One of the benefits of recent events bordering on blogging and plagiarism is that everyone got a crash course on intellectual property and copyright. Most know now that you need the author’s permission to use literary, musical and artistic works, as well as films, sound recordings and broadcasts. This is a good thing. Intellectual property law however is more shades of grey than columns of black and white. The slight concern (for me) is that this is mostly being bandied as an absolute rule and that any unauthorised use whatsoever is immediately plagiarism or copyright infringement. This is not the case – absolute monopolies of use are not created. The reason for this is rooted in the [jurisprudential] basis for copyright protection.
Copyright, does not exist solely for the benefit of the content creator and most countries generally declare a justification for their system of copyright protection. For example, in the world’s first ever copyright legislation, the English Statute of Anne, it was stated that the purpose was to “encourage learning”. Similarly, the American Constitution states that the purpose of copyright is “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.”
Copyright protection exists more therefore in the interests of the public good than the interests of the private individual. The competing need to balance economic benefits to rights holders and the public interest of users of the protected works is the reason that there are circumstances in which the works may be used without authorization.
One of the easier exceptions to exclusivity is that copyright protection does not last forever. See here for a breakdown of copyright duration.
Secondly, some laws provided a list of activities that will not be caught by usual copyright restrictions. One if Fair Dealing, which is discussed below, but several others listed in the Nigerian Act include the following:
- reproducing the work by way of parody, pastiche or caricature (e.g. BuniTV’s Drunk in Love);
- reproducing and distributing copies of an artistic work permanently situated in a place where it can be viewed by the public;
- inclusion in a collection of literary or musical work which includes not more than two excerpts from the work, if the collection bears a statement that it is for educational use and includes an acknowledgement of the title and authorship of the work;
- incidentally including an artistic work in a film or broadcast
The final exception or limitation for this piece is Fair Use. Under the Nigerian Copyright Act, the concept is referred to as “Fair Dealing” and is described as follows:
“The right conferred in Section 6… does not include the right to control (a) the doing of any of the acts mentioned in the said Section 6 by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast.”
In other words, as long as I refer to the title of your work and acknowledge your authorship, I can use snippets of it in a subsequent work doing any of the highlighted activities in the preceding paragraph.
In America, there’s a slightly more robust test for determining Fair Use. See the excerpt below from the Copyright Clearance Centre’s website:
“Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered “fair use.”
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.
- The nature of the copyrighted work. Use of a purely factual work is more likely to be considered fair use than use of someone’s creative work.
- The amount and substantiality of the portion used in relation to the copyright protected work as a whole. There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of — or so important to — the original overall work as to be beyond the scope of fair use.
- The effect of the use on the potential market for or value of the copyright protected work. This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.
What does this mean for blogging? It means you need permission to use photos still under copyright. It means you can use excerpts (a few paragraphs – depending on the total length of the essay) from other people’s work in your own without asking their permission first, as long as you acknowledge the original work by title and author. As for tweets, because it is a requirement of eligibility for copyright that “sufficient effort has been expended on making the work to give it an original character”, very few would be eligible for protection and the great majority can be used without the handle owner’s permission. It’s always nicer to ask, though.