cosell@bbn.com (Bernie Cosell) (03/23/89)
I'm told that the Berne Convention is coming to the US on 1 April. I've been
trying to understand its implications and I'm having a bit of trouble with
it... but that's my problem... What I'm concerned about is that there's been
virtually NO commentary here about what impact it will have for usenet.
[NB: I've let this be "world" distribution, even though this is only really
a "us" problem because most of you *already* deal with the Berne Convention
and, perhaps, can help illuminate the issues and problems for us.
I have been lead to believe that the *major* difference for us in the
US with the Berne Convention is that the default for "public domain" is
reversed. That is, that in the current environment I think it is the
case that if you "publish" something with no copyright, it is in the
public domain, unless and until you make rather spirited efforts at (in
essence) undoing the publishing. By contrast, ALL published items are
implicitly copyrighted by their authors under the Berne Convention.
(a) Is the fact-of-posting enough to authorize a group's moderator to
"reprint" a posting? I assume so.
(b) If you REALLY don't care (as 99+% of us on usenet probably don't), what
is the Berne-approved method for announcing that something is NOT
copyrighted? We've occasionally joked that some folk on the net should
just stick a "copyright 1989 <ME> all rights reserved" in their
.signatures and that eliminates WHOLE bunches of questions about where
your postings can go and what people can do with them. It is now the
other way: would it be appropriate to include a "not copyrighted" notice
in ones .sig??
(c) what is "fair use" in this environment. If I understand the convention
properly, if I see something interesting on rec.water.sports, I
specifically CANNOT forward it to a friend, nor can I repost it to a
different newsgropu ("bbn.bboard", for example). What *can* we do?
(d) how will this impact the sources/binaries groups? I have always
presumed that anything that comes in with no notice is "copyright
free" and I have had no qualms about installing it on my system, or
sending it to friends, or modifying it (and maybe even reposting
the "improved" version). All of this seems like it will become
marginally-, if not il-, legal with the "implicit copyright" in
place. --- mabye the moderators of the binaries/sources groups
will/should put a "this is in the public domain" notice on their
shar files as they distribute them (and of course, they''ll have to
explicitly get that permission from the authors before they can do
so).
(e) what is the implications for archives? does posting to a newsgroup imply
that the poster is giving permission someone the ability to "republish"
their "work" in any way other than the implicit one (that is, of
forwarding the particular newsgroup in question around usenet)?
Will archive-runners have to make posting-by-posting requests to take
the (now copyrighted) postings and including them in their "collection"?
I ain't a lawyer, so I'm sure that the turns and twists of sorting this all
out go WAY beyond the simple, obvious problems that just immediately came to
mind. Anyone thought about that? Any lawyers in m.l able to give us any
guidance on this? Anyone worried?
__
/ ) Bernie Cosell
/--< _ __ __ o _ BBN Sys & Tech, Cambridge, MA 02238
/___/_(<_/ (_/) )_(_(<_ cosell@bbn.comdlm@cuuxb.ATT.COM (Dennis L. Mumaugh) (03/25/89)
In article <37625@bbn.COM> cosell@BBN.COM (Bernie Cosell) writes:
I'm told that the Berne Convention is coming to the US on 1
April. I've been trying to understand its implications and
I'm having a bit of trouble with it... but that's my
problem... What I'm concerned about is that there's been
virtually NO commentary here about what impact it will have
for usenet.
[NB: I've let this be "world" distribution, even though
this is only really a "us" problem because most of you
*already* deal with the Berne Convention and, perhaps,
can help illuminate the issues and problems for us.
I expect that foreign countries are just as ignorant on its
impact. Only one legal study was done -- by USENIX with respect
to Stargate and that is not fully applicable as it was a true
broadcast. Being subscriber oriented the rules MAY differ.
I have been lead to believe that the *major* difference for
us in the US with the Berne Convention is that the default
for "public domain" is reversed. That is, that in the
current environment I think it is the case that if you
"publish" something with no copyright, it is in the public
domain, unless and until you make rather spirited efforts
at (in essence) undoing the publishing. By contrast, ALL
published items are implicitly copyrighted by their authors
under the Berne Convention.
(a) Is the fact-of-posting enough to authorize a group's
moderator to "reprint" a posting? I assume so.
The law is silent on this but a lawyer with legal resaoning could
argue that it is analogous to that of a TV network showing a
Movie (such as Gone With The Wind). All stations have a one time
license to broadcast. Perhaps a cable network is a better model
though.
For USENET, posting an article is a one time license to
re-broadcast and use. The bit about archiving is analaogus to a
person making a VCR tape of the show and is allowed under the
fair use doctrine. As far as anybody, moderator or not, making
copies of a posting for commerical use that is permitted ONLY if
the poster so permits.
Remember that moderation is of two types: 1) an article is mailed
to a special address for moderation. 2). it is "posted" as a
normal article and the software invisibly mails it to a backbone
machine who forwards it. A moderator may not know the
difference. A poster may not be aware s/he is posting to a
moderated group. Also mailing lists being gatewayed are also
possible. The lawyer could reason that the moderator is an agent
acting under agency for a poster. If the courts asccepted this a
moderator has no authority to "divert" the article for other
uses.
Brad Templeton's policy of requiring formal submission of a
posting eliminates much of the above problem. I trust that he
checks to see that submissions are by humans and not via
automatic software. I also trust his request or acceptance has
the verbiage about granting republicaton rights.
For a moderator to take an article s/he posts and then use it
elsewhere: that is the covered by the concept of republication
rights. E.g. book rights, paper back rights, serialization
rights. I can't legally take a set of sources on
comp.source.unix and build a floppy and market it unless I have
everybody's written permission (moderator or not).
(b) If you REALLY don't care (as 99+% of us on usenet
probably don't), what is the Berne-approved method for
announcing that something is NOT copyrighted? We've
occasionally joked that some folk on the net should
just stick a "copyright 1989 <ME> all rights reserved"
in their .signatures and that eliminates WHOLE bunches
of questions about where your postings can go and what
people can do with them. It is now the other way:
would it be appropriate to include a "not copyrighted"
notice in ones .sig??
The best is the way RAND Corporation did with their editor code:
Copyright 1984 Foobar Corp. Copyright abandoned.
That is the techinal meaning of "public domain". The other
meaning is material that does not have a copyright in the first
place such as government documents.
(c) what is "fair use" in this environment. If I
understand the convention properly, if I see something
interesting on rec.water.sports, I specifically CANNOT
forward it to a friend, nor can I repost it to a
different newsgropu ("bbn.bboard", for example). What
*can* we do?
As I said above, you could print a copy on the printer, squirrel
one away for posterity. You could gateway it to another bbs
system as long as 1) the orginator did not prohibit 2). left
authorship and identification alone and 3). did not profit from
it. Otherwise it is commecial use and subject to litigation.
Giving a copy to a friend is a gray area. Making 15 copies for a
class is also in a gray area.
Talk with the Stargate people.
(d) how will this impact the sources/binaries groups? I
have always presumed that anything that comes in with
no notice is "copyright free" and I have had no qualms
about installing it on my system, or sending it to
friends, or modifying it (and maybe even reposting the
"improved" version). All of this seems like it will
become marginally-, if not il-, legal with the
"implicit copyright" in place. --- mabye the moderators
of the binaries/sources groups will/should put a "this
is in the public domain" notice on their shar files as
they distribute them (and of course, they''ll have to
explicitly get that permission from the authors before
they can do so).
Fair use would allow you to install it on your machine. Giving
it to your friends is subject to copyright rules. Placing it in
your product for commercial use -- see a lawyer and get a
release. Giving credit is essential.
(e) what is the implications for archives? does posting to
a newsgroup imply that the poster is giving permission
someone the ability to "republish" their "work" in any
way other than the implicit one (that is, of forwarding
the particular newsgroup in question around usenet)?
Will archive-runners have to make posting-by-posting
requests to take the (now copyrighted) postings and
including them in their "collection"?
An archive server is probably illegal unless the archiver is
given authorization to do so.
By the way, an email message giving authorization is not
acceptable as it can be forged. This was proved in 1965 by a
famous net personality when he turned in a computer listing to
Dr. Earle C Schweppe proving an impossiblty. Brad is in a
touchy situation when he gets a posting with an okay, courts
won't accept that as evidence. But then again courts won't
accept USENET as evidence.
I ain't a lawyer, so I'm sure that the turns and twists of
sorting this all out go WAY beyond the simple, obvious
problems that just immediately came to mind. Anyone
thought about that? Any lawyers in m.l able to give us any
guidance on this? Anyone worried?
Anything a lawyer said would be merely speculation. USENET and
FIDO and .... are unique. No law covers the new technology of
infomation such as this. Part of the r.h.f conroversey is just
what do people think is ethical. Someday Congress and/or the
courts will look at USENET and call it "prevailing community
standards" or some such and perhaps use it as a guidelines. But
until there are court cases it is all speculation.
In closing USENET and copyrights are a mixed bag, a lawyer will
take the case and argue any way you want, cheerfully, there are
no precedents and nothing similar. Ultimately the law will be
decided by a judge who may decide based on such important legal
concepts as how he feels that day and whether he got cuttoff by
someone that morning in troaffic.
--
=Dennis L. Mumaugh
Lisle, IL ...!{att,lll-crg,attunix}!cuuxb!dlm OR dlm@cuuxb.att.commsb@sq.com (Mark Brader) (03/28/89)
This article is in the public domain. If you see two versions of it, sorry, I canceled the first one promptly. > I'm told that the Berne Convention is coming to the US on 1 April. ... > I have been lead to believe that the *major* difference for us in the > US with the Berne Convention is that the default for "public domain" is > reversed. That is, that in the current environment I think it is the > case that if you "publish" something with no copyright, it is in the > public domain, unless and until you make rather spirited efforts at (in > essence) undoing the publishing. By contrast, ALL published items are > implicitly copyrighted by their authors under the Berne Convention. I too am finding this whole business rather confusing. (I don't live in the US, but I do read a great number of Usenet articles from there!) My understanding of expert opinion on the net over the past few years has been as follows: [1] The US has for some years not required copyright notices for the author of something to retain its copyright. [2] If you publish or distribute something without a copyright notice, you may nevertheless be assumed to have no desire to retaining your copyright, and the thing may be treated as if public domain [a technical term meaning "not copyrighted"]. [3] The legal status of posting to the net has not been evaluated in court but it seems more like publishing than anything else. And therefore... [4] Net articles from the US with no copyright notice may be treated as public domain. I believe several people who claim expertise have concurred in the above. On the other hand, the general theme of the articles posted recently about the coming of the Berne Convention in the US have said: [5] Because of signing the Berne convention, the US will now not require copyright notices for the author to retain copyright. I have also seen it noted that: [6] As Canada is a signatory to the Berne Convention, rule [1] applies here in Canada also. You will notice that [1] and [5] are rather similar, and [6] clinches it. This makes me, as I said, rather confused as to what is actually going on here. What I am wondering is that if the Berne Convention's real effect is to reverse rule [2] (and hence [4]). Is this true? Now, I don't think anyone has ever said on the net that rule [2] applies here in Canada also, but I've certainly assumed it does. My intention in posting the things I have posted has always been that they should be public domain, and (for what it's worth, which in court is nothing) I hereby abandon any implicit copyright on any past postings of mine. And if I've violated the copyright of anyone from Canada when they posted material to the net with no copyright notice and I reused it, well, it was unintentional and I apologize, for what *that's* worth. *Expert* commentary, please? Mark Brader "It can be amusing, even if painful, to watch the SoftQuad Inc., Toronto ethnocentrism of those who are convinced their utzoo!sq!msb, msb@sq.com local standards are universal." -- Tom Chapin [Would that be fair use, by the way, if the quoted article was copyrighted (which to the best of my recollection it wasn't)?]
ruel@cup.portal.com (Ruel T Hernandez) (04/03/89)
cosell@bbn.com (Bernie Cosell) asked some questions regarding changes to the
Copyright Act of 1976 by the Berne Convention Implementation Act of 1988
(BCIA).
The BCIA changes have been in effect since March 1, 1989. Note that the
changes pertain to copyright claims occurring on or after March 1, 1989.
There are now three layers of analysis in copyright law for the practicing
copyright attorney. Generally, they are: (1) copyright claims made on or
after March 1, 1989, under the BCIA-amended Copyright Act (note that any
claims will be under the amended Copyright Act and not under the Berne
Convention -- BCIA was written to forestall any self-execution of the Berne
Convention under U.S. law); (2) copyright claims between January 1, 1978,
and March 1, 1989, under the pre-BCIA Copyright Act of 1976; and (3)
copyright claims before January 1, 1978 under the Copyright Act of 1909 --
note there are also different registration requirements for works published
before January 1, 1978 (fortunately, most people here on USENET won't have
to worry about things that far back).
Fair use operates in the same fashion as always despite the BCIA amendments.
A few short comments: With regard to the materials distributed here on the
USENET, i.e., posted articles and software in form binaries and source, one
must address both Section 107 fair use and Section 117 computer software
fair use. As for modified or improved copies of programs, those are known
as derivatives and only the copyright owner can distribute them unless he
says otherwise. If one alters his copies, he should not distribute them.
Keep in mind that the exclusive rights of the copyright owner in his work
are those of reproduction, distribution, derivation, public performance, and
public display of the work. With regard to online distributed materials, a
copyright owner may certainly be authorizing free distribution and copying
of his works in their original form with any limitations that he may specify.
A Side Note: One other person from Canada commented on this string of
messages. In Canada, as well as in countries such as Great Britain and
other European countries, there is the concept of "fair dealing" which
_seems_ to be a little more liberal than American fair use. Also, with
regard to Canada, prior to BCIA, American authors/publishers got Berne
protection via the "back door," i.e., publishing simultaneously in the U.S.
and in a Berne country such as Canada. Note that this "back door" approach
has not always been successful, particularly where specific requirements of
a country may apply, such as in the unfortunate case where the copyright on
the movie "The Sting" was not recognized in Thailand (Thailand refused to
recognize the Canadian publication of the film since there was a failure to
comply with Canadian publication standards).
With regard to changes to the Copyright Act under the BCIA, there really
doesn't appear to be too much to worry about. Perhaps the relevant changes
in copyright law that would concern most people are:
(1) COPYRIGHT NOTICES:
Copyright notices are now VOLUNTARY and no longer mandatory.
However, one is encouraged to include a copyright notice to defeat any
defenses of innocent infringement.
Note that what this change to notice requirements also does is obliterate
the Omission of Notice remedy Section 405 for works publicly distributed
AFTER March 1, 1989. Since notices are now voluntary and no longer
mandatory, one no longer has to worry about leaving out a notice. However,
for works publicly distributed BEFORE the March 1, 1989 effective date of
the BCIA, the omission of a notice does not invalidate a copyright if
(1) the notice was omitted from only a relatively small number of
copies distributed to the public;
(2) registration for the work was made before or within five years of
the publication without notice and there was a reasonable effort to
affix a notice to distributed copies; or
(3) the notice was omitted in violation of a written agreement that
conditioned public distribution on the attachment of a notice to copies
of the work.
In the context of USENET, one may try to argue based on Section 405 that
most of the messages and articles posted to USENET without a notice prior to
March 1, 1989, have fallen into the public domain.
Also note that the Universal Copyright Convention (UCC), another
international copyright treaty which the United States is a party to, still
requires that one provide a copyright notice in those UCC countries that
require certain formalities for copyright. Therefore, one may still want to
provide a copyright notice for maximum protection AND benefits under the
Copyright Act here in the United States and under both the Universal
Copyright Convention and the Berne Convention with regard to foreign
countries.
A Side Note for those sticklers regarding the exact form of a copyright
notice under American law: There are the statutory provisions for Copyright
19xx authorname, Copr. 19xx authorname, "C" in circle followed by date of
first publication and author's name. However, there are the little known
Compendium II guidelines for the Copyright Office which say that "(C)" ("C"
in parenthesises and not in a fully enclosed circle) was an "acceptable
variant" at least for registration purposes (note that one could challenge
the copyright and the notice later in court). There is also the FORRY, INC.
v. NEUNDORFER, INC. case that indicated that a "(C)" (instead of
"Copyright", "Copr." or a C-in-a-fully-enclosed-circle) was good enough to
provide a copyright notice. However, the analysis there must be done on a
case by case basis. To avoid these challenges, one might as well provide a
statutory sufficient notice.
(2) REGISTRATION:
Foreign authors no longer have to register their works with the Copyright
Office in order file a copyright lawsuit in U.S. federal court.
However, American authors still have to register in order to get a ticket to
file a copyright lawsuit in federal court.
Registration is encouraged within three months of publication in order to
take advantage of receiving awards of attorneys fees and the newly DOUBLED
statutory damages.
This dual tier of registration (no registration for foreign authors,
registration for American authors) may seem strange and unfair to some.
However, the Berne Convention does not prohibit the imposition of
formalities on a country's own people. There was a debate as to whether to
eliminate ALL registration requirements completely for both foreign and
domestic authors. Instead, this dual scheme was implemented. As Ken Hill
said in a previous post, perhaps this was just another Federal Attorney
Full-Employment Act. :-) Certainly, as was noted in BCIA legislative
history, the Copyright Office was against eliminating all registration
requirements. One legal commentator, Harry G. Henn in his 1989 SUPPLEMENT
TO COPYRIGHT LAW: A PRACTITIONER'S GUIDE, noted that "American adherence to
the Berne Union makes more likely the abolition of the Copyright Office."
It is doubtful that would ever happen, however, the Copyright Office's
workload may decrease under BCIA with regard to registration of foreign
works.
(3) RECORDATION OF TRANSFERS:
Transferee/holders of a copyright, or of one of the exclusive rights under
copyright, transferred to them, such as in an assignment, no longer have to
be record the transfer with the Copyright Office.
However, it is still of some benefit to record a transfer. Recordation of a
transfer provides actual notice to those who search Copyright Office records
and constructive notice to everyone about the transfer.
(4) DOUBLED STATUTORY DAMAGES:
Infringement $500 - $20,000
Wilful Infringement $100,000
Infringement, but did not know it was $200
The award of statutory damages and attorneys fees is contingent upon
registration within 3 months of publication. Otherwise, one will have to
settle for actual damages and profits which could be less.
(5) MORAL RIGHTS:
Moral Rights was a big issue in the development of the BCIA. Moral Rights
are (1) the right of paternity (right to claim authorship of a work) and (2)
the right of integrity (right to object to any distortion, mutilation,
modification, or derogatory changes to a work that is prejudical to the
author's honor or reputation). There is NO explicit provision for moral
rights in BCIA. However, the Senate did say that current law, such as in
certain provisions of copyright law, unfair competition law, defamation and
libel law, misrepresentation law, and various state statutes, was sufficient
to cover such rights. However, the House said that BCIA does not expand or
reduce any right of the author to assert moral rights in a copyrighted work.
In BCIA, the Congress doesn't provide much guidance on how to handle moral
rights except to say that it's there.
There are other changes, but they deal with licenses for coin-operated
phonorecord players (jukeboxes) and with the Copyright Royalty Tribunal both
of which may not be of much interest to users here.
If one wants to see the changes to Copyright Act made by BCIA, go to a
library and get the volume for Title 17 of the United States Code (that has
the complete Copyright Act) and get the more recent issues of the UNITED
STATE CODE CONGRESSIONAL AND ADMINISTRATIVE NEWS (December 1988, I think)
and look for the Berne Convention Implementation Act of 1988 at 102 STAT.
2853. The legislative history should be found in one of the other
accompanying issues. Note that the legislative history there will tell what
the Senate was doing when it passed its version of the Act although the
final version that was eventually signed by President Reagan was essentially
the House version. Also, if one has access to a law library, look at the
JANUARY 1989 SUPPLEMENT TO NIMMER ON COPYRIGHT (it's also the supplement to
several other of Nimmer's books published by Matthew Bender & Co., Inc.).
In it are the House Report, the Senate Report, the House and Senate Debates,
the Senate Treaty Ratification Debate, the public law itself, and commentary
by Nimmer.
------
Ruel T. Hernandez, Esq. The above is only comment
CompuServe: 71450,3341 GEnie: R.HERNANDEZ and conjecture. If you want
Internet: ruel@cup.portal.com definitive legal advice, see
Copyright 1989 Ruel T. Hernandez an attorney.