22 February 2012

What does it mean to own a creative work in a global society?

By David DesRoches

Type “plag” in a Google search box and “plagiarism” is the first word suggested. Second on the list is “plague.” Some rough logic would indicate that people are more interested in or concerned about plagiarism than they are about the danger of plagues. It’s no certain science, but it’s a good argument for people’s preoccupation with the theft of ideas. Wikipedia’s definition of plagiarism is replete with contradictions, arguments over degrees, even disagreements over its very existence. The page is in constant flux — it was last changed the day before I penned these lines. 

Type “is plag” and Google suggests “is plagiarism illegal.” People, including yours truly, are also interested in knowing if stealing intellectual property is in fact a crime. Some other Google suggestions: is plagiarism illegal, is plagiarism a crime, is it against the law, is it wrong, is it a federal offense, is it a misdemeanor, is it illegal in the U.S., is it cheating, is it ethical, is it theft, and is it on the rise. 

Plagiarism is not illegal in the U.S., although it depends on the degree of the theft. If it violates the Fair Use doctrine than it is a violation of copyright law. Copyright rules for the Web are not clear because of the international nature of the internet. However, the U.S. is arguably more lenient when it comes to prosecuting claims of copyright infringement than other countries. Asya Calixto, a lawyer in Prince Lobel's media and intellectual property group, said that "there isn’t a rule of thumb when it comes to fair use, and that the doctrine is very case-specific."

In one case, Righthaven LLC vs. Realty One Group Inc., the court found that the use of eight sentences from a 30-sentence story was Fair Use in part because it took facts from the story and not creative interpretations of those facts. "The closer you get to non-factual interpretations, comments, or conclusions, the more likely it is that your use would constitute copyright infringement," Calixto said.

Business lawyer Michelle Sherman writes about social media and internet law and says that rewriting articles is “risky,”  as it can be difficult to determine what is an unprotected fact from what is something inferential.

“… [It] is ripe for not simply taking facts which in and of themselves are not copyrighted," Sherman wrote in an email, "and getting into ideas, creativity, concepts, inferences, conclusions, etc. that are protected, and are likely to be brought into the article that is scraped together from someone else's story.” 

Calixto agrees. "One factor that courts consider is whether the original material is more factual or more creative," she stated in an email. "Facts are not copyrightable, so incorporating facts from another news article is likely to fall under fair use." 

In Australia, authors can take up to 10% — or one chapter — of a copyrighted work. That is their definition of Fair Use. But what happens when an American steals eight of 30 sentences from an article published in Australia? That turns out to be 27% of the article, much more liberal than Australia’s 10% limit. So how does this play out?

Both countries are signatories of the Berne Convention, an international treaty governing copyright and intellectual property. While citizens of countries that are signatories of the Berne Convention can ostensibly take cease-and-desist actions against scrapers and over-aggregators — similar to the DMCA take-down notices enforced in the States — enforcing these orders internationally has become nearly impossible, and the infringed party must play by the rules of the nation where the infringing party lives. 

This means that an Australian can break her own laws if she is stealing works from an American, because she is not breaking American laws. But even that is not an absolute. In 1997, American courts used Russian law to determine if an American company, Kurier, had infringed the copyright of a Russian company, Itar-Tass, by literally cutting and pasting hundreds of news articles

There is also the Universal Copyright Convention, which gives similar rights to non-signatories of the Berne Convention. For countries that operate outside these conventions’ oversight, there is no tried and true method.

It must take a certain bit of masochism, and creative thinking, to be a lawyer in this realm. 

“There is no such thing as an ‘international copyright’ that will automatically protect an author’s writings throughout the world,” states the U.S. Copyright office. “An author who desires copyright protection for his or her work in a particular country should first determine the extent of protection available to works of foreign authors in that country. If possible, this should be done before the work is published anywhere, because protection may depend on the facts existing at the time of first publication.”

Basically, if you want to safeguard your online content from over-aggregators and scrapers, you need a team of legal professionals who know the copyright laws of every country with internet access. But don’t forget, as the copyright office notes: “There are some countries that offer little or no copyright protection to any foreign works.”

As of November 2010, countries that are not party to any international treaties governing copyright include Eritrea, Afghanistan, Ethiopia, Iran, Iraq and perhaps Kiribati, which might be honoring past agreements with other countries. 

As plagiarism continues to rise, so do cases of international patent infringement. The U.S. International Trade Commission handles copyright and patent infringement charges for imports and exports, and its caseload has risen nine out of the past eleven years. In 1999, the commission handled nine cases, and in 2010, it handled 56. 

If the commission finds fault, it prevents the infringing party from importing its goods to the U.S. However, people’s confidence in this process is deceasing. In 2005, the commission found that 39% of respondents to a survey thought the infringing goods were not being imported anymore, and 48% thought the goods were still coming in. In 2010, 35% were confident that the goods were not coming in, and 51% said the goods were actually still being imported.

This commission, however, does not handle the intellectual property of authors. Additionally, little effort has been made to safeguard authors from over-aggregators and scrapers, as this type of theft seems the least worrisome compared to the extent of software and media piracy online. Attempts to end internet piracy through legislation, such as SOPA and PIPA, and international agreements target the symptoms and not the source, by amputating the legs to save the body. Nobody has even touched word theft, as lawmakers might consider it too pervasive to even consider, or worse, there is nothing wrong with it.  

Intellectual property theft can even be a cause for security concerns, as is evident in cases such as China’s reverse engineering of a U.S. stealth bomber, the F-117 Nighthawk, to create its own version, the Chengdu J-20. Also, a surveillance drone fell in Iran in December of 2011, and many security experts fear it too could be reverse engineered and used in ways that conflict with U.S. interests.

So what does it mean to own a creative work in a global society? Is intellectual ownership an inherent right, or is it a relic of old ways of thinking? If journalism is a public service and not a means to create a product, how do we then value content monetarily? 

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