© copyright versus fair use

Public domain (http://ww.wikieducator.org/Copyright_and_copyleft/public_domain) comprises all the works that are free to use without permission. There are a lot of works on the internet that are in the public domain and hence, not protected by copyright. Ideas, facts, titles, names, short phrases, and blank forms are not eligible for copyright protection. These surprised and shocked me, until I read that ideas are protected by patents, and names protected by trademarks.

This leaves creative expression under the protective realm of copyright.

The Copyright Act of 1976 states that the items of expression can include literary, dramatic, and musical works; pantomimes and choreography; pictorial, graphic and sculptural works; audio-visual works; sound recordings; and architectural works. An original expression is eligible for copyright protection as soon as it is fixed in a tangible form.

For more details on the specific forms of literary, musical, dramatic, visual art, and sound recording works that are covered by copyright, see the http://www.benedict.com/Info/Law/What.aspx web page. One would register their work of expression with the national copyright office to enable them to sue for plagiarism and statutory damages.

When “The Pacifier” was shown online by a Chinese website without permission, the Motion Picture Association of America (MPA) complained to the National Copyright Administration of China last October.

The copyright agency then ordered www.116.com.cn to stop the piracy and fined it US$11,140.

On the international stage copyright law is successful in some cases. The above example from China Daily of China to improve copyright protection has a good outcome for the artists, but I’m not convinced there is complete understanding.

Wang Bin, with the Internet Society of China, yesterday said that to curb Internet users’ habitual downloads of pirated music, software and other products, it is important to technically enable copyright-holders to monitor use of the products and cut their sometimes unduly high price.

I’m afraid it’s more a catch 22 when it comes to the price of art and creative expression. Furthermore, in the proposed Free Trade Agreement between China and Australia (21 June 2005) there was some concern expressed by copyright owners on the protections of their rights.

18. This is even more so the case as a consequence of the move by the copyright industries to the digital delivery of copyright works and the adoption of this technology by educational institutions. The particular circumstances and particular nature of the use of copyright works in a digital environment, such as perfect reproduction and ease of copying and communication, make copyright owners even more concerned that their rights should be protected when trading in their copyright goods with China.

The WIPO disclaimer states that international copyright protection is automatic, it exists as soon as a work is created, and this principle applies in all the countries party to the Berne Convention. According to the list of contracting parties in the Berne Convention, Australia has been there since early 1928 and China since late 1992. Although the creations are copyright and need not be registered in any of the 164 contracting parties, with the ease of digital reproduction and the proliferation of markets for cheaper pirated copies, I can understand the concern of copyright holders.

Can we get around copyright? Well, provided you meet the Fair Use criteria, yes it is possible to use copyright material. There’s some fancy mathematical equation for working out the balance of four factors:

  • purpose of use
  • nature of work
  • relative amount
  • market effect

So what is unfair use? Plagiarism and piracy. People go for illegal choices because there is no legal way to download this stuff. This argument in the LiveWire section of yesterday’s The Age article ISPs join the copyright fight by Lia Timson, indicates we have become spoilt with ab/use of broadband connections. It appears our impatience results in rather direct theft from film-makers and the like.

Have I used images or words on my website that contravene copyright laws? Perhaps for interest and with ease, I have used copyright material on my website. Whilst it all complies with Fair Use, I’d like to start notifying the rights holders before using the material.

From my experience, this request-permission-granted system has worked well for me in further publication of several of my flickr hosted photos. Flickr does a good job of explaining the different licences of use under the Creative Commons area – http://www.flickr.com/creativecommons/ Also of interest to programmers would be The art of the open-source license by Dave McAllister.

Would you be in breach of copyright if you put the Curtin logo at the top of your web page for an assignment? No, provided the logo is copyright-owned by Curtin. Naturally, acknowledge the source, as always.