12.1 Understanding copyright, fair use, and intellectual property

Copyright, fair use, and intellectual property are crucial concepts in media law and ethics. They protect creators' rights while allowing limited use of copyrighted material for specific purposes. Understanding these principles is essential for media professionals to navigate legal and ethical boundaries.

Media writers must grasp the nuances of copyright law, including exclusive rights, duration, and infringement. Fair use allows limited use of copyrighted material without permission, but its application requires careful consideration of factors like purpose, nature, amount used, and market impact.

Copyright and Intellectual Property

Defining Key Concepts

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• Copyright is a form of intellectual property protection that grants the creator of an original work exclusive rights to its use and distribution for a limited time period
• Fair use is a legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders, based on the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market for or value of the copyrighted work
• Intellectual property refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce, which are protected by law through patents, copyrights, and trademarks
• In the context of media writing, copyright protects original works of authorship, including literary, dramatic, musical, and artistic works (books, articles, photographs, videos, music), while fair use allows for limited use of copyrighted material for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research

Applying Copyright to Media

• Copyright protection is automatic as soon as a work is created and fixed in a tangible form, and it grants the copyright owner exclusive rights to reproduce, distribute, perform, display, and create derivative works based on the original
  • Example: As soon as a photographer captures an image and saves it to a memory card, the photograph is protected by copyright
• The duration of copyright protection varies depending on factors such as the date of creation, publication, and the nature of authorship, with most works created after 1978 being protected for the life of the author plus 70 years
• Copyright applies to various forms of media, including books, articles, photographs, videos, music, and digital content, and it protects both published and unpublished works
• Copyright infringement occurs when someone uses a copyrighted work without permission from the copyright owner, except in cases where fair use or other legal exceptions apply
  • Example: Downloading and sharing a copyrighted movie online without permission would constitute copyright infringement
• The Digital Millennium Copyright Act (DMCA) addresses copyright issues specific to digital media, providing safe harbors for online service providers and establishing procedures for dealing with infringing content

Components of Copyright Law

Exclusive Rights and Duration

• Copyright protection grants the copyright owner exclusive rights to reproduce, distribute, perform, display, and create derivative works based on the original
• The duration of copyright protection varies depending on factors such as the date of creation, publication, and the nature of authorship
  • For most works created after 1978, copyright protection lasts for the life of the author plus 70 years
  • For works made for hire or anonymous works, copyright protection lasts for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter
• Once the copyright term expires, the work enters the public domain and can be used freely by anyone without permission

Infringement and Digital Media

• Copyright infringement occurs when someone uses a copyrighted work without permission from the copyright owner, except in cases where fair use or other legal exceptions apply
• Examples of copyright infringement include reproducing, distributing, or creating derivative works based on a copyrighted work without permission
  • Copying and pasting a substantial portion of a copyrighted article into a blog post without permission would likely constitute infringement
  • Creating fan art based on copyrighted characters without permission could also be considered infringement, depending on the extent of the use and other factors
• The Digital Millennium Copyright Act (DMCA) addresses copyright issues specific to digital media
  • The DMCA provides safe harbors for online service providers (YouTube, Facebook) that limit their liability for user-generated content that infringes copyright, provided they follow certain procedures for dealing with infringing content
  • The DMCA also prohibits the circumvention of technological measures that control access to copyrighted works (digital rights management or DRM)

Fair Use Scenarios

Evaluating Fair Use Factors

• The purpose and character of the use should be considered, with transformative uses that add new expression, meaning, or value to the original work being more likely to qualify as fair use than uses that merely reproduce the original
  • Example: A parody of a copyrighted work that comments on or criticizes the original is more likely to be considered fair use than a verbatim copy of the work
• The nature of the copyrighted work is important, as the use of factual, non-fiction works is more likely to be considered fair use than the use of highly creative or unpublished works
  • Example: Quoting a few sentences from a news article in a research paper is more likely to be considered fair use than reproducing a substantial portion of an unpublished novel
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole should be examined, with the use of smaller, less significant portions being more likely to be considered fair use than the use of large or central parts of the work
  • Example: Using a short clip from a movie in a video essay analyzing the director's techniques is more likely to be considered fair use than uploading the entire movie to a video-sharing platform
• The effect of the use upon the potential market for or value of the copyrighted work must be assessed, as uses that have a significant negative impact on the market for the original are less likely to be considered fair use
  • Example: Distributing free copies of a copyrighted textbook to students could significantly impact the market for the original and would be less likely to be considered fair use

Case-by-Case Analysis

• Fair use determinations are made on a case-by-case basis, considering all four factors and balancing the interests of the copyright owner with the public's interest in the free flow of information and ideas
• Examples of fair use in media writing might include:
  • Quoting a portion of a copyrighted work in a book review or critical analysis
  • Using a copyrighted image in a news article reporting on the work or its creator
  • Incorporating short clips of copyrighted music or video in a classroom presentation for educational purposes
• However, the specific facts of each case must be evaluated to determine whether the use qualifies as fair use

Attribution and Permissions

Avoiding Plagiarism

• Proper attribution of sources is essential to avoid plagiarism, which is the act of presenting someone else's work or ideas as one's own without giving credit to the original author
• Attributing sources demonstrates respect for the intellectual property rights of others, acknowledges the contributions of other creators, and provides readers with the information needed to locate and verify the original sources
• Examples of proper attribution include:
  • Citing sources using a standard format (MLA, APA, Chicago) in academic writing
  • Providing links to original sources in online articles or blog posts
  • Crediting authors, photographers, or other creators when using their work in multimedia projects

Obtaining Necessary Permissions

• When using copyrighted material beyond the scope of fair use, it is necessary to obtain permission from the copyright owner to avoid infringement and potential legal consequences
• Obtaining permissions involves identifying and contacting the copyright owner, explaining the intended use of the material, and negotiating any necessary terms, conditions, or licensing fees
• Examples of situations where permission may be required include:
  • Reproducing a copyrighted image on a book cover or in promotional materials
  • Using a substantial portion of a copyrighted text in a commercial publication
  • Incorporating copyrighted music or video in a film or television program
• Failure to properly attribute sources or obtain necessary permissions can result in legal action, monetary damages, and reputational harm, underscoring the importance of understanding and adhering to copyright law and ethical practices in media writing