Tuesday, November 19, 2013

A long discussion about copyright

One of the longer discussions I have had recently involving genealogy had as its subject certain interesting copyright issues. The genesis of the conversation centered around the concern of a researcher that her "copyrighted" article was being shared online without attribution. The whole hour long discussion could be summarized with one statement, "If you don't want it copied, don't put it online."

Although copyright protection is automatic, the individual author or creator of a copyrighted work can always make the individual decision as to whether or not to enforce the copyright. Just a reminder, under the provisions of the Berne Treaty, as ratified by the United States, all original works are automatically subject to copyright regardless of whether or not a copyright symbol or claim to the copyright is present on the published work. This even means that all blog posts, to the extent that they are original works, are automatically protected by copyright law.

The reality of online publishing is clearly different than the strict interpretation of the copyright law would allow. Technically, I should be out on the Internet searching for anyone who has potentially violated my copyright by copying substantially all of one of my posts. Whether or not you wish to take this sort of action is entirely up to your personal views on the need to enforce a copyright claim. Obviously, if you intend to sell your writing you may be more concerned about copyright and someone who is writing casually or for other reasons besides making a profit.

One issue that came up in the context of the hour-long conversation about copyright was the question of attribution. Whether or not the work is attributed as nothing at all to do with copyright. You're not protected from violating an author's copyright merely by giving attribution to the originator of the work. The question of whether or not you provide attribution is a question involving plagiarism. If you copy a work without attributing the original author you are plagiarizing. There may also be an additional question as to whether or not what you copied violates the author's copyright but that is a strictly legal issue governed by the copyright statutes.

If you allow others to copy your material without asserting a copyright claim, you may lose your copyright by allowing extensive republication of your work. At some point, if sufficient copies are made of your work it may be deemed to be in the public domain regardless of your intent to assert copyright at some point of this process after the extensive publication. So, for any work for which you wish to claim a copyright, you should assert the copyright consistently from the time of the initial publication of the work.

Another question that came up in the conversation was whether or not a third-party could publish your copyrighted work if you had given permission to the third-party for an initial publication. For example, suppose you give an article to a commercial website for publication but reserve the copyright. By reserving the copyright you retain the right to enforce that copyright against any unauthorized republication of work. But if you are involved in this kind of arrangement, you must be extremely careful in understanding the nature of the agreement between yourself and the publishing party. Just as an example, if you look carefully at the terms and conditions for many of the genealogical websites you will see that posting your material online may give the hosting website full control over your material even if you retain the copyright.

Additionally, you should always bear in mind that asserting a copyright claim can be extraordinarily expensive. The United States Federal District Courts have original jurisdiction over all copyright cases. This means that you cannot file a copyright claim in your local small claims court or even in any of your state courts. Pursuing a copyright claim in the Federal District Courts is not only expensive but extremely complicated. Before getting involved in attempting to enforce a copyright claim you may wish to consult a competent legal practitioner in the area of intellectual property law for a clear explanation of what is involved in pursuing a claim in Court.

One of the things that I find amusing and even sometimes annoying are people who are so concerned about protecting their copyright interest but they fail to understand that the material that they have produced has absolutely no value unless it is freely distributed. This is particularly true of family histories written for a very limited audience. I always wonder who they think is going to pay for the book unless they do so out of an obligation to the family. I would guess there are huge numbers of family history books published in beautiful binding sitting in garages and basements around the United States because not only can the books not be sold but no one in the family is even interested in having a copy if they have to pay for it. As a matter of fact, I have a couple boxes of books in my garage that I inherited from my father. In many instances, I have found that I cannot even give them away. In this case, as I have already done, the best way to solve this problem is to digitize the book and make it freely available online. You may still have the boxes in the garage, but your family will have free access to the book.


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