Copyrights in Cyberspace

By Steve Elias Copyright (c) 1994 Nolo Press, reprinted with permission.

This article originally appeared in the Summer 1994 issue of the Nolo News.

While browsing on an electronic bulletin board, you come across an interesting article on dog training. Thinking it might be of interest to the members of your dog owners club, you download it, print it out and reprint it in the next issue of your clubs newsletter.

Congratulations youve probably just violated federal law.

Dont worry, you wont be hauled off to the federal pen. The law you ran afoul of is copyright law, which gives authors, composers and others who create works of expression certain rights over their creations.

You would probably think about copyright rules if you wanted to republish a chapter of a book, a play or a song you liked. But theyre easy to overlook when youre dealing with electronic media. These bits of information fly around so rapidly and can be reproduced so easily that its hard to remember that someone out there probably owns the right to determine when and how copies are made and used.

All works of expression have at least one thing in common: they are protected by copyright as soon as they are created and fixed in a tangible medium. For the most part, once an expression is entered into a computer in a form that can be read on screen or routed to a printer, it is considered fixed in a tangible medium, even if it is never printed out or saved to a disk. A copyright notice that little (C) followed by the year and the authors name is not required, but is recommended to remind people that the author claims a copyright.

The author of the expression owns the copyright, unless there has been a formal written transfer of that ownership or the expression is created as a work for hire or paid for by an employer. So a person who enters an expression into a computer for other people to see usually owns the copyright on that expression.

What does owning a copyright on an expression mean? Simply, that no one else can copy, distribute, display or adapt that expression without the copyright owners consent. This consent may be given for free, for a fee or on the condition that an appropriate attribution be given. It is always a good idea, if you send material into cyberspace, to explicitly state the conditions for its use and reproduction. As a starting point, therefore, you can assume that you control the right to use any expressions that you author and put online. The important corollary is that any expressions you find online are probably controlled by someone else. and shouldnt be used without permission.

How Copyright Works

Copyright protects expression, not ideas or facts. For instance, information in a telephone book or a weather summary can be freely used. On the other hand, the expression used in an essay on telephones or a creative explanation of weather systems is protected by copyright even though the underlying data and ideas arent.

Copyright law doesnt mean that you can never quote something interesting that you find online. The fair use rule allows you to use a small portion of an expression to comment on it or for an educational purpose. But if you want to use the expression for commercial gain, the fair use exception probably wont apply unless the portion you use is extremely small in relation to the entire expression.

Its extremely difficult to apply the fair use rule to new forms of expression such as the discussions that take place in cyberspace for example, on Internet newsgroups or the conferences on online services such as America Online and CompuServe. A hundred people may each contribute a few lines to a discussion. If you want to use a big chunk of the conversation, must you get every contributors permission? Theoretically, yes, because each contributor owns copyright in his or her words. However, since none of the contributions has any significant commercial value by itself, its hard to see where the copyright owners would be harmed if the entire conversation were used without their individual permissions. Nevertheless, people whose words are used without their permission may be angry about it. It is always better to ask.

One last thing. Copyright is not the only law to be concerned about when launching words onto the information highway. You should also avoid invading a persons privacy or falsely accusing someone of committing an immoral or illegal act.

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