Copyright or Copy Wrong?

by Gregory Hancks, AIA
AIA Associate General Counsel

Summary: You may know (or think you know) your basic rights and obligations under copyright law. But what misconceptions are commonly held by people you work with, your boss or employees, your clients, or your consultants? You might be surprised.

This is the first in a series of articles exploring various aspects of copyright that are frequently misunderstood. In this installment, we look at what the Internet has wrought.

One wag has predicted that copyright will disappear in a dozen years. Well maybe.

Without a doubt, public perceptions about copying are being affected by the Internet, whether the material to be copied is an article, photos, or music. Contrary to these perceptions, however, during recent years the restrictions on what can legally be copied has actually increased. We will explore some of these expanded restrictions in later articles.

But first, let’s start with three of the most common misconceptions voiced by Internet users.

Too good to be true
Have you ever heard someone say: “If something is posted on the Internet, it is free for copying”?

That view is simply wrong.

Perhaps it is the ease with which copying can be done that is responsible for the perception that material posted online is freely available to reuse. The U.S. copyright statute, which establishes the relevant rights and obligations, makes no such distinction between the copyright in material that is posted on the Internet and the copyright in material that is printed on paper by a printing press or copier. The copyright statute gives the owner of copyrighted work—whether published online or on paper—the “exclusive” right to “reproduce” copies of it or to prepare “derivative works based on the copyrighted work.”

1. Have you ever heard someone say: “If something is posted on the Internet, it is free for copying”?
That view is simply wrong.

If you copy material from a Web site to your own Web site, you are reproducing it. If you post copyrighted material that you don’t have permission to copy, you are violating the rights of the copyright owner. (We will discuss the frequently misunderstood “fair use” exception in a later article.)

One thing that Congress has done specifically with respect to material posted online is to relieve Internet service providers (ISP) from much of the responsibility for what their customers post. The Digital Millennium Copyright Act of 1998 generally prevents an ISP from being held liable for infringing material that an ISP’s customers keep on its servers. The Act also requires the rightful owner to request removal of the infringing material before seeking a court injunction against the ISP.

Your credit isn’t good here
Have you ever heard someone say: “I included the original copyright notice with what I copied and posted, so that makes it okay”?

Again, this is simply wrong.

You don’t get credit for giving credit. In a later article, we will explore the purpose and meaning of a copyright notice (“Copyright 2008 Copyright Owner” or “© 2008 Copyright Owner”).

Reproducing the original copyright notice all but proves that you knew that the material was owned by someone else when you copied it. The fact that you knew you were stealing someone else’s property can result only in a greater penalty, not a lesser one. Of course, attaching your own copyright notice to someone else’s work isn’t the solution either. That doesn’t turn someone else’s work into your own.

Some people may confuse providing a copyright notice with giving an author, photographer, or contributor credit for having created the work. Giving credit is an ethical issue among architects as, for example, under Rule 5.301 of the AIA’s Code of Ethics and Professional Conduct. And plagiarism is a common issue in journalism and in academic circles, where it applies to the work of both students and faculty.

2. Have you ever heard someone say: “I included the original copyright notice with what I copied and posted, so that makes it okay”?
Again, this is simply wrong.

But plagiarism or failing to give credit where due is not a legal issue—at least it’s not a violation of U.S. copyright law. The word “plagiarism” appears nowhere in the federal statutes, which are compiled in the United States Code.

Occasionally you may see a copied work accompanied by a copyright notice like this:

“Copyright 2008 Original Copyright Owner. Reprinted with permission.”

The key words here are “with permission.” This means actually obtaining permission by asking the Original Copyright Owner and receiving an affirmative response.

Which brings us to ...

Good faith or bad confession?
Have you ever seen a Web page that says: “We have attempted to get permission for all posted materials but were unable to locate all of the authors. If you do not want your material posted on this site, contact us to request it be removed”?

This has the same legal effect as including the original copyright notice with the copied material, that is, none at all. It is equivalent to turning on your car’s flashers when parked in a No Parking zone.

A person who owns copyrighted material is under no obligation to respond to requests for permission to reuse the material. The copyright owner waives no rights even if totally unavailable to be contacted with the request. And, to make things even more difficult, the person who is identified as the copyright owner in a copyright notice may not even be the person who has the right to grant permission for reuse. Why?

3. Have you ever seen a Web page that says: “We have attempted to get permission for all posted materials but were unable to locate all of the authors. If you do not want your material posted on this site, contact us to request it be removed”?
This has the same legal effect as including the original copyright notice with the copied material, that is, none at all.

In book publishing, the copyright may be shown in the name of the author, but typically that author has assigned complete rights for publication to the publisher as part of the book deal. So the publisher, not the author, would have the sole authority to allow republication or publication of excerpts.

Where architectural design and drawings are concerned, things are no less murky. The architecture firm whose name appears in the copyright notice on the drawings may have assigned the copyright to someone else. And buildings themselves are not being built with copyright notices cast into the dedication plaques.

As a result, when obtaining permission to use copyrighted material, it is good practice that the document signed by the person granting permission also states that the signer has all of the rights necessary to give that permission.