Copyright for Pagans: What creators should know

This is the last part of my series on copyright for Pagans (at least for the moment.) This piece focuses on what you should know as a creator of copyrighted material (which you almost certainly are.)

Copyright for Pagans: What creators should know

You create copyrighted material all the time

… but that doesn’t mean you have to treat all the material the same.

You create copyrighted material every time you send an email (or write a text or a tweet or a Facebook update). You create copyrighted material if you post videos of yourself (or your kids) on YouTube. And if you’re a writer, or artist, or musician (creating original works), you’re creating copyrighted material there, too.

It’s good to sit down periodically and think about what you’re creating, and how you want to handle that. Every 6 or 12 months is a good range, or if something major changes in your life.

Questions to ask yourself:

1) Where am I creating materials?

Do I have a new blog or project or place I hang out and interact? It’s good to do a quick inventory of where you’re currently creating content – it makes it a lot easier to double check policies, think about long-term considerations, and make plans.

For example, you might decide you want to keep a copy of your own content. A regular review can help point out the sites that make it harder to do that. Maybe the kinds of content you’re creating have changed, and you want to keep copies now, but didn’t care as much last year.

2) Do I need to review policies on any sites?

Basically any online site that allows you to talk to other people probably has a clause in their terms of service that talks about allowing them to publish what you share for purposes of use on the site. If they didn’t include this permission, they couldn’t share your stuff with other people. That’s normal and reasonable. But watch out for sites that change their policies, or that try to restrict how you can use your content on other sites.

3) Do I want to give blanket permission in some cases?

Some people do Creative Commons licenses (that give blanket permission to share materials in certain circumstances, like not-for-profit uses, or with attribution) for all their content. Some people do it only for some. Other sites, like Unsplash, collect materials that can be shared and used freely.

4) Do my own spaces have clear policies and contact info?

Do spaces I control (like a personal site, business site, blog, etc.) have copyright statements and information? Is there a way for people to reach me if they have questions about my content?

You don’t need a copyright statement for things to be under copyright, but it’s definitely helpful in reminding people what your policies and preferences are. Because a lot of what I write depends on other material on my blogs or sites, I don’t do Creative Commons, but am generally glad to give permission on request.

5) Where am I getting materials that I use?

Are they coming from appropriate sources that have given permission?

Sharing on social media gets really complicated – but we can decide for ourselves what we’re okay sharing and using. I use photos from Unsplash (which can be modified or shared, and don’t require credit) for my blog, but give credit when feasible. I try to share materials from a creator’s own site or social media accounts whenever possible. I look for credits on art and other creative works, and make sure to share those.

You may make different choices, for a variety of reasons, but it’s good to review what you’re doing, how you feel about that, and whether you want to change anything.

6) Do I have a will that mentions intellectual property?

You create intellectual property, so it’s good to mention that in your will. (I need to do one for my current state: it’s in my to-do list for this month). If you have content online or offline, think about designating someone who can make decisions about that after you die, or whether you want to make a decision about releasing it to the public domain. (Or some of both!)

I have multiple websites, plus a lot of comments on a couple of forums, some of them lengthy works of information in their own right. Designating someone who can make decisions about it is a smart move.

Don’t believe me? Here’s Neil Gaiman explaining why this is so important (and not just for the brilliant writers out there. If you’ve ever created anything that’s helped someone else, moved them, meant something to them, then this is a way to make sure that can continue to happen.)

Legalities

Should you register your copyright?

That depends on a lot of factors. Registration can be complex, especially for things like blogs or collections of less formal work, but may be more worthwhile for books.

You don’t need to register to hold copyright – but registration does give you additional options if there are violations of your copyright about what you can sue for.

All of that said, suing for copyright is, in many cases, expensive and frustrating. Benebell Wen, a lawyer who does intellectual property (and who is also an author of works on Tarot and astrology) has a great overview of why copyright infringement is hard to fight. Because issues of jurisdiction, lack of understanding of copyright by many lawyers and judges, and other practical issues, bringing a suit often only makes sense in really significant (precedent setting cases) or other outliers.

Does someone else own your copyright?

If you have signed a contract with a publisher, there’s a decent chance you’ve signed over at least some of the rights you originally held as the creator. This is why it’s really important to have an agent or lawyer familiar with publishing contracts check your contract before you sign it. Publishers (and music producers, and people who make art available through prints, etc.) need permission or to hold the copyright to do some parts of that (making copies, distributing them, etc.) The details can vary a lot between different kinds of works – some things that are completely standard in music contracts would be completely wrong in book publishing, for example.

Contracts vary a lot about exactly which rights, what happens if an item goes out of print, under what circumstances (if any) the creator can get the rights back, and so on. Look for busy, well-run forums for creators of your particular medium for a place to start with advice or what to look for. I’ll look at pulling together some resources, too.

What happens if there’s an infringement?

Think about what you’d like the outcome to be.

Sometimes emailing and asking for a credit link may make more sense than legal options.

(Some people think you have to take action on any copyright infringement or you lose your rights. That’s a myth when it comes to copyright. (It is more complicated for trademark infringement.) You can decide to use a legal process with some infringements, and let others go.)

There are some legal processes that can help.

If your material is posted online, and you want it removed (and the servers are hosted in the US), the Digital Millenium Copyright Act has a specific set of steps for you to follow.

For large sites, there’s usually a form or other structured way you can make a report. For personal sites, you may have to figure out the hosting service and contact them. Benebell Wen includes a link to templates you can use when writing these emails or letters in the post I linked above.

Decide how much time and energy this is worth to you.

Some people find copyright infringement of their work to be a thing where if they know about it, they need to try and make it go away. Other people find that they spend too much time focusing on it, and it makes them miserable.

Figuring out which is the case for you is usually helpful in making long-term plans. If you need to know if things are misused, you might spend more time setting up automatic searches or using tools that help you find infringements and a system for dealing with them (i.e. having a template on your computer ready to go, reading about issues with copyright regularly, maybe a little consultation with a skilled lawyer who deals with intellectual property.)

If knowing makes you miserable, you might prefer to post more material in ways that are harder to copy or have other people use, set up searches in different ways, and make some specific choices about when and how you look for your own material.

A lot of people are somewhere in the middle: knowing that you’ve decided to make a DMCA report (or equivalent) in most cases, but will let things go if it’s more complex than that is a choice a lot of people make. Or that you care more about images than text, or text than images, or whatever’s true for you.

Using other people’s material

If you blog, share items on social media, or do a number of other common things, you may be using other people’s copyrighted material. Here are some general best practices:

Was this piece designed for sharing?

Retweeting a comment on Twitter, yes. Reblogging something that keeps the chain of who posted it and links back to the original? Generally okay on sites where that happens (think Tumblr). Copying and pasting someone else’s writing into your blog wholesale? Probably not.

Is this the original?

Link back to where you found the original and include whatever information about the original there is. If you can’t figure out the original source, seriously reconsider whether to pass it along and how. Links and information about where you found something and why you think it should be part of your work (or you’re sharing it) are great.

Have you checked out permissions?

Some creators are glad to share their material widely (Unsplash, as I mentioned above, is a way to do that. So are Creative Commons licenses) If that doesn’t apply to the thing you’re sharing, consider whether linking to it or referencing it would work just as well.

Is this an entire work?

Don’t repost entire works unless you’re sure it’s okay. That means don’t share entire copies of books, or entire artworks (or things like Tarot deck images, etc.) If it is okay with that artist or creator, a practice of linking to their own site and permissions with a “Shared with permission from…” is a great thing to do.

Is there a way to contact you?

If you’re regularly posting other people’s content, make sure there’s a way for someone to get in touch if something slips through (contact form, comments on your site, whatever works for you.)

A few last words on this series:

I expect I’ll be coming back to copyright sometime in here – if you weren’t clear about it already, it’s a topic I enjoy digging into. Have a question? Please ask (in comments or on my contact form.) I remain a librarian, not a lawyer, but I’d be delighted to see if I can at least point you in the direction of useful resources.

Copyright for Pagans: Examples

There are a number of common confusions about copyright and Pagan uses. Here’s a quick overview. (Want more details about one? Contact me or leave a comment!)

Copyright for Pagans: Common Pagan Situations

Common confusions : libraries and used book stores

Some people wonder why libraries and used books are okay under copyright, when sharing copies of ebooks or other electronic files isn’t.

The short answer is that there’s something called the “first sale doctrine” that covers physical objects, but not digital ones.

One of the reasons for the distinction is that first sale grants some rights to redistribute a copyrighted work, but not to reproduce it (and in our current technology, a copy of a digital file involves a reproduction, even if you later delete the original from your computer.) Libraries and used book stores are working with the same object (either lending it, or selling it) and there is no residual copy left while the material is being loaned or once it leaves the original owner’s hands.

Some parts of the first sale doctrine have gotten attention at the Supreme Court in recent years relating to geographical limits for first sales. These might be of interest if you’re curious about some of the ways copyright can affect trade

(Other confusions about ebook and digital production costs, and about whether making illegal copies hurts people are better left for other posts. They have their own complexities.)

Complicated world : transformative works

Another way things get complicated is the idea of transformative works. This has been a growing area for discussion.

Transformative works take a copyrighted work and adapt it. Parodies are one example, and they’ve been a specific discussion in copyright law and copyright cases for a long time. These days, we also have things like fanfiction and fanvids, memes, mashups, and related concepts to play with.

If you’ve been around the speculative fiction or fannish community for a while, you’ve probably seen lots of examples of this in one form or another: it’s a way of playing with ideas or concepts, without having to create everything from scratch – or of using widely known material to explore new ideas

In a Pagan setting

Different kinds of actions have different implications when it comes to copyright. It’s hard to tell for certain unless we’re looking at specific cases, but here are some common actions in the Pagan community that are probably violations, some that depend a lot on the specifics, and some that are permitted uses.

Quite possibly a violation

Republishing of work without permission without any additional commentary/material. (Permission might include a Creative Commons license.) This would include sharing an entire copy of a work online.

Quoting large portions of a work, even for purposes like review. This would include the core of the work, extensive portions of the work, etc. Generally a few sentences here or there from a work of non-fiction is considered acceptable, especially if it is clearly not the core of the work.

Posting an image to your social media site if you do not know the original source/creator and have permission (either directly or via something like a Creative Commons license.) Some artists are fine if credit is given, others don’t want their work shared like this at all.

Gray areas: depends on the specifics:

Pieces used in ritual (especially public ones) such as chants, invocations, ritual dramas, full rituals from print sources.

These might be covered by implied license – the idea that people shared them in the first place because they wanted them to be shared in the larger community. In these cases, it’s still best to know where they came from, and share the creator’s name/etc.

Spells
Recipes are a complicated situation in copyright law – a list of facts, steps, etc. is generally not copyrightable, but something like a poetry verse in a spell generally falls under copyright.

Spells usually have some components like recipes, and some components (chants, text, descriptive language about what to do or what to focus on while doing the spell) that would be covered by copyright.

Sharing materials in a closed setting like a coven or small group meeting, taking steps to make sure sure they are not shared in openly available sources online.

This falls under some of the educational provisions, which get complicated. In general, if you want to share things year after year, you want to get permission.

Permitted uses:

Putting material in a Book of Shadows (or other personal religious compilation) that is not shared with others (whether in person, through print copies, or online). Including your sources is always a good idea.

Sending yourself an article in email from an online database or website, for your own reference and study. (A copy for yourself is fine. Sharing that copy could be a problem. It’d depend on the source.)

Passing down material through oral tradition. One person talking to another is not a fixed or tangible form.

Casual discussion, review, or comment on works without extended quotations.
“I liked this book because of these things” is just fine. So is “I didn’t like this book.” It’s the quotations that are the copyright issue. Brief quotations in the places where the specific wording matters are generally fine, but extended quotations where you could have summarised or paraphrased can be a problem.

Citing the source for an idea, even if the expression of the idea is new.

For example: you like someone’s approach to the myth of Persephone, but rewrite it entirely in your own words, it is great to rework it, but give credit for the idea. Storytellers and comedians have community customs about how you do this and when it’s important

Linking to a source or document online. Linking does not affect the original, and is not a copyright issue. Note, however, that some sources for Pagan materials online are themselves copyright violations. If you care about this issue, checking out the sources you’re linking to is a great habit to get into.

Using public domain images (i.e. from historical grimoires) to illustrate grimoires, journals, etc. Public domain images are no longer under copyright or never were, and they’re fine to use like this. In general, anything created before 1923 is quite possibly public domain: there are exceptions, but they’re pretty rare.

Some other examples

Ritual planning. 

“Beltane celebrates the coming summer and the love of the God and Goddess” is a general idea.

A discussion of planning a ritual with that idea isn’t under copyright (because it’s not a fixed form). But the actual ritual script, a video of the ritual, or an audio recording of the discussion would all be under copyright law, because they’d be a fixed form.

Creating spiritual images

An artist makes a picture, using a combination of a photograph they took and adding some effects in an image editor. They post it to their social media site. Even though it doesn’t say Copyright Artist Name 2013, it’s still a copyrighted image.

Sharing a ritual text

A Pagan group comes up with a ritual to celebrate the winter solstice. They share it on their website. While they’ve given permission for it to be used by members of the group, they do not give permission for others to copy it to their own sites (distribution or display), only to use it for their own rituals privately.

Photographs of stars and galaxies

Some things are automatically in the public domain. In the US, this includes things created by government or government agencies. For example, all the Astronomy Photos of the Day from NASA (but not necessarily other sources in the APOD site) are public domain because NASA is a government agency.

Coming next

Part 6 of this series will talk more about some common Pagan situations, including some best practices for avoiding copyright issues.

Copyright for Pagans : Fair use

Fair use is a concept in copyright law that is about balancing the rights of the copyright holder with discussion (and exploration of) copyrighted works.

Fair use is what allows us to write book reviews or movie reviews, quote a short bit of a text in an essay, or reference a copyrighted work as part of a lawsuit or other thing requiring documentation.

It’s also what allows (at least some space) for parody songs, filk, fanfiction, fanvids, fan drawings, mashup images, cosplay, and much more.

Fair use is a weird thing. It isn’t set out in detail in law – instead, it is a possible defense if someone sues you for copyright infringement. A court or judge has to decide if your specific case is fair use or not. Unless and until that happens, you don’t know for sure.

This makes it very hard to make suggestions, though there are some educational guidelines (more on that in a minute) and a lot of sites have set limits on what they consider okay for the uses they see.

Courts look at four factors when making their rulings about fair use, but different courts have made very different decisions about similar amounts of material, or how material was used.

This is good place for a reminder that getting permission from the copyright holder is often a great way to avoid this whole question. (Either by getting direct permission, or by using materials that have been licensed for general use through blanket permissions: see the section on Creative Commons below.)

Factors

The four factors courts look at are:

  • How transformative the use is
  • The nature of the copyrighted work
  • The amount and substance used
  • The effect of use on the potential market

People have written books about all of these, so I’m touching on it briefly here, and if you want to dig into it further, the Stanford site mentioned below is a great starting place for a lot more detail aimed at non-lawyers.

Transformative

Have you used the copyrighted work to do something new and interesting? That might favour a transformative use.

Some things courts look for are if you’ve added new meaning by using the work and adding additional material or context. Maybe you’ve used it to make connections between different things.

Fanvids are a great example here: sometimes the song someone chooses and the video clips someone chooses bring out new connections in the existing material, or highlight something that might be lost otherwise.

(Need an example? Parachute by Thingswithwings is a Leverage fanvid that highlights the relationship between three of the show’s characters. And this discussion of the making of a vid for We Didn’t Start The Fire (the Billy Joel) illustrating 50 years of (Western media) fandom by Scribe and Fiercynn talks about some of the creative choices that go into this kind of transformative work, and could not exist without the source material.)

Nature of the work

In general, fiction and poetry (or creative work in general) gets more protection than non-fiction.

This is because sharing of information or information is seen as a key good thing in society, and so there’s encouragement in the law to do it within reason.

(However, sharing the information doesn’t necessarily mean sharing exactly how someone else said it: often it is better from a copyright point of view to give your own paraphrase and tell people where to find the original rather than copy an extended passage.

Copying directly is usually best saved for when you need to discuss specific wording, or are doing a detailed review or analysis where you look at a segment, then discuss it in detail, and then do another section.)

Unpublished works also generally get more protection than published ones. (Because the creator has the right to control how the work is shared in the first place.)

Amount and substance

Basically, the more you use, the more likely it’s going to be considered a copyright violation. Copying the entire thing, usually a problem.

This is why a lot of spaces set a limit like saying you can quote a certain number of sentences or words: it helps give some guidance about what ‘too much’ might be.

It’s not just about the number of pages or words or percent of an image or song, though – it’s also about how core that piece is to the work you’re copying. This is something it’s very hard to evaluate, but it’s a factor the courts consider.

However, parody is a little different here: if the whole work you produce is a parody, you probably have more license in copying memorable bits from the thing you’re using. The relationship to the original work is a large part of what makes the parody recognisable and effective.

Effect on the potential market

A lot of people try to say that their use won’t affect the market. That isn’t something that the user of copyrighted material gets to determine, though. You don’t know all the parts of the potential market like the original creator or copyright holder does.

Basically, though, if you affect the copyright holder’s ability to make money from their work (by providing copies for free, by using their work to create an effective alternative that people buy instead of the original) then you may find yourself having problems with copyright.


Providing citations and acknowledgement

A lot of people think that if you say where the original was from, that will keep you out of trouble.

This is where we come back to the difference between copyright and plagiarism I talked about in part 1. Telling people about the original is a good thing! But it’s not enough to stop a copyright violation if there is one.

Getting permission from the copyright holder, or using material which the copyright holder has agreed to share is a different situation. In that case, credit may still be required as part of the permission or license.

Creative Commons licensing is a method creators can use to give blanket permission for some kinds of uses, and some of the licenses require crediting the original in a specific way.

Educational uses

There are some very general guidelines for educational uses, which means things that look like a structured class This is usually material that is available to a limited number of people (not posted for the entire Internet to access), for the duration of a series of classes (not forever).

Ongoing Pagan classes like seeker, dedicant, or pre-initiate classes can fit into this category, but posting something in public spaces online or using it for a one-time workshop probably would not qualify.

The Stanford site in the resources has an entire section on academic and educational uses that may be of interest.

Resources

Stanford has an excellent and widely referenced site on Fair Use. (However, don’t trust anything you see in the comments without checking it in well-informed and reliable source: a lot of the comments there are just wrong.)

In particular, you might find the summaries of major fair use cases interesting, and they do regular updates on major cases that relate to copyright and fair use.

If you’d like detailed legal explanations, the lectures from class 9 of the CopyX class give an excellent historical and current overview of fair use (and how it got like this) with a lot of examples.

Next

I’ll be digging into more specific examples (and some common confusions) in part 5.

Copyright for Pagans: What is under copyright?

Welcome back to my series of posts on copyright. This time, we’re going to tackle the question of what is under copyright and what isn’t, with some examples of complicated cases. Here are the parts in this series.

Image text reads: Copyright for Pagans: what is under copyright? (slate background, large green chalk copyright symbol in middle)

Works, not facts or ideas

The first thing to understand is that copyright protects many different kinds of works – books, novels, short stories, theatre, music, poetry, songs, computer software, architecture, among others.

Copyright doesn’t protect facts, ideas, systems, or what are called ‘methods of operation’. However, copyright can protect how those things are expressed.

A common example here is a recipe – copyright doesn’t protect the list of ingredients or the really basic description of how to combine them (that’d be the method of operation). But it would protect a description that went beyond basic instructions, or stories or commentary with the recipe.

Original work

Copyright covers original works in a fixed form.

Original means two things.

1) That it is an independent creation (not a copy of anything else)

2) That there is a modest amount of creativity.

A lot of copyright law is about defining these things.

Without getting bogged down in details at this point, one of the things that is very clear in the law is that you only need a very modest amount of creativity or originality. For example, if you were trying to copy something, and your hand slipped, it could count as an original work.

(A quote from a case in 1951, from Judge Frank, goes “A copyist’s bad eyesight or defective musculature, or a shock caused by a clap of thunder, may yield sufficiently distinguishable variations. Having hit upon such a variation unintentionally, the ‘author’ may adopt it as his and copyright it.”)

One intriguing thing about copyright is that it doesn’t have to be new. (Trademark and patent law care about whether something is new. Copyright doesn’t.)

It’s pretty common for people to have similar sorts of ideas about the same subject. For example, within the Pagan community, two people might independently strike on very similar wording for a chant for a particular ritual or deity focus. In these situations, a copyright case would look at whether they had any knowledge of the other work.

Fixed form

The fixed form part of the definition is a bit easier to explain. Basically, as soon as you have committed the work to a fixed form, it qualifies for copyright if it’s not excluded for other reasons.

This can include:

  • Saving something as a computer file.
  • Taking a photograph.
  • Painting or drawing artwork on paper (or another medium)
  • Writing down music
  • Notating the choreography of a dance or routine.
  • Recording a speech or performance.

What isn’t under copyright?

Some kinds of works can’t be copyrighted. The Copyright Office of the United States has a good summary of Copyright Basics (PDF).

Works that can’t be copyrighted include:

  • Works that aren’t in a fixed form (like a dance that hasn’t been notated or recorded, or an improvised speech that isn’t written or recorded.)
  • Titles, names, short phrases, slogans (these can be covered by trademark in some cases)
  • Listings of ingredients or contents (without other material)
  • Ideas, procedures, methods, systems, processes, principles, discoveries, concepts, etc. (Some of these may be covered by patent law.)
  • Information that is entirely common property with no original content (standard calendars, measurements, height/weight charts, etc.)

In the United States (and a number of other countries), material created by federal or state governments as part of their work is also not under copyright. For example, photographs from NASA used for the Astronomy Photo of the Day are not under copyright, or photos taken by a National Park Service ranger in the course of their job.

This means that laws, congressional actions, government forms, etc. can be shared without worrying about copyright issues.

What is under copyright?

Answering whether a specific work is covered by copyright is a bit harder, because the law has changed several times. There are also different timelines for published works and unpublished ones.

In general, though, anything that was put in a fixed form after 1976 is probably protected by copyright law unless it is specifically exempted.

Material created between 1923 and 1976 might be protected, but it’s often complicated to figure out. During this time, there were a number of more substantial restrictions for how you had to publish materials to get copyright protection, and the copyright had to be renewed.

However, since it’s hard to tell, a best practice is to assume a given work in this time frame is protected unless you can determine it isn’t.

Almost all works before 1923 are now in the public domain (no longer protected by copyright), but there are some occasional odd exceptions.

One of the best known is Peter Pan. J.M. Barrie, the creator, gave the copyright to the Great Ormond Street Hospital, and Parliament passed an act giving it specific extended protection. This article explains the whole long complicated story. There are also sometimes differences between countries: this has affected publications like Sherlock Holmes.

Large gray area

Finally, there’s a large gray area. Copyright law was originally designed to create a balance protecting creators and encouraging innovation.

It’s important to protect creators and make it possible for them to benefit from the time, energy, and materials involved in creating things. Otherwise, many people wouldn’t put that kind of time into it. But it’s also important to allow people to share creations, riff off them (transformative works, we call that now), and use other people’s work to encourage, inspire, or support new innovation and creativity.

For example, what happens when you take a work by a particular artist, and use it in a meme (i.e. as part of a new creation, with added content or context or commentary)?

The case of Pepe the Frog is a very current example, and it’s also a good highlight of some of the issues between US (and UK and Commonwealth countries) approach to copyright law, and continental European approaches to copyright law, which often include more focus on the artist or author’s ‘moral rights’. Here’s an article about Pepe that goes into some of the details.

Copyright law (as I mentioned in early parts) can take a long time to catch up to new technology and new transformative uses that technology allows.

I’ll be digging into more specific examples (and some common confusions) in part 5. Next up, part 4, which will talk about fair use. (Because those examples will make more sense if we talk about fair use first.)

Copyright for Pagans : An introduction

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.)

This series

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:

Copyright for Pagans: Why is copyright so complicated?

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.

History:

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.

Treaties:

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.