This paper is about Copyright and Fair Use of information, data, imagery, intellectual property and multimedia content on the Internet. The basic dilemma is not 'what CAN you copy', but 'what MAY you copy'. The Internet is made up of shared resources. It was intentionally designed that way from its inception. The tools by which we access these resources make it a very simple matter to copy, cut, paste and modify almost anything we are allowed to access on the net. View and print the document or frame source of any web page with the click of a button. Siphon those image, sound, script and source code files right out of the browser's cache directory.

Sifting software sorts the source searching and storing selected links, images and data for later viewing and evaluation. There are even software robots that can be tuned to automatically dial into the Web and perform search and information retrieval functions for you on a regularly scheduled basis. So the contents of the Internet are simple to access, simple to retrieve, and simple to steal. In order to protect people from each other, we must create laws. In particular, this paper focuses on Copyright laws, treaties and conventions as applied to works on the Internet in the U.S.A and globally. It's a little more complicated when you are required to get the entire world to agree on these laws, but progress has been made.

A copyright is the exclusive right granted to "authors" under the U.S. Copyright Act to copy, adapt, distribute, publicly perform, and publicly display their works of authorship. A copyright is a form of protection provided to the authors of original works including literary, dramatic, musical, artistic and certain intellectual works. The two main purposes of the copyright are the protection of the author's right to obtain commercial benefit from a work and the protection of the author's right to control how a work is used. The copyright becomes the property of the author or those deriving their rights through the author (works made for hire), immediately at the time that the work is created in fixed form, and applies to both published and unpublished works, regardless of the nationality or domicile of the author.

Copyright protection is afforded through the laws of the United States (title 17, U.S. Code), the WIPO Copyright Treaty, the Uruguay Rounds Agreement Act, the Universal Copyright Convention, the Berne Convention and any applicable Presidential proclamation. (See Origins of Copyright Law for details). Works are generally protected for a term of the author's life plus 50 years. The term of protection for works made for hire or anonymous works is 75 years from the date of publication or 100 years from creation, whichever is shorter. Works prior to January 1, 1978 have generally been afforded the same copyright protections as stated here by virtue of various recent amendments to the Copyright Act (there are a few exceptions).

The U.S. Copyright Office The Library of Congress, has a very complete web site elaborating copyright facts.
U.S. copyright law states very clearly that original works of authorship that are fixed in a tangible form of expression may be copyrighted:

• literary works: novels, nonfiction prose, poetry, newspaper articles and newspapers, magazine articles and magazines, computer software, software documentation and manuals, training manuals, manuals, catalogs, brochures, ads (text), and compilations such as business directories
• musical works and any accompanying words: songs, advertising jingles, and instrumentals
• dramatic works and any accompanying music: plays, operas and skits
• pantomimes and choreographic works: ballets, modern dance, jazz dance, and mime works
• pictorial, graphic and sculptural works: photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art
• motion pictures and other audiovisual works: movies, documentaries, travelogues, training films and videos, television shows, television ads, and interactive multimedia works
• sound recordings: recordings of music, sounds, or words
• architectural works: building designs, whether in the form of architectural plans, drawings, or the constructed building

According the the Library of Congress, you may not copyright:

• Intangible forms of expression (unrecorded speeches, performances, etc.); titles, names, phrases, slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; listings of ingredients or contents; ideas, procedures, methods, systems, processes, concepts, principles, discoveries and works consisting entirely of information that is common property and containing no original authorship may not be copyrighted.
• Works prepared by federal government officers and employees as part of their official duties are not protected by copyright. Consequently, federal statues and regulations are not eligible for copyright. This rule does not apply to works created by state and local government employees.
• Any work that is not originally eligible for copyright and work for which the copyright term has ended is referred to as 'public domain'. Original works may be designated by the author as public domain. On the Internet, we call public domain stuff "freeware", and freeware may not be copyrighted.
• At the current time, you may not copyright hypertext links to anywhere or anything unless you also own the destination link. Nor may you copyright a collection of links since it is deemed a directory to existing information, just as a phonebook may not be copyrighted. However, the way in which the information is organized as a web page and any associated original artwork, graphics and images may be copyrighted. Part of the debate over Article 5 in the 1996 WIPO Treaty is that the definition of the term "database" is so loosely defined that "compilations of data or other material, in any form" (sounds like links on a web page, right?) may be misconstrued as a database.

• A copyright is secured automatically when a work is created and "fixed" in a copy or phonorecord for the first time. "Copies" are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device such as books, film, CD's, audio and visual tapes, but excluding (by statutory definition), motion picture soundtracks.
• Prior to 1978, a U.S. copyright (based upon the Copyright Act of 1909) was generally secured by the act of publication with notice of copyright.
• Publication and registration with the Copyright Office is no longer required, but there are advantages to registration in the event of a copyright infringement or dispute.
• For works first published after February 28, 1989, use of the copyright notice is optional, but still recommended. Prior to March 1, 1989 the use of the copyright notice was mandatory or you could risk the loss of copyright protection. If you do not include a copyright notice, i.e. "Copyright (c) 1997 Kenneth D. King - All Rights Reserved" or "Unpublished work (c) 1997 Kenneth D. King", your copyright may not be supportable in some foreign countries and may fail support in the U.S. under the "innocent infringement" ruling since there is doubt as to whether the work is in public domain. You are now entering the twilight zone... the zone of "fair use" and of "public domain".
• For media used on the Internet, it is very important to include the full copyright notice in order to maximize protection. Include your copyright in all source code and on all visible web pages. Most current font and image editors include a 'copyright' or 'author' block that becomes an 'invisible' part of the file and cannot be removed without damaging the 'encryption' of the file. Include a translucent watermark on scanned images so that they cannot be used as part of a 'cut-and-paste' theft.

Essentially, "fair use" is a limitation on the exclusive rights of copyright. Title 17, chapter 1, section 107 of the U.S. Code states: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors shall include

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of the above factors.

Fair use is now a hotly debated issue in all areas and recent court cases (see Challenges and Pending Changes) as well as recent international treaties (see Origins of Copyright Law - WIPO Copyright Treaty) are seriously testing the fair use clause. The Internet has caused international organizations and the U.S. Congress and President to make decisions that will have lasting repercussions on ALL copyright laws.
Many colleges and universities are taking steps to clarify the status of web pages and copyrights.

The general rule is that if you didn't create it or get permission to copy it (whatever "it" may be), then you may not use it in any manner except as an educational tool, and even then there are restrictions and rules of use. More specifically,

• If you make a copy of any original work that meets the copyright eligibility rules, and you do so without the copyright owner's permission or fail to meet the fair use criteria, then you have committed a copyright infringement.
• If you purchase an original work, you must reach a clear agreement with the owner if you wish the copyright to be transferred as part of the purchase, otherwise any copies you make of the purchased item will be considered a copyright infringement.
• Look for and read license agreements before you purchase software products. If you intend to use the software for creating original works, make sure you do NOT use graphics, custom fonts and other multimedia contents that came with the product as part of your completed work unless license is specifically granted. You cannot infringe upon a copyright by using a copyrighted tool, product or work to create a new work, but you can infringe upon a copyright if you substantially base your work upon a copyrighted work. In that case, you would be creating a derivative work.
• You may not take any portion of any copyrighted recording (sound bites or sound clips) without the owner's permission. For music, you may need the permission of the composer, lyricist, performer(s) and recording agency unless these copyrights have been purchased by a single entity under a "master use license" or the "works made for hire" provision.
• You cannot exempt yourself from copyright infringement just by including a footnote stating that the copied work belongs to an identified individual. If that individual has not granted permission for you to copy their work and it fails the "fair use" test, then you are in violation. Even if it is a valid "fair use", it is a good practice to give the original author credit either in a footnote or a bibliography.
• If someone copies from a work of yours in which you have a copyright infringement, you are liable for not only your copyright infringement, but also for all other indirect infringements resulting from your infringement.
• There are an increasing number of lawsuits involving ownership of web pages and web page content. The majority of the suits involve employer/employee relationships and the courts most often decide in favor of the employer. Work created while as an employee or using an employer's tools and equipment is usually considered as "work made for hire". If you wish to use someone else's equipment to create an original work, make sure that you agree as to who owns what you create. It is possible to have joint, group or common copyright ownership.
• Special exemptions to the copyright infringement laws have been granted to libraries so that electronic copies may be made for archiving or transfer between locations. At the same time, though, most public libraries are required to prominently display a specific copyright warning to notify patrons that copying materials other than for specific uses (listed) is in violation of copyright law.

• Japan is currently the only country that has started a central "rights information clearing house" for multimedia content. The clearing-house is run by the Institute for Intellectual Property and Agency for Cultural Affairs.
• Copyright Clearance Center, Inc. - This non-profit organization helps you keep in compliance with the copyright laws through its collective licensing programs. Once you become a member, you have legitimate access to over 1.75 million registered titles from over 9,200 publishers without having to contact the individual authors for permissions.
• Using "stock" images rather than clipart or "snagged" photographs
• ASCAP (American Society of Composers, Authors and Publishers)
• AFTRA (American Federation of Television and Radio Artists)
• BMI (Broadcast Music Inc.) Grants public performance licenses for music compositions.
• Send a letter to the copyright holder. Include your return address, telephone number, fax number, e-mail address, etc. and date at the top of the letter (common sense). Try to contact the person(s) first in order to authenticate that they are the copyright holder and that the mailing address is correct. State who you are, who you are affiliated with, what portion of the copyrighted material you wish to use and why. Sign the letter and include a 'permission granted' section at the bottom for the copyright holder to sign. Send two copies and ask that one signed copy be returned to you. If you don't receive permission, don't push your luck and use the material anyway. Currently, copyright infringement is a civil offense. If there is a judgement of "willful" infringement and the losses attributed to the infringement exceed $2,500.00, the case becomes a criminal offense.

• The Constitution of the United States: Article I, Section 8, Clause 8... The Congress shall have the power... to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
• The Berne Convention for the Protection of Literary and Artistic Works (1886). The original principles of the 1886 convention have been revised eight times. As of November 15, 1996, there are 119 member states participating in this international treaty to protect copyright and neighboring rights. It is interesting that most all treaties, conventions and laws involving copyright protection state that the Berne Convention principles must also be followed. In summary, the three basic principles are:
• all works will be granted the same unconditional protection of copyright throughout the member states as if the work had originated in that state.
• the minimum exclusive rights of authorship shall apply to every production in the literary, scientific and artistic domain and shall include the right to translate, the right to make adaptations and arrangements of the work, the right to perform the work in public, the right to recite the work in public, the right to communicate to the public the performance of such works, the right to broadcast, the right to make reproduction, the right to use the work as a basis for an audiovisual work and the moral right to claim authorship of the work and object to any mutilation or deformation or modification that would be prejudicial to the author's honor or reputation.
• the right of developing countries under certain conditions, to depart from these minimum standards with regard to the right of translation and the right of reproduction.
• The Copyright Act of 1909; modified and enacted July 30, 1947 as part of the United States Code, Title 17 and revised in its entirety in 1976.
• The Universal Copyright Convention as revised at Paris - July 24, 1971. These twenty-one articles are essentially very verbose and fluffed-up versions of the original three principles specified in the Berne Convention. The UCC later became adopted as the Paris revision of the Berne Convention, which was again revised in 1979 and reworked in 1996 as the basis for the WIPO Copyright Treaty.
• Uruguay Round Agreements Act (URAA) - December 8, 1994. The URAA impacts the General Agreement on Tariffs and Trade (GATT), which includes an agreement on the Trade-Related Aspects of Intellectual Property (TRIPS) and amends the U.S. Copyright Law, Title 17, sections 104A, 109(b), adds a new Chapter 11 to title 17 and a new section 2319a to title 18. In summary, the changes restored international copyrights to various "improper" or "incomplete" copyright works prior to 1978 (this was before the U.S. became a member of the Berne Convention treaty), modified the computer program rental provisions and added new civil and criminal remedies for "bootlegged" recordings of live musical performances and music videos.
• World Intellectual Property Organization (WIPO) Copyright Treaty - December 20, 1996

• Evidence, the Legal Profession, and Copyright
• The WIPO Copyright Treaty was adopted by the diplomatic Conference on December 20,1996 and will remain open for signature until December 31, 1997. This treaty adopts the revised 1971 Berne Convention articles as its basis and centers its current revisions squarely on computer software, computer databases and "electronic rights management". There are many prominent businesses opposed to the increased exposure to potential infringement, especially Article 5 on Compilations of Data (Databases), which states, "Compilations of data or other materials, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation". Many large U.S. businesses are in opposition to this treaty. WIPO issued a press release on March 5, 1997 with a list of seven new e-mail addresses directly into their new server, so that concerned responses could easily be handled.
• The Supreme Court addresses "photocopying" and copyright issues
• U.S. Court of Appeals for the Sixth Circuit, November 8, 1996. Princeton University Press vs. Michigan Document Services (MDS). On appeal from the U.S. District Court for Eastern District of Michigan. A copyright infringement case where MDS, a commercial copyshop, reproduced substantial segments of scholarship, bound the copies into "coursepacks" and sold them to students for use in fulfilling reading assignments given by professors at the University of Michigan. The District Court found for "willful" infringement by MDS since they sold the copyrighted material to the students for profit. The U.S. Court of Appeals, agreed that there was copyright infringement and that this case did not constitute "fair use", however, they vacated the damages awarded Princeton University Press stating that the lower court erred on the willfulness judgement. (Note: the original suit was brought to court in 1992).
• Supreme Court of the United States, October 1996 term. Princeton University Press vs. Michigan Document Services (MDS). Petition for Writ of Certiorari to the U.S. Court of Appeals for the Sixth Circuit. MDS is petitioning the U.S. Supreme Court to review the basis of the decision of the appellate court on the grounds that the Sixth Circuit Court applied commercial presumptions that virtually eliminate educational fair use.
• W3C Intellectual Property Rights Overview. Current issues being actively debated are:

  Protecting copyrighted material on the Internet (encryption techniques)

  Contributory Copyright Infringement; do ISP's have an indirect liability?

  Domain name registrations and International Trademark/Copyright infringements.

  Font Protection - Are fonts Copyrightable?

  Caching on the Internet - Are the browsers contributing to copyright Infringement by granting easy access to source code and cached files? Are offline browsers infringing by allowing access to local cached data; avoiding per-use charges?

NOTE: This page was designed and developed by me (Ken King) in order to satisfy part of the course requirements for the CAPP386 Advanced Internet course at the University of Maryland University College. The Internet was used as the exclusive source for all of the factual content within this web page. Many additional Internet sites were visted in order to learn what was considered to be a proper design style that would suit the many various hardware and browser characteristics. This page will soon be incorporated into a larger page with thousands of links to research and development sites helpful in learning and developing a useful web presence on the Internet.