Thomas J. Hauwiller

Nearly any day of the week you can find news of legal battles involving copyright laws. People now have the means to easily, and some say unknowingly, commit crimes involving intellectual property, a term used to define the intangible works created by people. Lawyers and writers have been teaming up to try to make heads or tails out of copyright and fair use laws to prevent lawsuits that can, and have, resulted in enormous monetary damages awarded to angry plaintiffs. As technical communicators, we must understand copyright law in order to work legally and ethically.

First off, the term copyright, according to Webster's New World Dictionary, is "the exclusive right to the publication, sale, etc. of a literary or artistic work." The Copyright Act of 1976 was designed to prevent people from stealing intellectual property that belongs to the property's creator. As a result, it is strictly illegal to copy something that someone else has created—whatever it may be. Written works may be the first type of intellectual property that comes to mind, but the copyright laws are not exclusive to any particular medium. For instance, words spoken in a seminar, lyrics sung in a song, icons posted to a web page, and computer programs on a disk are all equally protected by copyright laws. Just because a particular type of medium is not mentioned specifically does not mean it can be copied freely—all works are protected.

Attorney Howard Zaharoff, in his article "Questions and answers about copywrite," warns that the Copyright Act is not exclusive to outright duplication of a work. It also includes uses such as the following:

Adaptation—you may not adapt or derive a work from someone else's work. For instance, you may not take a part of someone else's drawing, and make it a figure in your instruction manual. Similarly, you cannot take someone else's ideas and adapt them into your own work.

Distribution—you may not sell the first authorized copy of a work.

Performance—you may not perform the work of someone else. For instance, you may not perform part or all of someone else's presentation at a seminar.

Display—you may not put someone else's work on public display. For instance, you may not show a manufacturer's online tutorial to people in a company-held workshop.

Typically, a copyrighted work bears the copyright symbol (c) or ã along with the year in which it was published. However, the symbol is just a formality. It is just as illegal to copy a material that does not bear the copyright symbol as it is to copy one that prominently displays it. It may make a difference in terms of legal damages awarded to a plaintiff in a civil case, but the absence of a copyright symbol does not imply the lack of copyright.

If you knew only the above information about the Copyright Act, you would never have to worry about the ethical or legal ramifications of stealing someone else's work. Brent Baude, a technical communicator for IBM, says that all of his works are reviewed by a legal team before they are published to ensure that he has not violated copyrights. Baude says he prefers to create his own work rather than use or change someone else's work. That way there can be no problems. Baude is fortunate because he says the scope of his job right now does not have much opportunity for copyright infringement. Nevertheless, he must consider the copyright laws if the scope of his job changes. Furthermore, IBM owns the rights to all the work that he does. He may not, without permission, even keep a copy of his work for his professional portfolio without getting into trouble.

But many of us out there have plenty of opportunity to infringe on copyrights. When we are documenting, for instance, a piece of hardware that runs on someone else's software, or when we are conducting research for a specific training or informative seminar, we must take into consideration the works of other people. It is unreasonable for us to get by on 100 percent of our own original thought. As a result, we need to use something that does not belong to us.

For many of us, the copyright question is a legal consideration, but Robert Weiner who works for the Copyright Clearance Center (CCC), a not-for-profit organization that works as a liaison between copyright holders and users, considers honoring copyright a "matter of respect and integrity." Weiner, in a recent article for Online, cites a story written by Thomas Cahill about a sixth-century Irish monk who hand-copied a Psalter that belonged to his master. When brought before the king on charges that he stole the work, the monk disagreed. He plead that because he worked so hard copying it, the copy ought to be his property. The king delivered the following verdict: "To every cow her calf; to every book its copy." He made the monk return the copy to his master.

We may or may not all follow the ethics of the king, but we are all bound by the provisions of the Copyright Act; therefore we must all make considerations when we want to borrow someone else's property. Now that we know what the Copyright Act stands for in principle, and what the larger scope of it encompasses, we can look to the many ways in which the copyright law provides us a means to attain the right to borrow someone else's property.

Like any other kind of property, a copyright may be sold. Instead of just conditionally waiving the right to my icon, I could sell it to one person for one use, or I could sell it unconditionally. A copyright that has been sold, however, still expires on the day it would have otherwise, regardless of how many times it changes hands.

If you have purchased a copyright, make sure that you have a tangible document in your possession, signed by the holder of the copyright, that clearly states that you have a right to use it. Also, make certain that the there are no other parties from which you need permission. For instance, if you have permission from an author to copy her research article, check to make sure that you do not also need permission from her publisher, agent, etc. Finally, never operate on a verbal agreement!

So far, the concept of copyrights has been pretty straight-forward: copyrights are held by definite people for definite time periods, and they can be bought and sold as property along with any terms that the seller sees fit. Unfortunately, the last concept of copyrights is not so clear. In an effort to promote sharing of ideas for the benefit of all people, the Copyright Act includes a clause permitting the use of copyright protected material as "fair use". Unfortunately, the writers of the Act did not define the term well-enough to make its enforcement as concrete as would we all might like.

To articulate the distinction between what is fair use and what is copyright infringement, you must take four factors into consideration. These are the factors:

Purpose and Character—the reason for which we may copy a copyrighted work. If a work is copied for purely educational or non-profit purposes, copying it is usually deemed fair use. On the other hand, when a work is copied for the purpose of making a profit copying it is almost never considered fair use.

Nature—the nature of the original work. According to Zaharoff, this distinction is primarily for evaluating whether it is fiction or non-fiction, but also considered is whether or not the work has been published. Published works are much more likely to be considered eligible for fair use than unpublished works.

Substantiality—the amount of the particular work that is copied. When a substantial portion of a work is copied, it is less likely to be considered fair use. For instance an entire chapter of a book is excessive, but a paragraph might not be. What's important is not really the quantity, rather the percentage of the whole work that is copied.

Effect—the impact that the copied material has on the original work published (usually this is the monetary impact). If you copy the most important part of a work such that sales of the original work are reduced, copying the original work would not be considered fair use. On the other hand, if you make a copy of something for your own personal use, never giving it to anyone else or otherwise sharing it, the impact on the original author is minimal, and copying it may be considered fair use.

When dealing with the above factors, be careful! Even if only one factor works against you, there is a very good chance that you will be in trouble. Also, the way these factors are evaluated is subjective: there is no formula for determining whether or not your use of a copyright is fair use. Generally the only safe way to use works under fair use is if you are on the fair-use side of all of the above factors. Any one of them may sink you.

According to Nicole Casarez and Paul Swift, authors of an article published in Public Relations Quarterly, there was an interesting case of copyright infringement involving the Texaco company and some publishing companies. According to the article, a Texaco employee made one copy each of eight entire articles from research journals and put them in his personal research files. Someone in the company reported the actions, and the publishers sued Texaco.

Texaco argued that the employee was exercising fair use of the articles because he was using them for research purposes rather than for profit. The court that heard the case evaluated the categories in the following ways:

Purpose and character—Texaco (and consequently, the employee) would likely profit by copying the works because the research that they were doing was for profit. This counted against Texaco.

Nature—the works were clearly non-fiction and they were published. This factor was ruled in favor of Texaco.

Substantiality—the copied articles were not entire journals, but they were entire articles themselves, therefore they were considered to be complete reproductions. This counted against Texaco.

Effect—The effect on the publishers was minimal because the employee was not selling or distributing the copied materials in any way, he was keeping them for his own personal use. The cost to Texaco would have been approximately $800 to purchase licensure to one more copy of each of the journals from which the employee made his copies. That amount would have been less if they had just bought permission to reprint each of the individual articles one time (probably well under $100). This counted in favor of Texaco.

Based upon these considerations, the court found in favor of the publishers and awarded them an undisclosed amount of money. According to Casarez and Smith it was an amount of "seven figures". The award was almost exclusively punitive (as punishment) because, as stated above, the impact of the work on the publishers was at best under $1000, so retribution (payback) would have been minimal.

Other cases have ended differently from that fought and lost by Texaco. Sometimes, the awards are so insubstantial that many copyright holders do not even bother to pursue people who illegally copy their property. In nearly all cases, however, someone pushed the envelope a little farther than they should have. There are steps that we can all take to avoid this.

First off, do what Baude does. I asked him what he would do if he found out that someone was violating a copyright (I have no reason to believe that this has actually happened to him, so it was an entirely hypothetical question). "I would immediately advise the colleague of the error. This kind of thing could cost someone his or her job. And since most tech writers work on teams, I would want the error corrected immediately so the problem doesn't have the opportunity to pull me in." Furthermore, Baude admits that he sees no clear definition of copyright and fair use regulations. Therefore he would not hesitate to point out anything even a little suspicious.

Remember the four factors mentioned above. If you are clearly on the side of fair use in all of them, it is very unlikely that you will ever get into trouble. On the other hand if you leave anything to chance, you might get burned.

Whenever possible, get written permission to use someone else's work. It is usually very inexpensive to use very small bits of someone's work. Not only will you not get sued, you will be giving credit where it is due and encouraging the exchange of information and research.

Encourage other people in your organization to follow a standardized set of rules regarding copyright. Weiner has seven guidelines for reducing the chances of copyright problems (each of the following steps is a direct quote):

1. Develop a corporate copyright policy.

2. Involve everyone who has an interest in using copyrighted information.

3. Publish your copyright policy and keep your constituency well informed.

4. Ensure protection of information created within your company.

5. Remind users that not all information on the Web is free.

6. Encourage your constituency to use good common sense.

7. Do not hesitate to act.

Weiner's is sage advice for people in a position to make policy decisions in an organization. By clearly setting boundaries and standards of behavior, a company is less likely to get involved in a copyright lawsuit and more likely to be able to defend itself against one if necessary.