The Pagan community has recently had another round of commentary on people posting PDFs of books. These discussions often make it clear that a lot of people are confused both about copyright in general, and about how it specifically applies to some common uses in the Pagan community
That makes it time for me to do a series of posts on how copyright works, and some specific applications for the Pagan community and for common things that come up online. This first post explains why copyright is so complicated, and then will describe my background.
(Pssst. Posting complete copies of books or other works that are under copyright is not one of the complicated bits. It is against copyright unless you have permission to do so from the copyright holder. Period. End of statement.)
I expect this will be a series of seven posts (it’s possible I might split one or more if they get very long.) Topics I’ll be covering include:
- Part 1: Why is copyright so complicated? (This post)
- Part 2 : Key concepts and terms
- Part 3 : What is under copyright? And what isn’t?
- Part 4: Fair use: what it is and isn’t.
- Part 5: Examples and common confusions
- Part 6: Common Pagan situations, including some best practices.
- Part 7: What creators of material should know.
Why is copyright so complicated?
Copyright – especially in our current technological age – is exceedingly complicated. It’s no wonder people get really confused about parts of it.
On the other hand, some parts of it are really straightforward. You might not agree with them, but the lines are clear.
This series of posts will help sort out which parts are which, and what you should know about them for common Pagan uses.
Copyright law in the United States, the United Kingdom, Canada, Australia, New Zealand, and some other countries with close legal ties to those places got its start in what is called “common law”
Copyright law in other places – like much of Western Europe – started from a different body of law, called “civil law”.
While there are places these two agree, there are also lots of places they disagree, or put different priorities on different things. The concept of “moral rights” is a common example here. Moral rights are the idea that an artist has some say over how their work is used after it’s made public (i.e. they sell it, put it on display, etc.) Common law mostly doesn’t consider moral rights in its decisions, but civil law countries often do.
Based on case law:
While there are legal statutes that define the laws, most of the actual details of how copyright law works have been decided as parts of specific cases brought before judges. If no one’s brought a suit about that specific combination of things yet, we don’t actually know how judges will rule.
This is why there’s no absolute list of how much it’s okay to share of a written work. What we have are a collection of cases where people have quoted segments, and different court decisions about whether that’s okay or not. There are patterns, but no clear lines or boxes.
Most commonly, in the US, significant cases are decided by the circuit courts of appeals: there are eleven regional circuit courts in the US, plus one for the District of Columbia, and one for federal cases. This also makes things complicated because sometimes you have a case decided in one circuit court of appeal, and a very similar case decided differently in another circuit.
Third, because the details are often sorted out only when there’s a specific case that requires it, it can take a long time for some kinds of issues to be resolved. Someone has to do something that seems to be a violation, the copyright holder has to decide to bring suit, the suit has to work its way through the courts, the court has to make a decision, the decision gets appealed, and so on…
This makes things especially tangled when you’re talking about new technologies, particularly ones that involve copying, sharing, or distributing files in new ways.
Decisions and values:
One challenge in copyright law is that a lot of the pieces involve individual decisions, and reasonable, well-informed people can make different ones, especially about edge cases.
In some places, we’ve decided as a community that judges shouldn’t make particular kinds of judgement – for example, copyright law doesn’t generally consider if something is art, or what the specific artistic values are. At least not anymore. (There was a case right around 1900 about circus posters that established this.)
This makes some sense – judges are highly trained in the law, but not generally nearly so much in art theory, art history, philosophy, cultural theory, or other relevant topics. (And whether something’s art is something a lot of artists, scholars, philosophers, and people who enjoy artistic things can’t agree on either!)
Sometimes judges do have to learn new things, or judges with previous related experience may make different choices than someone without that experience. There are, for example, judges out there who also have experience as computer programmers: they’re going to bring different things to their decision-making about copyright cases involving computer code than someone who doesn’t have significant experience as a programmer.
One of the reasons that copyright is so complicated is that some of it is international law. Various countries have entered into a series of treaties to agree on what’s covered by copyright, and what countries need to do about that. The actual agreements involved are really complex, and there are some distinctly different approaches in different countries.
I’ll talk about a couple of them as we go on, but the one many people have heard of is the Berne Convention.
Like a lot of international law (or any kind of law where there are people with rather different ideas about what’s most important) a lot of copyright treaties are a series of compromises, and sorting out those compromises gets very confusing.
Along with the fundamental differences in the laws I mentioned above (in the section on complicated history), different countries want to reward or discourage different kinds of behaviour. Countries use laws to do this, so obviously coming up with treaties can get complicated, because they’ll have different laws.
Laws get changed:
Some of why copyright is complicated is that the laws get changed. Often this is for good reason – to make things more clear, to bring us into alignment with treaties, to deal with issues that keep coming up.
But it can also be really confusing.
One thing I’ll talk about more in the third post in this series, about what is under copyright, is that it depends when something was created.
Roughly speaking, almost everything before 1923 is in the public domain (no longer under copyright), and everything since 1976, you should assume it is unless you can determine differently.
But what about the fifty years in the middle? In that gap, it depends on a lot of different things – if there was a copyright notice when it was published or put in a fixed form, if it was published, if someone registered the copyright, if someone renewed that registration.
My professor for CopyrightX said that probably at least 80% of the things in this time period are no longer under copyright (because they didn’t do a step that was required under the laws at that time) but in many cases, we can’t tell, so it’s risky to assume something is no longer under copyright. Only a fraction of works were correctly registered, and many of those were not properly renewed.
Here’s the problem. There’s no universal database you can go to look up whether something is under copyright, or who holds the copyright currently if someone does. (I mentioned registration: you’d think that would help, but it helps much less than you’d think it should.)
So, if it’s a work that looks like it should be copyrighted, it’s often safer to treat it as if it were. Especially if you’re talking about books, musical performances, or movies where there’s ongoing commercial interest.
Where I learned what I know
I am not a lawyer. (I am also not your lawyer, and this is not legal advice.) However, I am pretty well informed about copyright.
In various of my library jobs, I’ve been responsible for helping educate teachers, students, and colleagues about it, and about specific applications or situations. I’m aware of a wide range of sites that can be very helpful, some of which I’ll be linking to in these posts.
In spring of 2017, I wanted to deepen my knowledge, so I applied for and took the CopyrightX class offered by Harvard Law. It’s offered as an online course to a limited number of students (about 500) with an application process. We watched the same lectures as Harvard Law students in the equivalent course, answered many of the same questions on the final exam, and covered a lot of the same material. (They covered more case studies and had some additional expectations about the exam. Because, well, they were in law school.)
You can view the videos and other materials for the course yourself, they’re all made available online. The one thing you don’t have access to without applying to, being accepted in, and taking the course, are the sectional discussions (which I found very useful, but the public material also has lots of great helpful info in it.)
I did very well in the class – in the top 20% of the exams – but more importantly, it gave me a really good grounding in how copyright law in the United States (and a bunch of other countries, but we focused on the US) got like it is, the different theories that have been used to develop it, and I got to discuss key cases in depth.
At other times, I’ve also helped design an employer’s process for dealing with DMCA (Digital Millenium Copyright Act) violations, and been one of the people handling them for a large online site.
I’ve taught classes in the Pagan community (both one-shot workshops and ongoing classes). I create transformative works that combine elements of copyrighted works with new takes or new directions for various reasons. I also use sites where transformative works get shared, read fanfic, watch fanvids, etc. All of which is to say, I’m pretty familiar with a wide range of possible situations.
I did a presentation at Paganicon in 2013, just before this came up in the Pagan community in one of the periodic flares, and wrote up many of my notes about copyright at that time on my blog. I’ll be revisiting many of the ideas there in more detail in this series of posts.