ankgoel@violet.waterloo.edu (anil k goel) (02/16/89)
In article <11535@watdragon.waterloo.edu> I wrote: >--------------------------------------------------------------------- >"it is unethical to publish/mail a copy of the articles written > by other people without obtaining a written permission from the > authors. Otherwise you may be guilty of copyright violations. > You can't even taperecord a telephone conversation without the knowledge > of the other party." >--------------------------------------------------------------------- > >I disagree strongly with any opinion amounting to this because of the >following reasoning. > [deleted for brevity. please read that article for details. The essence of what I said is that "there are no copyright violations when somebody makes hard-copies of articles posted on the net by others and then mails these hard-copies to some other people for the purpose of informing them and of inviting their comments on the contents of the articles.] I was subsequently challanged (well, invited) to find evidence in the copyright laws of any nation to support my views. Now, I am no lawyer and when I wrote the above article, I relied on my commonsense and a sense of justness. But, I believed in what I said and therefore, decided to do some research in my library. As a result of this, I am able to reiterate what I said before. In this article I wish to share some of my findings with fellow netters. The three most important things that are relevant in this context are as follows. 1. NOT EVERYTHING IS PROTECTED UNDER COPYRIGHT LAWS. Most nations have very specific categories to determine whether something I create is entitled to protection or not. Almost all of the existing acts broadly consider the following to be the subject matter of copyright. a) literary works, b) musical works, c) dramatic works, d) choreographic works, e) sculptural works, f) motion pictures, g) artistic works, h) sound recordings, etc. Certain categories are generally excluded from protection. And it so happens that by their basic nature, most of the articles that are posted on the net are not entitled to copyright protection. Therefore the question of violations does not arise. To illustrate this point, I quote from my reference: "(Under the US copyright act) Excluded from copyright protection are ideas, systems, methods, processes or principles, no matter how unique the concept. Other areas denied copyright protection include standard works which include information that is common property, such as calenders, height and weight charts,......" 2. LIMITATIONS AND FAIR USE IN COPYRIGHT. Even when something qualifies for protection, there are certain limitations on the rights of the owner and almost all existing acts recognise the concept of "fair use" without the consent of the owner. The extent to which fair use is allowed varies from nation to nation and I present examples from some representative nations, later in this article. "The issue of fair use has always been contraversial. Despite the doctrinal disputes, fair use by someone other than the copyright-holder appears to have been recognised from an early date, at least by the courts. Today, fair use limitations are included in the relevant international conventions and in national legistaion, even though the detailed rules vary considerabely". The rational for allowing free fair use. ======================================== "The nature of copyright is based on the formulation of exclusive, more or less absolute, rights granted to the creator and his assignees. HOWEVER, social reality is not abstract and social intercourse is not conducted in absolute terms. Therefore, in actual fact, copyright can not be dealt with in abstract,absolute terms. Copyright finds itself in a measure of opposition to other social objectives and requirements: the requirement of cultural life and collectivity, the needs of information in modern society and the protection of privacy. "In order to satisfy these other requirements in the face of exclusive copyright demands, it has been necessary to resort to the awkward procedure of 'limiting' copyright or to the equally awkward idea of 'depriving' the author of the control over certain uses (called 'admissible', 'free', 'fair', etc.)". 3. MORAL RIGHTS OF THE AUTHOR. "Even when no remuneration is required on account of fair use consideraions, generally the moral rights of an author remain unimpaired. Modifications of an author's work are generally prohibited and the authorship of a work must be indicated". What exactly constitues "fair" use of a copyrighted work? ========================================================== This is one of the most interactable problems faced by copyright designers, and a number of vastly different solutions have been proposed. In practice every nation with a copyright act has adopted its own meaning of "fair" use according to their own specific requirements. I present examples below from a number of represantive national copyright acts (BTW, the international copyright conventions also acknowledge fair use). 1. U.K. ------- "In the case of literary, dramatic and musical works, fair dealing is permitted for the purpose of research and private study, criticism and review, the reporting of current events in certain speified media (newspapers, magazines and periodicals, broadcasting, films)." 2. U.S.A. --------- (sec 107 on fair use) "The fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research is not an infringement. Four factors are are to be considered to determine the applicability of fair use. They are: a. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit, educational purposes; b. the nature of the copyrighted work, c. the amount and substantiality of the portion used in relation to the copyrighted work as a whole. d. the effect of the use upon the potential market for, or value of, the copyrighted work." 3. France --------- "The French have generally avoided delineating the circumstances in which intellectual property may be used without renumeration, apparently preferring to allow the courts to develop the law in this area on a case- to-case basis." 4. Germany ---------- "The Germans have enacted eighteen specific provisions on the subject of Limitations on Copyright. Thus the German law on the difficult issue of fair use appears to be one of the clearest in the world". The following, among others, is considered fair use. . news-reporting, . making a single copy of a work for personal use. 5. Sweden ---------- The following is allowed as fair use: . reproduction of single copies for private use . libraries and archives are given a limited right to make photocopies of works for their internal use. . news reporting of current events. . recording of statements at public meetings. 6. USSR ------- Seven instances have been enumerated in which the doctrine of fair use is applicable. . utilization of a published work for the creation of a distinct new independent work. . the reproduction of works within the limits specified . the reproduction on a nonprofit-making basis of printed works for scientific, educational and cultural purposes. . etc. 7. Tunisia ---------- "The Tunisian law establishes several uses which require no payment of a copyright royalty." "One such use is the nonprofit performance or broadcast of a work for private or educational purposes. In addition, individuals may make single-copy reproductions for private and personal use and schools may reproduce broadcasts, sound-recodrings and audio-visual material. Finally, a limited use of quotations and reports of current events is permissible for commentary and news-reporting purposes". 8. India -------- "Scetion 52, one of the largest provisions of the Indian copyright act, establishes India's policy regarding the fair use of copyrighted works." "Coming within the scope of 'fair use' is use for research or private study, criticism and review, and the reporting of current events. Furthermore, collections may include "short passages from literary and dramatic works" provided the publication is intended for educational institutions. Works may also be reproduced by teachers or students in the course of instruction". ACKNOWLEDGEMENT --------------- The quotations in this article have been taken form the following text. "Copyright - Intellectual Property in the Information Age", by Edward W. Ploman and L. Clark Hamilton. K1420.5, ISBN 0-7100-0539-3 regards, -anil -- (519) 747-1489 "A reasonable man adapts himself to the world, an unreasonable one persists in trying to adapt the world to himself. Therefore, all progress is due to the unreasonable man." - Bernard Shaw.