7.1 Copyright basics for journalists

Copyright law is a crucial aspect of journalism ethics. It grants creators exclusive rights over their original works, controlling how they're used and distributed. Journalists must understand these basics to respect creators' rights and avoid legal issues in their reporting.

Key concepts include the idea-expression dichotomy, originality requirements, and copyright ownership. Fair use doctrine allows limited use of copyrighted material without permission, while digital copyright issues and international laws add complexity to the field. Ethical considerations, like attribution and plagiarism, are equally important.

Copyright fundamentals

• Copyright law grants exclusive rights to creators of original works, providing them with control over how their works can be used, reproduced, and distributed
• Understanding the basics of copyright is essential for journalists to ensure they are respecting the rights of content creators and avoiding potential legal issues in their reporting

Exclusive rights of copyright holders

Top images from around the web for Exclusive rights of copyright holders

• 

  Week 3: Audio-Slides “The Rights of Copyright Owners” | IP Law 422 001 View original

  Is this image relevant?

• 

  Fair Use Guidelines - Copyright Laws and Guidelines - Library Guides at Garrett-Evangelical ... View original

  Is this image relevant?

• 

  International Fair Use Developments: Is Fair Use Going Global? | Authors Alliance View original

  Is this image relevant?

• 

  Week 3: Audio-Slides “The Rights of Copyright Owners” | IP Law 422 001 View original

  Is this image relevant?

• 

  Fair Use Guidelines - Copyright Laws and Guidelines - Library Guides at Garrett-Evangelical ... View original

  Is this image relevant?

1 of 3

Top images from around the web for Exclusive rights of copyright holders

• 

  Week 3: Audio-Slides “The Rights of Copyright Owners” | IP Law 422 001 View original

  Is this image relevant?

• 

  Fair Use Guidelines - Copyright Laws and Guidelines - Library Guides at Garrett-Evangelical ... View original

  Is this image relevant?

• 

  International Fair Use Developments: Is Fair Use Going Global? | Authors Alliance View original

  Is this image relevant?

• 

  Week 3: Audio-Slides “The Rights of Copyright Owners” | IP Law 422 001 View original

  Is this image relevant?

• 

  Fair Use Guidelines - Copyright Laws and Guidelines - Library Guides at Garrett-Evangelical ... View original

  Is this image relevant?

1 of 3

• Copyright holders have the exclusive right to reproduce, distribute, perform, display, and create derivative works based on their original creations
• These rights allow copyright owners to control how their works are used and to receive compensation for the use of their works by others
• Journalists must obtain permission or a license from copyright holders before using their works, unless the use falls under an exception like fair use

Idea-expression dichotomy

• Copyright law protects the expression of ideas, but not the underlying ideas themselves
• This means that facts, concepts, and ideas are not copyrightable, but the specific way in which they are expressed can be protected
• Journalists are free to report on facts and ideas, but should avoid copying the unique expression of those ideas from other sources without permission

Originality requirement for copyright

• To be eligible for copyright protection, a work must be original, meaning it was independently created by the author and has a minimal degree of creativity
• Works that are purely functional, consist of common elements, or are based on facts may not meet the originality requirement
• Journalists should be aware that not all content they encounter is protected by copyright and should assess the originality of works before seeking permission for use

Copyright registration process

• While copyright protection exists automatically from the moment a work is created and fixed in a tangible form, registering a copyright with the U.S. Copyright Office provides additional benefits
• Copyright registration creates a public record of ownership, allows for statutory damages and attorney's fees in infringement lawsuits, and is required before filing a lawsuit for infringement
• Journalists should consider registering their own original works and should be aware that the lack of a registered copyright does not mean a work is unprotected

Copyright ownership

• Determining who owns the copyright in a work is crucial for journalists seeking permission to use content created by others
• Copyright ownership can be complex, especially in situations involving works made for hire, joint authorship, and transfers of rights

Authorship and ownership distinctions

• The author of a work is generally considered the initial owner of the copyright, but this can vary depending on the circumstances under which the work was created
• In an employer-employee relationship, the employer may be considered the author and owner of works created by employees within the scope of their employment
• Freelance journalists typically retain ownership of their works unless they have explicitly transferred rights to a publisher or other entity through a contract

Works made for hire

• Works made for hire are created by employees within the scope of their employment or commissioned works that fall under specific categories and have a written agreement designating them as works made for hire
• In these cases, the employer or commissioning party is considered the author and owner of the copyright, rather than the individual creator
• Journalists should be aware of their employment status and any contracts they sign to understand who owns the rights to their work

Joint authorship of copyrighted works

• Joint authorship occurs when two or more authors create a work with the intention that their contributions be merged into a single, inseparable work
• Joint authors co-own the copyright in the work and have the right to use and license the work independently, subject to accounting to the other co-owners for any profits
• Journalists collaborating with others should have clear agreements in place regarding the ownership and use of jointly created works

Transfer and licensing of copyrights

• Copyright owners can transfer or license their rights to others through written agreements, such as assignments or exclusive licenses
• Non-exclusive licenses can be granted orally or implied through conduct, allowing limited use of a work without transferring ownership
• Journalists should carefully review any contracts or licenses they enter into to ensure they understand the rights they are granting or obtaining

Copyright duration

• The length of copyright protection is an important factor for journalists to consider when using older works or determining when their own works will enter the public domain

Length of copyright protection

• In the United States, works created on or after January 1, 1978, are protected for the life of the author plus 70 years
• For works made for hire and anonymous or pseudonymous works, the copyright lasts for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter
• Works published before 1978 have different copyright terms based on factors such as publication date, registration, and renewal

Public domain and expired copyrights

• Works that are no longer protected by copyright are considered to be in the public domain and can be used freely without permission
• In the United States, works published before 1924 are generally in the public domain, as are works published between 1924 and 1963 that did not have their copyrights renewed
• Journalists can use public domain works without restriction but should still provide attribution to the original creator as a matter of ethical practice

Copyright term extensions

• The length of copyright protection has been extended several times in the United States, most notably through the Copyright Term Extension Act of 1998 (also known as the Sonny Bono Act or Mickey Mouse Protection Act)
• These extensions have been controversial, with arguments that they benefit corporations at the expense of the public interest and hinder the creation of new works that build upon existing content
• Journalists should stay informed about changes to copyright duration and how they may impact the use of older works in their reporting

Fair use doctrine

• The fair use doctrine is a crucial exception to copyright law that allows for the use of copyrighted material without permission in certain circumstances
• Understanding fair use is essential for journalists who wish to incorporate copyrighted content into their reporting for purposes such as criticism, commentary, or news coverage

Four factors of fair use

• Courts consider four factors when determining whether a use of copyrighted material qualifies as fair use:
  1. The purpose and character of the use, including whether it is commercial or non-profit and whether it is transformative
  2. The nature of the copyrighted work, with factual works receiving less protection than creative works
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for or value of the copyrighted work
• Journalists should analyze their use of copyrighted content under these factors to determine if it is likely to be considered fair use

Transformative use vs derivative works

• Transformative use occurs when the copyrighted material is used for a different purpose or in a different context than the original, adding new meaning or expression
• Derivative works, on the other hand, are based upon and recast the original work, such as translations, adaptations, or sequels
• Journalists are more likely to succeed with a fair use defense when their use of copyrighted content is transformative rather than derivative

Fair use in news reporting

• News reporting is one of the specific purposes mentioned in the fair use statute, and courts have recognized the importance of allowing journalists to use copyrighted material to inform the public
• Journalists can claim fair use when using excerpts or clips from copyrighted works to illustrate a news story, provide commentary, or critique the material
• However, journalists should be cautious not to use more of the copyrighted work than is necessary for their reporting and should not use the material in a way that could replace the original work in the market

Parody and criticism exceptions

• Parody and criticism are two additional purposes that are often considered fair use, as they involve using copyrighted material to create new, transformative works that comment on or critique the original
• Journalists can use copyrighted content for the purpose of criticism, such as quoting from a book or article to provide commentary or analysis
• Parody, which involves using elements of a copyrighted work to create a humorous or satirical imitation, can also be protected under fair use if it is transformative and does not replace the original work in the market

Copyright infringement

• Copyright infringement occurs when someone uses a copyrighted work without permission in a way that violates the exclusive rights of the copyright holder
• Journalists must be aware of the elements of infringement claims and the potential defenses available to them to avoid legal liability

Elements of infringement claims

• To prove copyright infringement, a plaintiff must show that:
  1. They own a valid copyright in the work
  2. The defendant copied original elements of the work
  3. The copying was substantial and not authorized by the copyright owner or permitted under an exception like fair use
• Journalists should ensure that their use of copyrighted material does not meet these elements or falls under a recognized exception

Contributory and vicarious liability

• In addition to direct infringement, individuals or entities can be held liable for contributory or vicarious infringement
• Contributory infringement occurs when someone knowingly induces, causes, or materially contributes to the infringing conduct of another
• Vicarious liability arises when someone has the right and ability to control the infringing activity and receives a direct financial benefit from it
• Journalists should be cautious about inducing or facilitating infringement by others, such as by providing links to infringing content or failing to respond to infringement on platforms they control

Defenses to infringement allegations

• Fair use is one of the primary defenses to copyright infringement claims, allowing the use of copyrighted material without permission in certain circumstances
• Other defenses include the first sale doctrine, which allows the resale or lending of lawfully acquired copies of a work, and the statute of limitations, which bars infringement claims after a certain period (typically three years from the infringing act)
• Journalists facing infringement allegations should consult with legal counsel to determine the best defenses available based on the specific facts of their case

Remedies for copyright infringement

• Copyright owners can seek various remedies for infringement, including:
  • Injunctions to stop the infringing activity
  • Actual damages based on the copyright owner's losses or the infringer's profits
  • Statutory damages of up to $150,000 per work for willful infringement
  • Attorney's fees and costs
• Journalists found liable for infringement may face significant financial penalties and damage to their professional reputation, underscoring the importance of understanding and respecting copyright law

Digital copyright issues

• The rise of digital technologies and the internet has created new challenges for copyright law and journalists navigating the online landscape
• Key issues include the Digital Millennium Copyright Act (DMCA), online service provider liability, and the circumvention of technological protection measures

Digital Millennium Copyright Act (DMCA)

• The DMCA is a U.S. law that addresses copyright issues in the digital age, providing safe harbors for online service providers and prohibiting the circumvention of technological measures that control access to copyrighted works
• The law also established a notice and takedown system for copyright owners to request the removal of infringing content from online platforms
• Journalists should be familiar with the DMCA's provisions and how they impact the use and sharing of content online

Notice and takedown procedures

• Under the DMCA, copyright owners can send a notice to an online service provider requesting the removal of infringing content hosted on their platform
• The service provider must promptly remove the content to maintain their safe harbor protection from liability for the infringing activity of their users
• Journalists who receive a DMCA takedown notice for content they have posted online should carefully evaluate the claim and consider filing a counter-notice if they believe the use is non-infringing or falls under fair use

Online service provider safe harbors

• The DMCA provides safe harbors that shield online service providers from liability for copyright infringement by their users if they meet certain conditions
• These safe harbors cover activities such as hosting user-generated content, caching, and providing links or directories to online content
• Journalists who operate websites or online platforms should be aware of the requirements for safe harbor protection and implement policies for responding to infringement notices

Anti-circumvention provisions

• The DMCA prohibits the circumvention of technological measures that control access to copyrighted works, such as encryption or password protection
• It also bans the manufacture and distribution of tools or devices primarily designed for circumvention purposes
• Journalists should be cautious about attempting to bypass technological protection measures, even for the purpose of fair use, as this may violate the DMCA's anti-circumvention provisions

International copyright law

• Copyright law varies between countries, and journalists must navigate these differences when working with content created or used across borders
• International treaties and conventions aim to harmonize copyright protection and provide reciprocal rights for creators

Berne Convention principles

• The Berne Convention is the oldest and most widely adopted international copyright treaty, establishing minimum standards of protection for literary and artistic works
• Key principles include the automatic protection of works without the need for registration, the protection of moral rights (such as the right of attribution), and the rule of the shorter term (where the term of protection is the shorter of the two countries involved)
• Journalists should be aware of the Berne Convention's principles and how they apply to the use of foreign works and the protection of their own works abroad

National treatment of foreign works

• Under the principle of national treatment, countries must provide the same copyright protection to foreign works as they do to works created by their own nationals
• This means that journalists can generally rely on the copyright laws of the country where they are using a work, rather than the laws of the country where the work originated
• However, journalists should still be mindful of differences in copyright duration, exceptions, and moral rights between countries

International copyright treaties

• In addition to the Berne Convention, several other international treaties and agreements address copyright issues, such as:
  • The Universal Copyright Convention (UCC)
  • The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
  • The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)
• These treaties aim to further harmonize copyright protection, address new technologies, and provide reciprocal rights for creators in member countries
• Journalists should stay informed about developments in international copyright law and how they may impact their work across borders

Ethical considerations

• Beyond the legal aspects of copyright, journalists must also consider the ethical implications of using others' works and respecting creators' rights
• Key ethical issues include attribution, plagiarism, and balancing the public interest with the rights of copyright holders

Attribution and plagiarism

• Providing proper attribution is an essential ethical practice for journalists, even when the use of a work may be legally permissible under fair use or other exceptions
• Plagiarism, or the unattributed use of someone else's work, is a serious ethical breach that can damage a journalist's credibility and reputation
• Journalists should always strive to give credit to the original creators of the works they use and avoid passing off others' work as their own

Respecting creators' rights

• Journalists have an ethical obligation to respect the rights of creators and to obtain permission for the use of their works when required by law or industry standards
• This includes seeking licenses for the use of music, images, or video in multimedia projects and obtaining releases from individuals featured in photographs or recordings
• Journalists should also be mindful of the moral rights of creators, such as the right of attribution and the right to the integrity of their works

Balancing public interest with copyright

• In some cases, the public interest in access to information may outweigh the copyright interests of individual creators
• Journalists may need to make difficult ethical decisions when using copyrighted material to report on matters of significant public concern, such as government corruption or public health threats
• In these situations, journalists should carefully balance the public benefit of their reporting with the potential harm to copyright holders and be prepared to defend their use as fair and ethically justified