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Copyright & Blogging for Business: Part II

Every day, technology makes it easier to distribute and reproduce information – and Photo consequently, to violate copyright laws.  My last post began a discussion on copyright issues that crop up in the context of blogging or otherwise using online media for business purposes.  That post focused largely on the fair use doctrine.  Let’s move on to consider a couple other notes on copyright. 

First, a clarification regarding my earlier post.  When describing fair use factors, I said courts consider the nature of the copyrighted work, and mentioned the general rule that “Bloggers may repeat facts or ideas contained in someone else’s online content, but may not copy the particular way in which the original author expressed that information.”  Be sure to read this extra commentary as stating a general rule of copyright protection in the first instance – not as a limitation on the fair use inquiry.  The pure “fact-copying” rule can’t literally be applied in the context of fair use. (That’s impossible -- if we reach fair use, we know the work’s protected.  Fair use focuses on whether there’s a defense for an otherwise infringing use.)  The “fact-copying” rule is relevant to the fair-use equation simply in understanding the “nature of the work” fair-use factor flows from that basic rule of copyrightability.  Remember the existence of copyright protection stands separately from, and necessarily precedes, the fair-use inquiry.  Bottom line:  the law favors dissemination of factual, informational, and scholarly information, so fair use narrows as the expression becomes more creative or imaginative.  (Thanks to Professor Eric Johnson for pointing out I could have been a bit clearer about that!) 

Internet ≠ public domain.  Find an article online you want to republish onto your company’s Facebook fan page?  Assume that’s OK just because you found it on an unrestricted website?  Many people mistakenly believe that if something is published on the Internet, there’s no copyright protection.  In fact, work isn’t in the public domain just because it’s posted online.  (The assumption might make intuitive sense, but “public domain” has a specific legal meaning.  Yeah.  The “lack of intuition” thing happens a lot in law.)  The internet offers one (well, many) form(s) of publication.  Just because technology allows others to more freely access a work doesn’t entitle others to freely copy, display, adapt, or distribute that work. 

Assume it’s protected.  Unless the copyright owner clearly relinquishes his or her rights, it’s best to assume it’s protected.  Copyright protects any original authorship that’s fixed in a tangible form.  A work doesn’t have to be registered with the Copyright Office to be protected (but registration does offer benefits to the owner). It doesn’t have to include a copyright notice to have copyright protection (the law used to require this, and although it doesn’t anymore, it’s still a good idea to include a notice).  Want to re-post a picture, but can’t figure out who owns it?  Copyright protects even anonymous works.

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