Copyright, Plagiarism, and Writing – Explained

So you’ve got this great idea: world championship weightlifter Barry Hotter is approached by an enchanted dumbbell and invited to the magical Mugwart’s Academy for Jocks. There he learns ancient Tibetan psi-powers that help him lift weights with his mind, finds true love, and defends the world of non-weightlifters from the evil Lord Lift-a-Mort.

Question: should you expect a call from J.K. Rowling’s lawyers[note]Or, since Rowling’s a Britt, solicitors.[/note]?

That’s where copyright and intellectual property law comes into play.

Index

This is a long post, folks. Here’s what you’ll find here:

• The Origins of Copyright
• The Berne Convention
• Key Concepts
• Economic Copyright
• Claiming Copyright
• Fair Use
• Public Domain
• Plagiarism
• Patents
• Trademarks
• Derivative works
• Poor Man’s Copyright and Other Myths
• There is No Copyright Police
• Oh, No, I’m Accused of Copyright Infringement
• Help, Someone’s Stolen My Work!
• Isn’t There Anything I Can Do?

A disclaimer: I’m a writer, not a lawyer. Not that being a lawyer would help very much, since IP law varies by jurisdiction (usually a country, but sometimes different laws apply in different parts of a country, or to different people/juridical entities[note]It’s like O.J. Simpson could be acquitted in criminal court, and then be sentenced to pay millions of dollars in damages for the same murder in civil court.[/note]). But I do have a degree in journalism and an interest in copyright law, so you’ll be getting the high-level picture, starting with the Bern convention, and ending a bit above the line where the gentlemen (and women) with legal degrees enter the picture.

The Origins of Copyright

Before the advent of the printing press, there was no need for copyright. Since making copies was slow and difficult there was a natural bottleneck to the process in the amount of monks you were able to hire to copy your texts. And what was copied was mostly: A) religion and B) stuff that made kings and rich dudes look good.

Then came Mr. Gutenberg and suddenly everyone could have a bible of their own. Which didn’t require copyright because if there’s one thing religion wants, it is to spread. Of course, not many people could read, and books were still expensive, so it all turned out for the best.

Enter industrialization. Actually enter the British Empire, which started the trend towards copyright by manufacturing (educating) a large number of interchangeable clerks that could be sent anywhere in the Empire and have the skills to replace any other clerk (usually because that other clerk died from malaria, dysentery, cholera, or greed). So towards the later half of the 19th century, there was public education in most western nations, the masses had some leisure time, and books were the hot thing in entertainment[note]Ok, there’s more to the history of education, but let’s pretend it was this simple.[/note].

Until then, artists wrote, got paid for selling stuff to a publisher, and then got ripped off. In fact, original “pre-copyright copyright” laws protected publishers from having other companies copy stuff they printed, the artist being screwed no matter what[note]Kind of how it works today, come to think of it.[/note].

Successful artists were supported by moneyed individuals who liked to brag about their pet writer. Successful but less hob-nobbing writers got paid by selling their work to printers or newspapers (ever wonder why so many classics were written as serials? The answer is Popularity + Recurrence = More Money).

There were local laws prohibiting writers being ripped off, such as the British “Statute of Anne”[note]Full name: An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned[/note], which appeared in 1710 (first copyright law in the world, go Britons!), but if you had a blockbuster novel in one country then you’d have a hundred enterprising printers in neighboring countries copying it on the sly, and sometimes even selling it right back to the original country.

With money being involved, the rich and powerful got together, decided to split the cake between themselves, and set down the Berne Convention. This is the basis of all modern copyright.

The Berne Convention

The Berne Convention of 1886 (note the “e”, this is the Swiss city with the French spelling) is to copyright what the Bible is to Christianity, or the New York Yankees playbook is to the Boston Red Sox. (Sorry, couldn’t help myself. We love you, Red Sox. We’ve even made a movie about you.)

To make a long story short, a bunch of nations came together in Berne[note]Not the actual nations, no.[/note] and decided that copyright law should be international. Basically, they plugged the “let’s print it in Denmark”-loophole, which made a lot of people who didn’t own printing companies in Denmark very happy.

The Bern convention is split into two parts, the two parts of copyright: moral and economical.

The moral aspects of copyright are eternal and inviolate, the economic are not. More on that later. Basically, the moral aspects (yes, they are called “moral”) mandate that an author has the right to be recognized as the author of a given work and no man or entity may remove that right. I might want to state that I’ve written Hamlet but I’d be infringing on Shakespeare’s moral copyright, so no can do[note]Which puts ghostwriters in an interesting position, but that’s governed by a set of rules which general fall under the “work for hire” umbrella, together with every scrap of email you’ve ever written while on the clock – otherwise you’d be able to sue your boss for forwarding your emails.[/note].

Most of the world has signed and ratified the Berne Convention (the USA did sign in 1989, after wavering on the subject for some 100 years).

Key Concepts

The key concepts of the Berne conventions are:

• Copyright is assigned at the moment of creation. You don’t need to register your work to gain copyright for it (we’re looking at you, pre-1989 US-of-A).
• Copyright law is applicable to all nationals of the signatory nations (so no printing in Denmark) for 50 years after the author’s death, and no nation may unilaterally revoke that copyright (nations may extend the copyright term though – like to 125 years in the US).
• Copyrighted materials are allowed to be copied providing they copying meets certain criteria. What those criteria are is defined by each nation (more or less, see Fair Use below).
• Copyright is established in the nation where the work is first published.

Remember these, as there will be a quiz later.

Economic Copyright

This is what we usually mean when we talk about copyright. Since there’s no money in moral copyright, nobody really cares about it anymore[note]Except artists. We’re strange in wanting to have our name(s) associated with our work.[/note].

Basically, all the points listed as key concepts above deal with economic copyright. When I say copyright in the rest of this article, I’ll be meaning economic copyright.

Copyright (remember, talking about economic copyright here) can be bought or sold, assigned to others, licensed, done whatever you please with. Which is why when Paul McCartney sings “Yellow Submarine” he has to pay money to Michael Jackson’s estate[note]Or rather to the creditor’s now owning Michael Jackson’s estate, since it went bankrupt.[/note] since MJ bought John Lennon’s part of the Beatles’ copyright. Which makes it fun being Paul, and might be the reason he doesn’t sing Yellow Submarine all that often.

This is why it’s so important to read any contract you sign, since you can get royally screwed on your copyright, all nice and legal, when paragraph 157, subsection D says “oh, and we’ll take all the rights you ever have to anything ever again, thank you”. Copyright law is all about buying and selling.

Copyright deals with the expression of something. This is important, it means that knowledge and ideas can’t be copyrighted (that’s where patents come into play). It also has repercussions on plagiarism, more on that later.

Claiming Copyright

To claim copyright for something that something needs to fulfill two requirements: it has to be fixed and it has to be original.

The fixed requirement is straightforward: you must set down your work in order to be protected. So having your entire novel in your head doesn’t give you any rights to it. Typing it out does[note]Which is another great reason to, you know, actually write.[/note]. Same with music: if you sing a song you don’t get any copyright protection for it. Record it and you do.

The originality requirement basically states that whatever it is can’t be created by someone else. So no copies. Meaning that typing out 50 Shades of Gray by hand doesn’t give you any rights to E.L. James’ millions. But writing your own fan-fiction of Gray, that’s a different matter (Anastasia gets together with Kermit the Muppet for a quick game of spank the frog, now give me my money!).

There’s an interesting concept associated with the originality requirement, the so-called “threshold of originality”. This is the lowest level at which something is considered to be created by a certain person (it doesn’t need to be original per se, the word originality comes from originator/creator).

A prime example: a couple of years back there was a fight between two writers in Sweden where one (a man) called the other (a woman) a “fucking cunt”. The female writer published the email in question in her nationwide newspaper column – and promptly got sued for copyright infringement. The court, however, decided that calling someone a “cunt” did not constitute enough originality in order to establish copyright and dismissed the claim. Victory for feminism and common decency!

On the other hand, Muhammad Ali (the boxer) is credited with having written the world’s shortest poem:

“Me
Whee!”

(Yes, apparently that’s how it’s supposed to be spelled. I always thought it was “Me, We”, which I found rather profound. So much for profound boxers.)

So now I’ve reproduced Ali’s poem and infringed on his copyright, right? Nope, I’m claiming fair use.

Fair Use

Fair Use is a tricky subject. Basically fair use means that you can reproduce parts of a copyrighted work in order to analyze, educate, satirize and similar things.

However, fair use only exists in US copyright law[note]And, in a variation, in Poland, Israel and a few other nations.[/note], but most nations have other provisions in order to limit copyright and allow works to be reused in some way. In the old British Empire, this is often called “fair dealings”.

In the US the more of a work you use, the harder it is to claim fair use. Also, money plays a part: if you’re doing it not-for-profit, the restrictions on fair use are much laxer than if you’re trying to make money from the copyrighted work.

In other nations, the money requirement isn’t there, or there can be an education requirement, or a thousand other aspects. Get a local IP lawyer if you need to figure it out.

One thing that’s pretty general is satire. I’ve yet to see a country where satire isn’t allowed in some form or another[note]In copyright law. Making fun of the government is a bad idea in a lot of nations.[/note]. Also, in some countries it is allowed to produce alternative forms of the work, such as Braille copies or audio books for the visually impaired, without the permission of the copyright holder. In such cases there’s often a central agency of some sort who oversees this process and pays some form of compensation to the rights holder.

One thing to remember is that fair use can be way, way less that you’d think. Gerald Ford’s memoirs clocked in at some 200 000 words. US weekly magazine The Nation (the longest running weekly magazine in the US) reprinted some 350 of them – and got nailed on copyright infringement. The reason? They reprinted the most important[note]Or valuable, if you want to look at it that way.[/note] 350 words: why Ford pardoned Nixon.

Public Domain

Works in the public domain are exploitable by anyone. This means that you could print the collected works of Shakespeare whenever you wanted. This does not mean that Shakespeare doesn’t hold any copyright to them. He’s still got his moral copyright. Public domain simply means that the economic copyright has lapsed, expired or been removed (by the author donating the work to the public domain).

You have the right to do whatever you want with works in the public domain, except, in some jurisdictions, to alter them and claim that this is the way the original author created them.

Note that public domain is not derivative. The Bible is public domain, but if I translate the Bible to Mandarin Chinese I can claim copyright for my translation.

Fun fact: the book “Peter Pan”, the original by J.M. Barrie, is covered by a special copyright that will never, ever, lapse or expire. This is because the UK parliament decided to protect Barrie’s gift of the copyright to the Ormond Street Children’s Hospital in order to finance the hospital.

Plagiarism

Forget plagiarism. Seriously it doesn’t exist.

Plagiarism is an invention of academia[note]Like, universities and stuff.[/note] where ideas, not the way they’re expressed, is the main thing. If you’re the first gal to figure out how to connect your DeLorean to your Flux Capacitor you get the Nobel Prize[note]Actually, you get shot by terrorists.[/note]. If you’re the second guy to figure it out you get to be bitter for the rest of your life.

Actually, it’s worse, it doesn’t matter if you figure it out first, you need to get published first. So if you publish in a fast-track journal you can get ahead of someone who publishes in a slow-track journal. And the same with patents, pay for a fast-track application and you get the money, no matter who invented the stuff. Which is what’s happening in the CRISPR-Cas9 gene-editing brouhaha right now.

Fun fact: The Soviet Union was the largest infringer of copyright in the world, with state-run institutions illegally translating and publishing academic articles from all over the world. Anecdotal evidence points to this still being the case in Russia today, which is the reason Russian is the second most popular language for academic publications.

Not so fun fact: If you want to publish an academic paper, be prepared to hand over all of your rights. That’s right, the journal takes your copyright in perpetuity (!), and all the copyright to your underlying collated data (!!), and if things go wrong and they get sued you agree to reimburse them all costs (!!!), and, in most cases, if you want your paper to be readable by anyone outside the journals’ limited core of subscribers you have to pay them a fee to grant you open access, ranging from $5 000 to $125 000 (!!!!¤#”¤%!). When I first read a standard academic publishing contract I think I pooped my pants a little. But then again, there is a reason why the largest academic publisher, whom I’m not going to name because they’re very keen on suing people[note]But their name consists of two surnames and they’re commonly shortened to three characters, with an & in the middle. So now you know.[/note], made a profit of more than $1 300 000 000 in 2013. Most of this coming from fees paid by academics publishing in their journals. Vanity presses are nothing in comparison to academic publishers (although there is a growing Open Access Publishing movement that’s trying to combat this).

But back to copyright law. Since plagiarism is all about crediting ideas, you can avoid plagiarism charges by mentioning who came up with it first. This doesn’t work in copyright. If it did you would be able to sell bootleg copies of Star Wars as long as you wrote “George Lucas’ Star Wars” on the box[note]Or rather Disney/Pixar’s Star Wars. Oh, where did my youth go?[/note]. Thus, pretty much nothing you read about plagiarism is applicable to copyright, even though some people still call copyright infringement “plagiarism”.

Patents

Patents have nothing to do with copyright. You can’t patent what you can copyright, and you can’t copyright what you can patent.

Patents are all about ideas, solution, methods, etc. A patent is registered, and has to be original in the term “first”. There is no Threshold of Originality in a patent – first to register is first to cash in.

Trying to patent a novel would get you laughed at. Except in Australia where all patents are approved by default and sorted out in court. (True story, there’s a guy who patented the wheel in Australia. Another guy then promptly patented fire.)

Trademarks

A trademark is a protection for a phrase, sign, design, color or other form of identification marker for a particular service or company.

You can’t trademark a novel, although you could trademark its title. You might get away with trademarking a character name, it was unique enough. Not that it would do you any good – a trademark has to be defended or it will lapse. Thus, if you can’t prove that you’re suing everyone who uses your trademarked catchphrase, then it’s automatically been made invalid. Congratulations.

Which is why companies are rabid about protecting their trademarks. And keeping those registrations up-to-date. (True story: in the 1990’s Pepsi lapsed its trademark for the phrase “The Choice of a New Generation”. Another company snatched it up, and now the choice of a new generation is Better Oats oatmeal. I’ve also heard about Coke lapsing it’s trademark to the Coca-Cola logo and an entrepreneur snatching it up, then reselling to Coke at a hefty profit, but I’m unable to find the reference.)

Derivative works

Ouch. I hoped that I wouldn’t have to mention this one. Derivative works is to copyright law what manure is to a farm: messy, dirty, hard to deal with, ripe with festering bacteria, and yet necessary.

Basically, a derivative work is something that isn’t a copy but that a “casual observer” would find to be “obviously similar”. Who’s the casual observer? What is obviously similar? Nobody knows. Until you get sued, that is.

Some forms of derivative works are quite obvious. A translation, for instance, is very dissimilar to the original – yet obviously similar. The words are different, the sentence structures are different, yet it’s the same book.

Same with an audio book – it’s nothing like a printed book, yet the content is obviously similar.

The problems arise when you start to look at ideas, character, and plots, none of which are copyrightable[note]Did I just invent a word? It’s not in Merriam-Websters at least…[/note]. A couple of years back a German court ruled a writer in violation of copyright for writing a sequel to the novel Doctor Zhivago[note]It’s called “Lara’s Child” if you’re interested.[/note] because it used the same characters as the original. In order to do so the court had to stretch the copyright claim, not to the original novel itself but to a later Italian translation of it.[note]My opinion on the matter is completely invisible, isn’t it?[/note]. And Germany became the laughing stock of the world, considering how character appropriation is not only common but accepted, and classic writers such as Shakespeare, Dumas, and Dickens have been doing it for ages (also Homer – the Iliad is a grand exercise in character appropriation).

Another problem, which has popped up in numerous lawsuits lately, is writers suing each other because of similarities in books. Book A is about demon-fighting monkeys who band together to save a princess. Book B is about monster-fighting gorillas who form a group in order to save an empress[note]Movie C is about a monkey, a farmboy and a man who could be a gorilla with a laser sword going to a not-moon in order to save a princess.[/note]. Sue those bastards!

To anyone who has any knowledge of writing, books are full of tropes. In any given genre some tropes will be dominant and books using the same tropes, plots, and archetypes are common. This does not mean that the works are infringing upon each other. In order to infringe you need to create a derivate of a certain work. It’s not enough to take common tropes and mash them together in a similar order. Which is why most such suits get tossed out after a while and the wronged party is out the costs of the attorney and trial.

Poor Man’s Copyright and Other Myths

Poor man’s copyright, that is, mailing yourself a copy of your work. Stems from when you had to register your work in order to gain copyright for it in the US. This does nothing. You have copyright of your work the second you put it down on paper. No need to mail anything to anyone. Even when you had to register to gain copyright, mailing yourself a copy did nothing. Which the USPO, USPTO, and UK Mail all state.

Another myth is the need to put a © marker after whatever it is you’re writing. Completely redundant. Write it and you’ve got the copyright. (BTW, (c) is not a legal equivalent of the ©.)

Copyright infringement is often seen as a mild civil case – however, there are countries where it’s a felony. In Malaysia it’s even possible to be executed for copyright infringement (although I haven’t heard of anyone actually being executed for it). Also, being civil litigation, innocent until proven guilty (or the equivalent) doesn’t exist in most copyright cases.

There is No Copyright Police

Except in Sweden. Here we’ve got the anti-piracy bureau, a lobbying group that’s got its own, private police force, and has lobbied enough to get an actual police force of some 15 full-time officers to look out for the movie companies’ rights.

Of course, they won’t help you. Unless you’re MGM-Warner, in which case I’m proud that you’re reading my blog.

But for us regular mortals, the only recourse in order to fight copyright infringement is to resort to a lawyer and a civil suit. Which is uncertain. And expensive. But there are cheaper ways.

Oh, No, I’m Accused of Copyright Infringement

Relax. Most likely you’ve gotten a Cease and Desist letter, known in the business as a “C&D”. A C&D is what a company will send you if they find that you’ve used their intellectual property without permission. Basically, a C&D is the legal equivalent of a big dude with hairy knuckles knocking on your door and saying “knock it off or else…”.

What happens next is up to you. Most people simply cave in. Yep, they’ve posted a picture of the Flash and Mrs. Batman on their site, it was fun while it lasted, but now it’s gone. Case closed, lawyers happy, justice and IP ownership has been upheld.

Others will try to fight it. Most common is to simply ignore it and hope that the money isn’t there. It costs a lot to sue someone over copyright infringement and the only way to make that money back is if the case is won and damages awarded. And if the person doing the infringing has any money.

I know of a writer who replied to a copyright troll with the statement: “All I own is an eight-year-old computer and 14 cats. You’re welcome to them.” She never heard back from the troll.

A copyright troll (or patent troll, there are those too, as well as trademark trolls, although that’s more unusual due to the rigid way that trademarks are registered and enforced) is a company that acquires the copyright to something and then sends out lots and lots of C&D’s stating “we own this, your’s is obviously a bad copy, pay us ${echo SmallSum} now or we will sue you and force you to pay ${echo HugeMoney} later”[note]There are also companies who do this with porn: “Thank you for buying the BumBuster Deluxe from Giant DidliDongs Inc. Please pay this obviously fictional invoice or we’ll shame you in front of everyone you know, and send a note to your mother.” Which goes to show that there’s never a shortage of trolls and sh*theads.[/note].

As for actually suing people – that costs a lot of money. Most companies won’t spend that type of money unless they’re trying to make an example of someone.

Also, most copyright cases don’t make it to trial as the companies wrangle for a couple of years, then settle out of court for undisclosed amounts. Not always paid to the company who is in the right, but rather to the one who has the least to lose, or can afford to fight the longest. Same with patent cases. Yay, law and order.

On a lighter note, miniature gaming company Games Workshop (yep, there’s no apostrophe in there) is widely known for their aggressive C&D practices, hitting fan sites, sellers and even sites they themselves support. You’d be amazed at how many people you can piss off when doing stuff like this.

Help, Someone’s Stolen My Work!

First, pick up a copy of the Hitchhiker’s Guide to the Galaxy. Read the cover[note]In case you’re less of a geek than I (highly likely), it says “Don’t Panic”[/note]. Breathe.

First thing is: ask yourself – will this hurt me, beyond making me upset? Remember, we’re dealing with money here. Copyright is about making money. If the publication doesn’t hurt you, or even helps you, consider leaving it alone.

But let’s say you’re really pissed. Or they’re making money from your work, selling it on Amazon or whatnot.

Then you need to send them a C&D. There are templates online, and you need to send one that corresponds to the jurisdiction (country) where the infringement is happening, alternatively where the work is originally published. This is a lot of work (often, unless you’ve got a prepared template) so my advice is to simply contact the infringer and say “do you mind taking down my content”. Or if you want to figure out a way to use it: “do you mind posting links to me next to my content?”

Or just send them a generic C&D. Most people will get scared by an official looking “I’m coming for you” document.

Of course, this likely won’t help you against pro IP-thieves, like content scraping sites. Then you need to decide whether it’s worth the money to pursue the issue further. Because fighting for your rights is expensive.

Isn’t There Anything I Can Do?

TLDR: no. Hard answer: depends on how much money you’re willing to devote to the fight. Remember, there is no copyright police. You need to do the work yourself.

That’s why I’m so keen on the whole “scratch my back and I’ll scratch yours”-idea. If you can find a way to work with whomever is infringing on your work then do so. Often you’ll get more money/exposure/fame that way.

Of course, the next recourse is to go after whomever enables the thief to spread your copyrighted content.

Most companies have some form of policy forbidding IP-theft and having IP-theft as grounds for termination of service. Of course, proving this might be hard, but it’s often a better way to go than to try and sue someone. If nothing else, a company with nothing invested is much more pliable to a nicely legal letter than someone who’s gone to the trouble of stealing your work.

Unfortunately, companies enabling content theft aren’t responsible for it. It’s right there in the WIPO treaty of 1996. So that if a user is copying your works on the net, you can’t sue the Internet Service Provider, you have to find and sue the user. Same with a forum where users share copyrighted materials – you can’t sue the forum owner, you have to track down the individual users.

Which makes the whole Piratebay trials really strange. But then again, when there’s big money involved things tend to be bendable, including laws.

As for you, as a content creator, managing to sue a pirate or copyright infringer, the chances are slim, but they do exist, although the cost is very high and the chances very, very low.