Welcome back to my series of posts on copyright. As I said in the intro to the last post, it’s a very complicated subject, so today’s post focuses on some specific terms and a few common confusions (we’ll be getting to some more in part 4). Here are the parts in this series.
- Part 1: Why is copyright so complicated?
- Part 2 : Key concepts and terms (This post)
- Part 3 : What is under copyright? And what isn’t?
- Part 4: Examples and common confusions
- Part 5: Fair use: what it is and isn’t.
- Part 6: Common Pagan situations, including some best practices.
- Part 7: What creators of material should know. (We all create material.)
Intellectual property is the broad term used to describe “creations of the mind”. It covers written material, fine arts, music, theatre, performing arts, and also things like inventions, designs, names, concepts, and much more.
These different areas have different laws that apply to them. For example, patent law deals with inventions, and trademark law deals with names, or the copyright law we’ll be focusing on in these posts.
You’ll often see people refer to intellectual property or Intellectual Property Law to describe this group of laws and policies. Intellectual property can also cover things like industrial designs or even identifying a particular food as coming from a specific location.
Pretty much everyone – especially in our modern, Internet-filled world – is producing intellectual property on a regular basis. Most of it doesn’t have a lot of commercial value, but that doesn’t mean it isn’t intellectual property.
Copyright law has to do with the rights someone has, around a particular kind of intellectual property (original works in a fixed form). These rights include who can make a copy (hence the name. This can help with people who get confused and call it copywrite.)
Specifically, for most countries these days, copyright is about who can…
- make copies of a copyrighted work (that includes posting it online)
- distribute copies of a copyrighted work to the public (also includes posting it online)
- make derivative works based on the copyrighted work (use it in other ways, new formats, translations, etc.)
- perform the work in public
- display the work in public.
For some kinds of works, it’s common for the original creator to transfer the copyright to someone else (like a musician might transfer the rights that relate to making and distributing copies to a recording studio.) Some creations, like a movie, are the work of many people, and so part of setting up those projects is figuring out who gets what rights.
Many social media and online community sites have something in their terms of service agreements that note you give them permission to share what you write with others (making and distributing copies) because otherwise people couldn’t read what you wrote or look at the photos you took and shared. Well-designed sites will make it clear they’re only asking for the permissions that allow the site to function, and they aren’t trying to claim copyright over your materials.
It’s possible to give permission for a particular use without transferring the copyright, so a copyright holder can choose to let someone else give a performance or make copies, while still retaining their rights.
Sometimes this process involves a license, which spells out the specific agreement in detail. That way everyone knows what to expect. Some fields, like mainstream publishing and music distribution, have standard sets of license agreements they want to use. Other times, it is entirely up to the people involved and what they agree on. (Also worth noting: licenses are often much more restrictive than the law is.)
My copyright professor said that the vast majority of copyright cases that make it to trial begin with people not being clear about their agreements. This is why you want to work with people who focus on intellectual property law if you’re setting up your own agreements with someone.
Plagiarism is different than copyright. Plagiarism is taking someone else’s material and claiming that you wrote it, created it, or otherwise were responsible for it. It gets talked about a lot in education, because it can come up a lot there.
In short, copyright is about who can make decisions about the work, and plagiarism is about whether you give credit to the person who came up with it. Both can apply to a given situation, or only one.
You can plagiarise something and have it also be a copyright violation.
One example: someone takes an extended passage out of a recently published (under copyright) book written by someone else, and puts it in their own blog or essay or article, making it look like they wrote that section.
Another example: Someone takes a poem (or song lyrics, or a song) that is still under copyright and presents it as if they wrote it.
Another example: Someone finds a piece of art on Tumblr (under copyright) and passes it off as theirs.
You can plagiarise something without it being a copyright violation.
If someone took several paragraphs out of a much older book – say, one written around 1900 – and put that in their essay or article without any indication someone else wrote it, that would still be plagiarism, but because the book is out of copyright, it is not a copyright violation.
You can have a copyright violation without plagiarism.
On the other hand, someone could copy a section from a book, say it came from the book, and if it was a big enough or central enough part of the work they were taking it from, that could still be a copyright violation, even though you identified where it was from. (I say ‘could’ here because there’s several factors involved. We’ll get to that in the post on fair use.)
Citation is how we avoid plagiarism.
Basically, citation is the formal term for “Say where you got this from.” There are lots of different citation formats and details, but those are details. What matters is identifying what material is yours, and what you got from other places and people.
One obvious question that comes up around now is “so when is it okay to share parts of a work with other people?”
If you’re talking about a particular work, you might want to quote a bit so you can say “This is the bit that confuses me” or “This is a really great bit.” People doing research into a topic might want to compare different parts – say, different translations of the same section of text, or different perspectives on the same historical event. And some of us really love parody songs, filk, and other forms of music that take pieces of music and change words or change perspective.
These all fall into an area that is called ‘fair use’ – basically, the idea that there are some uses that are beneficial to the community, or encourage artistic, scientific, or intellectual creativity and growth. Copyright law recognises that these are important, so there are some options for sharing things.
They are complicated sorts of options, though – it’s not as simple as saying “I want to share this, so I can.”
Anyone who tells you that (about copyrighted works) doesn’t understand copyright, so be dubious about other things they say about sharing files, copyright, or related topics.
I’ll have a whole post on fair use coming in part 5.
Idea / expression distinction:
This is an important concept in copyright law. Basically, an idea is not something you can copyright. However, the expression of that idea can be copyrighted – the specific words or images or other aspects you choose.
Think of it like this: the ideas behind a story or myth (the Descent of Inanna, Prometheus bringing fire to humanity, your Great Flood myth of choice) aren’t something you can copyright.
But your particular retelling of it (as soon as it was in a fixed form) would be copyrighted in most cases. The words you chose, the descriptions you used, the order you might put parts of the story in, all of those things create a unique creative work.
The same thing is true of photographs: the idea of an eclipse, for example, isn’t something anyone can copyright. But individual people framing and taking photographs of it, or making artwork that reflects, or writing a poem about it, all of those could potentially be copyrightable works.
Now we’ve gotten those terms and concepts out of the way, Tuesday’s post (part 3) will be about what is under copyright and what isn’t.