Copyright sense and non-sense

Copyright sense and non-sense

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 (c) instead of ©, which the states that (c) 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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