Jay Lake (jaylake) wrote,
Jay Lake

[process] Copyright follies

We've got a copyright discussion going in comments on this post yesterday.

manmela said (in part):

Don't get me wrong, it still is a clear case of copyright violation and the act is at best morally grey. However, I've had photos of mine taken with out permission and republished, usually with full credits, and you know... more often than not it's been effective marketing.

If they were changing the name of the authors of the SciFiction pieces that would be wrong on every level, if they're just trying to ensure they don't get lost by a scifi.com disk wipe maybe the way to rectify the situation is to find a new location for the archive.

I fully support copyright, and trust me, I KNOW writing is a business (*looks at bank account and sighs*), but I also believe in preservation of the arts.

I replied:

Well, I actually think the intentions are good here as well. But in US copyright, any unlicensed use is an infringement regardless of profitability. There is a fairly broad Fair Use exception, but this quite clearly doesn't fall under that. There are also exceptions for citations within other works (a form of Fair Use, I believe), but they rely on only an insignificant portion of the copyrighted material being reproduced.

(As a sidebar, this is why music sampling has been so troublesome within our copyright regime. Many pop songs have lyrics that run <100 words, or not much more, so pulling a line or two out or even a small, recognizable cluster of notes, has been held by the courts to be a substantial portion of the copyrighted work.)

The damages are statutory, which is to say they apply to the infringement itself, not to the commercial value. That also means that if a court finds [that] infringement exists, the damages are automatically applied. And they are humongous. If commercial value were being derived, there might also be compensatory damages.

Copyrights aren't like trademarks -- there's no use-it-or-lose-it aspect here. Ie, an undefended copyright does not then lapse. At the same time, many if not most writers object to unlicensed use of copyrights because it puts our work out of our control, and deprives us of livelihood through lost income. In simple terms, it's stealing, regardless of the intentions. Now, if the original work had been posted under certain forms of the Creative Commons license (pace Doctorow), then we'd have a different issue. But the SCI FICTION contract didn't offer CC licensing that I recall, and I don't normally elect it for my fiction.

I have all my flickr photos under a very permissive form of the CC license, btw, because I do perceive and understand the value of that sort of openness. I prefer to have more control over my fiction.

If anyone reading this is an attorney, please feel free to correct me or amplify my remarks.
Tags: process, publishing, writing

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