By Lesley Ellen Harris1
You may receive an e-mail, regular letter, telephone call or otherwise be notified by a copyright owner or his lawyer that you are infringing his copyright. The claim may relate to an article published in your newsletter or to a photograph on your Web site. Often this notification states that if you do not take steps to remedy the situation, either by paying an “after-the-fact” copyright license fee, or by stopping any and all use of the content, the copyright owner will institute a court action. Do not panic. Prior to evaluating the validity of the claim and analyzing your options, it’s best not to take any radical steps. In other words, take the time to understand the claim and see what makes most sense to your organization in the circumstances.
You’re accusing us of what? What exactly is copyright infringement?
Copyright infringement is when someone uses the copyright-protected work of someone else, (a book, an article, a song, etc.), without permission. If something is protected by copyright, you generally cannot legally make it available to the public in any format, digital or otherwise, without permission of the person or body who holds the copyright.
Determine the Validity of the Claim
If you receive what in legal jargon is called a “demand letter,” your first step is to review the materials specifically subject to the claim of copyright infringement. Are these the actual materials you are using? Are you using these materials in the manner claimed in the demand letter? If so, are they still protected by copyright, or are they perhaps in the public domain? Have you licensed the materials, or obtained an assignment of them?
If you require permission to use these materials, have you in fact obtained that permission? Hopefully, any permission you received is in writing and is part of a database that is easily accessible. Check the permission or license. Is your use covered by it? Have you followed the terms and conditions in the license? Perhaps the person charging you is claiming that, although you only obtained a license to put the material on your Web site for 6 months, you have neglected to remove it after a year. After the six-month period of use has expired, you could be in breach of copyright.
The license may also state that only a certain number of authorized users may have access to the content. For example, an organization may obtain the right to post an article about brand management on its Web site for a week-long program on Online Marketing. The license states that you must have the Web site password-protected and may only issue 50 passwords. If your organization either keeps the article accessible for longer than one week or grants permission to more than 50 users to view the article, you could be violating your license and subject to a claim of either breach of contract or copyright infringement, or both.
Is it Fair Use?
If you are facing a claim of copyright infringement, you may turn to fair use as a defense; check what your national law on fair use say. In the U.S. the fair use provision in Section 107 of the United States Copyright Act is confusing and difficult to apply to particular uses of copyright-protected material. It must be applied on a case-to-case basis and often non-lawyers and non-judges are put in the position of determining what may be considered fair use. Many individuals or librarians in corporations do not want to have this responsibility. And it may be costly to get a legal opinion from your lawyer each time you wish to apply fair use to a particular use of content.
Fair use is primarily for the use of copyright-protected work for commentary, parody, news reporting, research and education. The U.S. Copyright Act lists four factors to help judges determine, and therefore help you determine, when a usage may be “fair use.” These relate to the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit, educational purposes; the nature of the copyright-protected work; the amount and substantiality of the portion used in relation to the copyright work as a whole; and the effect of the use on the potential market for or value of the copyright-protected work. Commercial uses are less likely to be considered fair use.
Examples of uses that may be fair use are: a quotation of excerpts in a review or criticism for purposes of commentary; quotation of short passages in a scholarly or technical work for clarification of the author’s discussions; and reproduction of material for classroom use where the reproduction was unexpected and spontaneous – for example, where an article in the morning’s paper is directly relevant to today’s class topic.
Contact Your Lawyer
Once you have gathered factual information relating to whether the claim against you is valid, discuss the issue with your legal counsel. It is best to deal with a lawyer who has a lot of experience in intellectual property claims. Provide your lawyer with your license agreement (if you have one), and any other documents supporting your position. Discuss your options with your lawyer. Your lawyer may advise you to ignore the claim if it does not seem valid, or to let the other party know this and that you will be continuing to use the content. If your use is not legal, you may wish to stop using the content, or to enter into negotiations with the copyright holder to pay a copyright fee.
1 Lesley Ellen Harris is a copyright lawyer/consultant who works on legal, business and strategic issues in the publishing, content, entertainment, Internet and Information industries. Leslie is the editor of The Copyright & New Media Law Newsletter: For Libraries, Archives & Museums, and the author of several books including Licensing Digital Content, A Practical Guide for Librarians. Ms. Harris often speaks at conferences and teaches online courses on copyright and licensing. See: http://copyrightlaws.com