Intellectual Property Law
Intellectual Property Law Questions? Ask a Lawyer
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You ask a good question that perplexes many -- including copyright lawyers and scholars! I know you hoped for an easy quick answer, so I hope you don't mind if I give you the right answer (which, unfortunately defies a straight yes or no response!).
Anytime someone makes a copy of someone else's writing, and it is within the copyright protection period (figure anything from the mid-1920s to the present is likely to be copyright protected), it is technically a copyright infringement I assume you are considering a recent article, so it is safe to assume it has a copyright -- and copying it is infringement.
BUT, the copyright law excuses some types of infringement. Most notably, those things that fair under what is known as the "Fair Use Doctrine." It is a good idea to read some of the existing guidance on "fair use" at these links to help you make an informed decision.
Sometimes, people assume fair use is like academic citation -- it is alright to use something if cited properly. But that is where many get themselves in trouble. Fair Use tries to balance the rights of copyright owners with the public need to share information, learning and expression. That's why an important factor in the legal analysis that a court would consider is whether the unapproved use of a written work harmed its marketability. Another consideration is how much is used. This makes a quote used in an academic or public affairs context more likely to be a fair use -- but taking the "heart and soul" of a work would not be (even if the work has important scholarly, historical or political value). The heart and soul can be only a small percentage of the work, if has a big adverse effect on marketability.
This is seen in two famous cases: one in which a magazine published an excerpt from a presidential memoir before the book was released. The magazine lost, even though the president's recollection on his term in office are without a doubt significant historically and politically. http://en.wikipedia.org/wiki/Harper_%26_Row_v._Nation_Enterprises
In another case, involving a pop song, just six notes were enough for XXXXX XXXXXon to lose a big case over his song "My Sweet Lord." It turned out that one riff (the most memorable of the song) has identical to a song that Harrison didn't even remember hearing. But as it was out there, the court found infringement and Harrison paid quite a bit of money!
So where does that leave someone deciding whether to copy and distribute an article? Context is everything. A lawsuit is less likely to be brought or, if brought, won, if a couple of photocopies are given to people at a small gathering. But the more copies and the wider the copies are distributed, the more likely it will create a strong case of infringement that won't be protected by the Fair Use Doctrine.
In the digital age, when copying is just a click or two away, content owners have become more vigilant -- even over-protective. So if the distribution is going to be electronic, it is better to provide a link to the article that people can view on the web rather than to reproduce something without permission. That way, its just a pointer or a reference rather than an appropriation of someone's intellectual property. It is okay to describe why the article is worth reading in a situation like this.
Another factor that courts consider is whether someone even asked a copyright holder for permission. Many authors and publishers will give permission for non-commercial use of limited copies. Even if they don't courts will ask if someone claiming "fair use" even asked. This is considered a legal indication of "good faith" that can be helpful if no permission is granted, but someone using the work has to claim a Fair Use defense in a law suit later.
These are the basics -- but, unfortunately, they don't necessarily provide a clear yes or no, unless the suggestion to ask first (and maybe get lucky with permission from the copyright holder) succeeds. That's the only sure way to avoid legal trouble.
The thing is, of course, about Fair Use, is that it presupposes infringement. And once there's infringement, someone can sue (even if they lose, and fair use is found, it can still be costly to defend one's self).
Please feel free to follow-up in he next text box should you need any clarification.
I wish you all the best with your project.
Any more info when it is printed from the interne? Wondering since article could be forwarded, could I put all the articles together and have providers read them. they would not be going directly to each website.
I replied at 1:02 and haven't had a response. Want to know if info being on the internet and I am collecting articles and placing them back on the internet makes a difference with the copy right. Students would not be going directly to the individual articles website however.
Sorry for the delay. Had a dentist appointment. Just back in the office a few minutes ago and was drafting a response as you posted; here it is:
Sure. Printing from an internet page to paper is considered making a copy, under the copyright act. To deal with this problem, many provide links to the original web page where the article is posted -- without reproducing the article itself.
It is perfectly fine to describe what's in the linked article in one's own words -- but once there is copying of expression without permission, that's where the risk of infringement suits start to grow.
Of course, asking for and getting permission from each copyright owner to reproduce each article is another way to go, as mentioned. The thing is, it is important to have permission in written form, as the Copyright Act requires written permission or agreements -- oral permission is not enough to defend a lawsuit.
Again, I wish you all the best in your project.
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