, par­ody, etc.

Atkins says

Always assume a work is copy­righted unless it is obvi­ously within the pub­lic
domain (that is pub­lished in the U.S. prior to 1923).

As you can see, Atkins com­pletely lumps all works under the longest time span as far as being under copy­right. (2010–1923 is 87 years, which where that came from I don’t know.)

Fair use con­sid­er­a­tions come into bear­ing here as to how much of the orig­i­nal work you quote. Within schol­arly pur­suits, quot­ing even large amounts of a copy­righted work has always been per­mit­ted, but not to degree of repro­duc­ing a text­book in pho­to­copies as an alter­na­tive to pur­chas­ing one.

http://www.copyright.gov/title17/92chap1.html#107

the fair use of a copy­righted work, includ­ing such use by repro­duc­tion in copies or phonorecords or by any other means spec­i­fied by that sec­tion, for pur­poses such as crit­i­cism, com­ment, news report­ing, teach­ing (includ­ing mul­ti­ple copies for class­room use), schol­ar­ship, or research, is not an infringe­ment of copy­right. In deter­min­ing whether the use made of a work in any par­tic­u­lar case is a fair use the fac­tors to be con­sid­ered shall include —

(1) the pur­pose and char­ac­ter of the use, includ­ing whether such use is of a com­mer­cial nature or is for non­profit edu­ca­tional purposes;

(2) the nature of the copy­righted work;

(3) the amount and sub­stan­tial­ity of the por­tion used in rela­tion to the copy­righted work as a whole; and

(4) the effect of the use upon the poten­tial mar­ket for or value of the copy­righted work.

So this is sim­ply pre­sented by the US Copy­right office as a mat­ter of (1) being com­mer­cial, i.e. you make finan­cial gain from it, (2) whether you repro­duce the major­ity of the work, or (3) whether your use causes a sign­f­i­cant finan­cial effect on the copy­righted piece.

So basi­cally, using a work that is not being sold else­where means it is legal. No neg­a­tive mar­ket impact, no copy­right infringement.

Lim­ited Use

This is a per­mis­sion for some use given by the owner to those who make use of his work.

To read Atkins arti­cle, you would think that this is the only per­mit­ted use of any copy­righted work. This is incor­rect and totally out of sync with the court cases and law for copyright.

What the intent of the copy­right law is

The entire copy­right law sys­tem has a basic under­ly­ing pur­pose, which is to pre­vent oth­ers from prof­it­ing on an orig­i­nal con­tent owner’s work. We could debate what the pub­lish­ing com­pa­nies do here, but I will leave it alone. To repro­duce some­body else’s work and sell it (make gain), is ille­gal, and this is the pur­pose of the copy­right law. To repro­duce it with­out mak­ing gain is also ille­gal, but the fines and court ordered things are much less severe, espe­cially where the orig­i­nal copy­right owner has no pub­lic sell­ing of his work (it is out of print), and he is unreach­able by those pur­su­ing proper per­mis­sion paths to the copy­right owner.

What some peo­ple are insist­ing (incorrectly)

Ref­er­ence: copy­right issues http://www.memphis-umc.org/news/copyright_issues_atkins.pdf

Exam­ple 1 — Pas­tor quotes from a copy­right book in his sermon.

Atkins says that even quot­ing from a copy­righted book in his ser­mon notes (whether he reads it tex­tu­ally or not) and dou­bly wrong if he reads it, is a copy­right infringement.

The courts have always defended lim­ited use of a copy­righted work as legal. In the edu­ca­tional use of mate­r­ial it is also legal for more larger amounts of text. To try and kill all pas­tors from quot­ing any­thing from any mod­ern book is sim­ply try­ing to destroy using any­thing modern.

Under Fair Use, there is no neg­a­tive eco­nomic impact on the book pub­lish­ers because they are not quot­ing sub­stan­tial parts of a book, and quite the oppo­site, a Pas­tor quot­ing a book in his ser­mon could cause a pos­i­tive eco­nomic effect, i.e some­body buys the book because he heard it mentioned.

Exam­ple 2 — A con­gre­ga­tion uses quotes in a bul­letin or newsletter.

Again, where does he get this stuff? You can­not quote or refer to any­thing in any con­text that is under copyright?

Under Fair Use, again there is no neg­a­tive impact and the issues are in gen­eral going to per­mit copy­right use because it is not a sig­nif­i­cant (major­ity of the book) or because there is no neg­a­tive impact, and there is no real eco­nomic gain. The idea of eco­nomic gain is that a mag­a­zine 40 pages long has 35 pages of quotes out of a sin­gle book, and that would be the major­ity of the book quoted. The mag­a­zine is sold, so the orig­i­nal mate­r­ial minute, and the quoted mate­r­ial is the major­ity of the mag­a­zine, then this would be com­ing close to or is copy­right infringement.

Exam­ple 3 — Pro­jected words to hymns and songs

Atkins makes a big case for any­thing you see in a com­mer­cial pack­age (book for exam­ple) is copy­righted and there no able to be repro­duced, used, or sung. That is not true. For exam­ple, he says “For exam­ple, the United Methodist Hym­nal is copy­righted.” The Hym­nal is copy­righted, but the major­ity of the songs in the hym­nal are prob­a­bly pub­lic domain. It is not wrong to get a pub­lic domain text or song from a copy­righted book, and use it as you wish. The tune, words, and other parts of the song can be used, but you can­not pho­to­copy the actual page of the book which is under the book’s copyright.

http://www.copyright.gov/title17/92chap1.html#110

The Copy­right clearly give the per­son who legally pur­chased a legal copy of a piece of music the fol­low­ing right.

(3) per­for­mance of a non­dra­matic lit­er­ary or musi­cal work or of a dramatico-musical work of a reli­gious nature, or dis­play of a work, in the course of ser­vices at a place of wor­ship or other reli­gious assembly;

This pro­vi­sion of the copy­right law makes the use of music, songs, and text of songs a legit­i­mate use. I am no lawyer I remind you, but this is very obvi­ously the intent of the Copy­right Law­mak­ers. Why do peo­ple want to restrict your legal rights? Isn’t this ille­gal? Yes it is. But it is “fair” for them in the game of big business.

Exam­ple 4 — Song Copy­right infringe­ment for using any song under copyright

The above state­ment from the US Copy­right office again clar­i­fies that this is just a gross mis­con­cep­tion. It is legal to sing a copy­righted song in a church. So when you hear these things, think big busi­ness is want­ing a cut of what goes on in local churches, even though the law doesn’t allow them that.

Ille­gal copy­right “owners”

Some peo­ple become “copy­right police”, but the bot­tom line is that nobody can inter­cede on behalf of the real copy­right owner with­out writ­ten legal per­mis­sion from the copy­right owner. In other words, if any­body except the owner con­tacts you, they are break­ing the law by pre­tend­ing to rep­re­sent the owner. Any and all agree­ments, con­tacts, and pur­chases of per­mis­sion between a copy­right owner and a user can be main­tained in pri­vate, and nobody else has a right to know if any such thing exists.

Fur­ther Reference

All copy­righted works before March 1, 1989 had to have a copy­right notice to be legally copy­righted. http://www.copyright.gov/circs/circ14.pdf (See head­ing “Notice of Copy­right” page 3).

See Uni­ver­sity of Pennsylvania’s page on Copy­rights, http://onlinebooks.library.upenn.edu/okbooks.html They list many spe­cific coun­tries copy­right laws.

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