Heather Bussing is a regular contributor to our HRExaminer Editorial Advisory Board. Heather has practiced employment and business law for over 20 years. She has represented employers, unions and employees in every aspect of employment and labor law including contract negotiations, discrimination and wage hour issues. While the courtroom is a place she’s very familiar with, her preferred approach to employment law is to prevent problems through early intervention and good policies and agreements. Full bio…
Ideas Are Free But Content Isn’t- Copyright and the Internet
by Heather Bussing
I’ve seen lots of questions and opinions lately about when it’s okay to use someone else’s content, why scraping is not okay–but excerpting and linking is and what constitutes plagiarism.
First, the law is way behind reality. Almost all intellectual property law is based on the idea that there is something tangible that you can own and attach ownership rights to—like a book or a song or a painting.
Most internet content is organic: it changes quickly in both form and content and is distributed infinitely within minutes. It can be edited over time—sometimes by the author—or with a wiki or a social network site–by the entire community.
This is not something you can cart into a courtroom as Exhibit A. Internet content changes every time someone joins a community, posts a new article, comments, makes a friend, or adds a photo or video. There is no HR Examiner or Facebook page or Twitter, especially Twitter, that you can print out or point to as being a specific thing over time.. The law can’t begin to handle that.
Ideas Are Free
Next, the basic principle of intellectual property law is that you can NOT own an idea. Ideas are free. It’s only when an idea takes form through publishing or creation of a thing like a photograph or a play, that ownership rights attach.
Those ownership rights– intellectual property, are either industrial or copyright. For a great discussion of intellectual property law, see the Manual by the World Intellectual Property Organization here.
Industrial rights are generally patents and trademarks that apply to inventions, scientific discoveries and commercial use of trade names and logos. The primary purpose of industrial rights is to protect against unfair competition and to give the inventor or first creator an initial protected right (usually 20 years) to make money from the creation.
It takes a lot of investment in time and energy to create something—not so much to steal it from someone else.
Copyright covers every other pin-downable expression of ideas– including print, music, plays, artwork, film and recordings, and digital works such as computer programs or databases. Copyright does not cover the ideas themselves.
So I could wonder aloud: Hmmm. Wouldn’t it be a great idea for lawyers to hire sourcers to find witnesses and get background information on the people, judges and attorneys involved in a lawsuit? My wondering aloud is just an idea that I’m playing with. But now that I have written it down in this blog post, I think that I should get an equity share in your sourcing business for lawyers because the idea was mine.
Except that intellectual property does not protect the idea. All a copyright protects is the unauthorized use of your work in the form that you create it. So I don’t get an equity share in your sourcing business after all. It was still just an idea that you can use. It’s just that you can’t copy my blog post without my permission because I have a copyright to these words in this particular order. (It’s a great idea though and I still want an equity share.)
You don’t need to do anything to copyright the things you write. It happens automatically by creating it and putting it out in the world. You can register your work and get additional protections, but you have the copyright just by creating the work.
Gift or License
When you give permission for someone to use or copy your work, it can either be a gift or an exchange for value.
A gift is just that—you let someone have it and use it. If you give it as a gift, you can’t take back permission. Gifts are irrevocable.
An exchange for value is usually a license. A license is when you give someone permission to use your stuff. Licenses are revocable by the person who gives it.
So if I grant an online community like Facebook or Recruitingblogs or ERE a license to use and publish my posts, I can change my mind and take it back—delete my post and member page and quit.
You can also sell various forms of rights in your written work. So a book contract usually grants the publisher very broad rights to use and sell the story for a certain amount of time in exchange for a percentage of sales. It’s often called selling the book, but it’s really a license to publish and sell the published versions. The author still owns those words in that order.
Or you can sell the whole thing.
Plagiarism is a related idea that has to do with taking someone’s words and saying they are your own. Plagiarism always involves a copyright violation—but the idea is that you stole the credit as well as reproduced it without permission of the real author.
Fair Use Doctrine
The place that users and the courts are struggling with is what constitutes reproduction. Generally free use includes quoting from a work, provided the author is mentioned and the quote is not extensive (fair use doctrine). Other free use includes using a portion for news reporting or use of the work for illustration in teaching or for educational purposes.
How much of an excerpt is fair use? No one knows. The Fair Use Doctrine is part of the Copyright Act that sets out the factors to determine whether a use should be free or whether the author should be compensated for the use. There are four factors which are intended to be nonexclusive guidelines in determining whether the use is Fair Use:
1. Whether the use is for commercial purpose or for educational or non-profit purposes;
2. The nature of the copyrighted work;
3. The amount and percentage of the copyrighted work that was used; and
4. The effect of the use on the potential market for or value of the copyrighted work.
The courts have not really dealt with blog excerpts yet. They have dealt with thumbnail images which are copyrighted photographs and images you can find all over the internet and anytime you do a Google image search. The 9th Circuit in Google v. Perfect 10 has determined that thumbnails are basically an excerpt of the full sized image, so they can be used on the internet without compensating the image creators. If you have time, this case has a great description of how the internet works. (As a photographer, I’m not sure I agree with the result, but as an internet user, I think it’s the right one.)
How to Use Other People’s Work on the Internet
With these principles in mind, excerpting a short quote with a mention of the author and a link to his or her original post is the proper way to use another blogger’s material. Copying the whole thing is illegal and a clear copyright violation—you owe the author money.
There is a good argument that failure to link to the original post can be a copyright violation too because the value of a good post on the internet is the traffic and exposure the post receives. Traffic is what advertisers look for when they decide to spend their money on an ad. Traffic is also what moves a website to the top of the pile in a search -which is how you or your product gets found. If no one reads you, it doesn’t matter what you say.
So when you use someone’s work on the internet, always give credit, don’t copy the whole thing and always link to the original post.