A guide to digital copyright laws

By Chris McGinn

Print Story | Email Story
Add to My Digital Landing

Related Articles

• 2009 Holiday Gift Guide: For the Women
• 2009 Holiday Gift Guide: For the Men
• Introducing Twitter Lists
• Building a Website: Website Design 101
• Building a Website: Selecting a Domain Name and Host

It's a brave new digital world out there. You have access to more music, photos and written word then ever before, but what are the rules about what you can use, where and how?

Can you burn a CD with an MP3 you downloaded online? Can you use a cool photo from another blog on your own? What can you do if someone uses your ideas and doesn’t give you credit?

The rules of digital copyright are complicated, and there are exceptions to every rule, but here are some basic guidelines to consider as you make choices about how to use digital content.

What is copyright?

In general, copyright protection is given to the expression of ideas rather than to the idea itself so things like poetry, literature, movies, music, videos or photographs are subject to copyright while just having an idea that is never formally expressed is not.

The protection is intended to prevent the unauthorized duplication or transmission of these works. You do not have to file for copyright protection for the works you create as it is given when something is made, but you can file for a more formal listing of the protection if you are concerned or want to ensure its originality.

A special aspect of copyright is work in the public domain. These are creative works whose copyright protection has expired or that were created by the U.S. government and cannot be copyrighted. When works enter the public domain varies by country and by creation date but many of these are freely available online via sites such as Project Gutenberg.

The Digital Millennium Copyright Act

In 1998, the government enacted the Digital Millennium Copyright Act (DMCA) (PDF) to help define copyright protections for digital technologies such as software and other things guarded by Digital Rights Management measures.

It makes it illegal to circumvent anti-piracy protections on software, music, DVDs and other forms of media. In addition, it provided for very costly penalties for copyright infringers and protections for ISPs (Internet Service Providers) when users may break the law without their knowledge.

While the new law did increase protections for digital formats, it now lags behind ever-changing technologies. 

What is Fair Use?

A key element of copyright law is the concept of fair use.  Fair use helps guide when it is okay to use elements of a copyrighted work in areas like teaching, research, news reporting or commentary.

The key questions to ask yourself before using something digitally related to the fair use concept in the law are:

1. What is the nature of the use? Is it for educational or personal use or is it for profit?
2. What is the nature of the work being copied? Is it something creative or factual information or news reporting?
3. What amount of work are you using? Are you just using a sentence or two, a verse or are you using the entire work?
4. What is the impact of your use on the potential market for the original work? Will your use make the copyright holder lose money?

This last question is often the most important in terms of a court case if the copyright holder were to pursue charges of a violation.

Of course, the safest thing is to always get permission from the copyright owner before using copyrighted material. For a better understanding of copyright, watch this creative lesson from Stanford Law School.

Music

Perhaps one of the most challenging areas for copyright protection is in the music industry. Beginning in the creation of peer-to-peer (P2P) file sharing music sites like Napster, the music industry has been on the offensive, trying to guard its royalties.

Unfortunately for the music industry, it has been a long and, for the most part, losing battle.  According to London's International Federation of the Phonographic Industry, a whopping 95 percent of music downloads are illegal.

What was started with Napster, grew into a multi-headed array of sites that enable users to share music files.

The music industry has tried a variety of tactics including suing individual uploaders such as grandmothers, single moms and college kids who may have intentionally or unintentionally broken the law. At times, the winnings have been substantial but at the cost of public goodwill and endless legal battles.

The Electronic Frontier Foundation offers an alternative way on their site encouraging the industry to find a way to make file sharing legal and for the industry to split the fees.
The site also offers information on various intellectual property legal issues.

For a time, the music industry required music services such as iTunes, Amazon and others to provide music with special encrypting called "digital rights management," which prohibited purchasers from using the files in inappropriate ways.

Now most services have moved away from DRM music, with iTunes leaving it behind as of April 2009.  Some subscription services such as Rhapsody still use it however.

If you want to be sure to stay on the right side of the law, use Jamendo which offers music for download that is under the Creative Commons license (see below) and available for non-commercial use or Jamendo Pro for commercial applications.

The Recording Industry Association of America has created a number of resources to inform children, teens, parents, teachers and other users of copyright laws and how they apply to digital music.

Videos

YouTube and its successors have been an Internet sensation, much to the chagrin of copyright holders to many of the video clips played on the site. YouTube has faced litigation by Viacom for "massive intentional copyright infringement" for some 160,000-plus clips on its service. In March 2008, the court ruled that Viacom could not seek punitive damages, although statuatory damages were still possible.

In an effort to limit copyright infringement, YouTube uses a system called ContentID to help copyright owners keep tabs on their content and determine if they want to block, license or even make money from its use.  YouTube also limits uploads to 10 minutes in length, preventing full-length movies, etc, from being available. For more information on YouTube's limitations, read these community guidelines.

As with other intellectual property issues, you only have the right to post material which has been created by you in whole that uses materials to which you have authorized permission to disseminate. Failure to do so can result in at best your video being removed and at worst, litigation.

Photographs

If you want to use images on your website or blog, the safest route is to use your own images, ones you purchase with the right to use them this way, or those with a "creative commons" license.

Creative Commons is a relatively recent option. Creators of images, works of art, or authors can establish a Creative Commons license (cc) which permits them to retain some of the rights to a piece but also allow others to use it without fear of copyright infringement.
One way to find Creative Commons images is to search Flickr using an advanced search where you set the CC license in the criteria. Also if you intend to use the image for business purposes you should also search for those that allow that use.

You can also use images created by the United States government as these are all public domain works.

Another special case is the logo or name of businesses. In general, it is permissible to use a company's logo or name if you are providing commentary or information regarding the business. It is not, however, permitted to use a logo to imply endorsement or approval by the company or individual.

Written Word

In the world of blogging, links are everything and often this involves commenting on or quoting other blogs. In general, blog writers are pleased for you to do this as long as you give them credit and provide a link to their blog, boosting their traffic.

However, not everyone is so pleased to be copied. For example, copying news articles and emailing them rather than sending a link to the article is infringement. Consider the fair use guidelines when deciding what, when and how to use written work by others.

The Electronic Frontier Foundation has a guide to legal issues for bloggers that covers a wide range of topics including intellectual property issues.

Be Cautious

Although it occurs everyday, digital copyright infringement is illegal. Just because many copyright holders don't usually pursue legal action, it doesn’t mean they can't.  As cases are tried and new rules are established, the way will be clearer for everyone. Until then, err on the side of caution.

When in doubt, don't do it.