Last week I spent an hour talking to my 13 year old niece about copyright. She likes to create new videos from old videos. She gets videos online or from DVDs. She modifies them. She posts her videos online. Her question – her worry really – Is it illegal to use old videos to create new videos?
I wish my grown up clients had half the foresight she has to recognize that copyright matters. Unfortunately I didn’t have a clear cut answer for her – except to say that copyright is in transition. And then I realized that maybe all of us could use a refresher on copyright. As a librarian, I think of myself as pretty up on the issue – but I hadn’t really looked at the issue for a while either. Part of the transition can be blamed on the increased ease of publishing due to technology (and broadband) – but I think the bigger issue is the byproduct of that change. Most of us are now both consumers and producers of content, which means we care about the wholesale and retail aspects of copyright. In my niece’s example, she wants to be able to use the video clip from Disney to create her mashup; she also wants credit for the new work she has created. I rationalize that this fits in a blog about broadband because it’s just one of many ways that broadband is changing the rules by which we live.
The University of Maryland has a nice primer on copyright and fair use. In short, you can copyright a creation or idea that has been “fixed”, which might mean written, painted, recorded, even by a cell phone. You cannot copyright a fact and you can’t copyright access to a work (so you can’t copyright web links). It’s tough to protect short phrases, although that may lead to Trademark issues.
Many folks refer to Fair Use. The University of Maryland primer covers this too. They highlight four factors to consider:
- The purpose and character of the use – does the new use significantly change the original or appeal to a new audience? Is the new use for educational or nonprofit purposes?
- The nature of the copyrighted work – is the original work published or unpublished, more factual or creative? (Unpublished, creative works are tougher to use.)
- The amount and substantiality of the portion used – generally the more you use, the less you can claim fair use.
- The effect of use on the potential market for the copyrighted work – does your new use compete adversely with the original?
There is a more recent ownership tool that has been created to support online digital rights that promote sharing – the Creative Commons. The Creative Commons tracks six levels of openness and allows you to easily tag your work by levels, from allowing anyone to do anything with your work to allowing people to share only and requiring credit.
Now just to take a glimpse at specific copyright conundrums:
Copyright for Artists
I saw a great talk last summer on how “Everything is a Remix.” Kirby Ferguson mentioned a range of artists from Bob Dylan to Danger Mouse and moved onto Steve Jobs to describe the create process: copy, transform and combine. The role of technology as a tool for self-expression has itself been transformational so to try to cap that cap that transformation with copyright would be difficult – and in many ways I think folks have recognized that. (For another great look at the impact of technology on art, check out Larry Lessig’s talk Laws that choke creativity; he starts with John Phillip Soussa!) For my niece I found a great lesson plan (wonderful tool for educators!) on Fair Use: Remix Culture, Mashups, and Copyright. The answer to her worry really was in the Fair Use clause – that so long as the work was transformed and did not have an effect on the potential market, she was OK to copy, transform and combine.
The second edge of that sword, however, means that someone can use her work in the same way. There’s a blog maintained by a graphic artist that has some good, practical advice for artists on how to register copyright, consider licensing agreements, use social media to shame others to respecting your copyright and more.
Part of the issue with artists I think is feeling like copyright is going to be a David and Goliath issue, that either you’re too small to get noticed or the offender is so big you’d never be able to afford a confrontation in court. While it’s true there are so many more outlets for creative expression and it seems impossible to track them all, it’s something the big player – especially those who host content are considering as they move forward. Check out the Video on how YouTube thinks about copyright:
More and more technology is turning out to be the solution – as well as the disruption.
Copyright for Schools
Schools and teachers have always seemed to have a special relationship with copyright – they are called out by name as an exception that makes the Fair Use case. There is a recent effort to make materials even more open, Open Educational Resources – born of the marriage or shrinking budgets and increased use of devices in the classroom I’m sure. The video probably does as a good a job as any explaining the ideal. The hiccup of course is that to access much of the Open Educational Resources, a school must have a broadband connection, the teacher must have access to a computer and often the tools are optimized when the students have access to devices. All of which cost money too.
Copyright for Journalists
The Center for Social Media published a report in February (2012) on copyright and journalists – or really on Fair Use for journalists: Copyright, Free Speech, and the Public’s Right to Know: How Journalists Think about Fair Use. As alluded to above, journalists are wrestling with two sides of the coin…
An internal memo distributed to Associated Press executives in 2009 noted: “The evidence is everywhere: original news content is being scraped, syndicated and monetized without fair compensation to those who produce, report and verify it. AP’s legal division continues to document rampant unauthorized use of AP content on literally tens of thousands of websites.” Since then, the AP has worked to patrol and charge users for its content.
Copyright litigation has even become a business model, if briefly and unsuccessfully. The copyright holding company, Righthaven, purchased the copyright rights to newspaper stories from large metropolitan dailies, such as the Las Vegas Review-Journal and the Denver Post (which in 2011 opted out of what its CEO called a “dumb idea”), and without warning sued those quoting from that material. Small-time bloggers were often intimidated into paying hundreds or thousands of dollars to Righthaven, even when they may have been correctly employing fair use. When cases went to court, though, Righthaven’s claims were summarily rejected; Righthaven’s ability to claim standing was shaky, and so was its claim that users had infringed rather than employing their fair use rights. Now, Righthaven’s very existence appears in doubt.
At the root of the issue is the desire to bring information to light balanced with a growing concern for being sued. The concern for everyone is the impact this dilemma may have on bringing information to light.
The American University School of Communication has a range of “Code of Best Practice” books that also address copyright for specific audiences.
Copyright for Social Media Users
Finally is a situation most of us have to deal with on one level or another – copyright and social media. The same rules hold true in terms of what images, music text you have permission to post. (Facebook for example clearly “prohibits users from posting content that violates another party’s intellectual property rights .” But I think the bigger question is who owns the material you have posted. I could do a whole post on that alone – so to be brief I’ll just look at Facebook. They maintain that, “You own all of the content and information you post on Facebook.” But they go on to say that they have permission to use it until you delete that content (Intellectual Property) unless someone else has saved your content as it would not be deleted through their account…
- For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.
- When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).