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InfobITS logo, volume 7, number 2, winter 2001.

 

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Copyright Infringement on the Web
by Ward Takamiya

In our modern-day cut-and-paste world of personal computing, it is increasingly important to be aware of copyright laws in order to avoid violations and the risk of being sued--either individually or as the institution of the University of Hawaii. With everyone from the novice to the veteran publishing home pages on the World Wide Web, it is relatively easy to find examples of innocent, or sometimes blatant, misuse of copyrighted materials. Copyright laws are complex, ever-changing, and full of "gray areas." However, with a few basic principles explained, you should have enough of an understanding to protect yourself--and the UH--from possible legal battles.

What is a Copyright?

Copyright laws have been in place for centuries. They were created to protect the legal owner of a piece of work by making sure that proper credit is given for the creative effort. Copyright laws also provide a way to recover costs (i.e., file lawsuits) in cases where infringement has occurred, such as when copies of the work is redistributed without proper permission.

In its broadest interpretation, a copyright is the legal right of ownership granted to the creator of any original work that is published either in tangible form (e.g., on paper) or in digital form (e.g., on the Web or on CD). The original works may include literature, music, drama, art, photographs, and more recently Web pages, e-mail messages, and databases. Facts or ideas are not included in this list of copyrightable material.

Since 1989, U.S. copyright laws say that any original work created and published is automatically considered to be copyrighted; no notice of copyright is required to be on the work itself, and it need not be officially registered. However, a copyright notice (e.g., © Copyright 2001 University of Hawaii) can help to provide further proof of ownership. Official registration is required only for those who would consider filing a lawsuit for monetary damages in the case of a violation.

Examples of Copyright Infringement

A blatant example of copyright infringement is demonstrated when a Web page is set up with the purpose of allowing someone else's music, videos, or software to be distributed and downloaded without the owner's permission. Though some may consider it a totally innocent 'fan' site that idolizes, say, a musical band by putting up snippets of their songs, lawyers might consider it a detriment to the livelihood of the musical group and may want to try to recoup lost sales by suing for damages.

The following list includes material which should not be present on your Web page:

Music. Distributing pre-recorded music files (e.g., MP3, WAV, or AIFF) on the UH Network for others to download is strictly prohibited. The Recording Industry Association of America (RIAA) represents recording artists in the U.S. and will go to enormous lengths to protect its clients from those who illegally circulate copyrighted music.

Video. Pre-recorded video files (e.g., MPEG, QuickTime, etc.), including trailers from the Motion Picture Association of America (MPAA), will get you in trouble if you download and put them on your page.

Software. Any software programs that are not written and owned by you should not be on your Web page where others can download it. When a commercial software application is purchased, you are only buying a license to use it -- you do not own the software itself and therefore you are not entitled to redistribute it. "Public Domain" software, although freely available, is still legally owned by the author and should not be redistributed without permission. The Software & Information Industry Association is the guardian for software distribution and the anti-piracy effort.

Pornography. Whether permission is obtained or not, and even if you are the actual copyright owner of the material, pornographic images and video have absolutely no place on the UH servers.

If it is discovered that your home page contains any of the above materials, you will be promptly asked to remove them or your ITS Username will be disabled and/or network connection blocked. The University of Hawaii and Information Technology Services will cooperate with authorities in cases where lawsuits are filed or criminal investigations are initiated.

Papers and Journals. Of course, any research papers, journals, or other sources of reference should not be copied and passed off as your own; that would be cheating. In most cases, you may choose to quote a passage or include an image in a report under the "fair use" statute (see below) with proper credit, but you may need to obtain expressed permission in some cases.

Photographs and Graphics. If you include any photos on your Web page that you did not take yourself, or any graphics you did not create on your own, you may be in violation of copyright laws. For example, don't even think about including a Dilbert comic strip on your site. The following is stated in the Dilbert Web site's FAQ:

"If you display an element from our site on your Web page, you have altered our material and redistributed it without our permission. Altering our copyrighted material in any way is a violation of United Media's copyrights."

Fortunately, there are many sources of freely available clip-art available in the public domain that you can use and some may even be included with your purchase of various software packages.

Linking to Another Web Site

You should consider any other information found on the Web to be copyrighted. If you provide a link to material on someone else's Web site from your page, it shouldn't be an issue as long as it is clear that the link is going to another site. Some pages even provide a graphic button for you to use on your page to link to their site. However, you can get into trouble if you try to "frame" the information within your page so it appears to others that the information (or site) is your own.

Fair Use

For teachers, researchers, and students, a special provision of the copyright statutes exists where limited parts of the original author's material may be copied and used without the requirement of obtaining the owner's written permission. This means that in a thesis or report, you may quote some passages of a book, or include a picture that you might use as a reference to support your arguments, provided proper credit is given. However, this concept of fair use is not always black-and-white. Each case must be considered individually, with tendencies leaning one way or the other depending on the circumstances of what is used and how it will be used.The University of Texas has a great site on the Four Factor Fair Use Test to determine whether a piece may be covered by the fair use provision. The test asks four questions:

1. What is the Purpose and Character of Use? If it is for personal or educational use, then it leans towards the side of fair use. If the intended purpose is it for commercial use, it leans away from fair use and towards the need to obtain permission from the author.

2. What is the Nature of the Copyrighted Work? If the original work is mostly factual data, then the tendency is to allow for fair use. If the original is mostly creative work, it leans the other way.

3. What Amount and Substantiality of the Portion Used of the Copyrighted Work? If it's just a small portion of the work you’re borrowing, the balance tips towards fair use. If you plan to use a significant amount of the original, the scale tips in the other direction.

4. What may be the Effect Upon Potential Market or Value of the Copyrighted Work? If you widely distributed your paper or Web page, will it affect the original author financially? Are you taking away the original author's business by publishing your work?

Even with this test, be cautioned that the outcome is not definitive. The test is based on judgment as to which way the scale tips for each question. If it tips towards the "fair use" side of the scale, you should be able to use the copyrighted material; if it tips in the other direction, it would be wise to obtain permission from the copyright owner or play it safe and not use the material at all.

The University of Hawaii's Responsibilities

Signed into law by former President Clinton, the 1998 Digital Millennium Copyright Act (DMCA) is the first major update to copyright laws that include the handling of information in the digital age. Included in this Act are provisions for the responsibilities of the "Service Provider," a category that Information Technology Services (ITS) and the UH fall into since we host e-mail and Web services for the UH community. In order for the UH to protect itself from potential lawsuits, it needed to file with the Copyright office the agent who will receive notification of claimed infringement of copyright, and to post its current copyright policies on a Web site. Then, whenever the UH receives a claim of copyright infringement, it must act upon gaining such knowledge in order to limit liability. This means that ITS and the UH are required to investigate, and possibly disable ITS Usernames or take other more drastic measures if necessary. If nothing is done, the university can become liable and the target of a lawsuit.

In Summary

Copyright laws are extremely complex but with some prudence you can protect yourself from being the target of a cease-and-desist order or, worse, a potential lawsuit. When it comes to using parts of published works belonging to others, take the Four Factor Fair Use Test to see if you should obtain permission to use copyrighted material. When in doubt, ask for the author's permission or don't use the material in question at all.

Useful Links

A Crash Course in Copyright from the University of Texas

www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm

What Colleges and Universities Need to Know about the Digital Millennium Copyright Act

www.educause.edu/ir/library/html/cem9913.html

The Digital Millennium Copyright Act (from EduCAUSE)

www.educause.edu/issues/dmca.html

Notification of Claimed Infringement of Copyright

www.hawaii.edu/infotech/policies/dmca.html

 

Disclaimer: The author is not an attorney and does not purport to understand all the laws. If you have any questions or concerns about legal issues, please consult the proper authorities.

 

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Updated: November 21, 2001