We’ve all seen it. A video on YouTube, a famous song that someone has put to clips from their favorite TV series. And hidden in the video description, those wonderfully naive words: “No copyright infringement intended”. Now it seems harmless enough and a good way of getting your intention across. You’re in the clear, right?
Well, no. You’re not. That’s not how copyright works. Copyright is one of the more complex legal issues in modern society and I’m not going to be diving into the specifics and intricate workings because, frankly, I’m not qualified to do that. What I can do, however, is dispel a few myths that people seem to have about what counts as infringement.
1. But I’m not making money off it.
Good, because if you were that would make you naive AND stealing someone else’s rightfully deserved income. The problem is that monetary gain doesn’t actually define copyright infringement. Copyright infringement is defined as the copying, distribution, adaptation, performance or showing of a work without prior consent from the copyright holder. (1) There is no requirement that the infringement must involve monetary gain.
There is also the issue that just because you aren’t making any money from it, doesn’t mean you aren’t depriving someone else of making the money they deserve. If someone views your copy of a work rather than viewing the officially released version, the owner is losing out on money that should have been obtained through purchasing costs or ad revenue. For every person that views the infringement, one less person views the original.
2. But it’s for education.
This is more of a gray area, admittedly, and depends on how the work is being used. Copyrighted work can be used (in most countries) for the purposes of teaching with a very specific set of limitations. The three main stipulations are:
- The purpose of the use is non-commercial.
- Where practical, there should be sufficient acknowledgment of the authorship of the work.
- The use of the material is fair. (2)
The exact definition of what constitutes “fair use” is up for debate and has no legal definition. In most cases, when it comes to education, the distinction comes down to money. For example, you may use a few lines of poetry presented in a classroom without worrying about infringing the copyright, however, displaying an entire poem might affect the students’ decision to buy the book and as such could be deemed an infringement if the correct license hasn’t been acquired.
These exceptions do apply to the performance of work (such as plays) or showings of work (such as films) but under more specific limitations. A work can be performed or shown to teachers, students and people directly connected with the educational establishments. Under this exception parents of students and friends DO NOT count as being directly connected to the establishment and therefore a license must be obtained before the performance or showing. (3)
3. But it’s only for an assessment.
The educational exceptions I talk about above only apply to “illustration for instruction” (3), as in they only apply to teaching. If you are submitting work for assessment at a school, college or university, you must either own the copyright for all submitted work or have permission to use the copyrighted work from the copyright holder. In fact, most colleges and schools have a clause in their submission contract (and yes, it is a contract) that states that you confirm you own the copyright or have evidence that you have obtained permission for its use.
This applies to any use of a copyrighted work such as direct inclusion or adaptation.
4. But it’s a parody.
This is even more of a gray area than education exceptions. Under most copyright laws, use of a copyrighted work as parody or pastiche is considered fair use, and you should be fine. The problem is that there is also a right for the copyright holder to not have their work subjected to ‘derogatory treatment’. The exact definition of that is another one that is up for debate and has no legal distinction.
It is also worth noting that the amount you can use from a copyrighted work may not be as high as you think. The UK government describes that “a comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well-known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork” (4), but they wouldn’t consider using an entire song to be “fair use”, even in the case of a parody.
5. But I’m in [insert country here].
Honestly, it doesn’t matter usually. Copyright laws are territorial and don’t apply based on where the infringement takes place, but on where the copyright is registered. If you are infringing on an American’s copyright, it falls to the American courts to determine if it is an infringement or fair use.
An exception to this is signatories to the Berne Convention. These countries have agreed that they will treat all copyrighted works as though they originated in their own state. Thus a performance in the UK of an Italian work would fall under British copyright laws, not Italian ones as both countries are signatories to the Berne Convention. (5)
But where does all this leave me?
Honestly, if you’re reading this, you’re probably a small enough entity on the global stage that many copyright holders wouldn’t even know that you’re infringing their rights. In reality, however, this isn’t about what you can get away with. It’s about what’s right. Copyright exists as a way to allow individuals to maintain ownership over their works for long enough that they reap the benefits they deserve (the actual length of time that is vs. the time copyright lasts is a debate for another day). If you are infringing someone’s copyright, you are actively saying you don’t think they deserve to make money from their work. In my book, that’s just not good enough.
If you really are stuck for ideas but want to create stuff: look at the public domain. There is a whole treasure trove of stuff there for you to use. For free. Look at the Disney company, their entire beginnings were built on adaptations of public domain stories. If that’s not your cup of tea, try picking up a history book. You’d be surprised at the stories just waiting for someone to tell them. The point is, you don’t need to infringe on someone else’s copyright when there is a whole host of other sources of work.
Final takeaway: if in doubt, don’t do it. Copyright is a really complex issue and different countries deal with it in different ways. Just play it safe and stick to your own creativity.
(1) – Intellectual Property Crime and Infringement – https://www.gov.uk/guidance/intellectual-property-crime-and-infringement#copyright-infringement
(2) – Copyright User – Education – http://copyrightuser.org/topics/education/
(3) – Copyright, Designs and Patents act 1988 (sections 32-36) – http://www.legislation.gov.uk/ukpga/1988/48/part/I/chapter/III/crossheading/education
(4) – Exceptions to Copyright – GOV.UK – https://www.gov.uk/guidance/exceptions-to-copyright
(5) WIPO-Administered Treaties: Berne Convention for the Protection of Literary and Artistic Works – http://www.wipo.int/treaties/en/text.jsp?file_id=283698