The conversation on the International Reading Association listserv with Hugo about his views on dyslexia brought up an issue that is related more to 21st learning than to the actual content of our discussion: copyright. So I thought I'd try to clear up for myself what I know about copyright as it applies discussions like this...
Can you copyright an email?
The first question that comes up is pretty simple. Can someone copyright an email - or the words they say in an email that they send to a public forum? The short answer is yes. In fact, the author doesn't have to actually do anything to protect his work in an email format. Protection is assumed under the law at the moment of creation.
Actually going through the steps of registering your work (even if it is just a 3-sentence email) increases the amount of protection you have against seeing your words misused. If you haven't down that after three month, the amount of protection you have decreases (at least in terms of the penalties that can be levied against someone who violates your implied copyright).
The general public often has difficulty understanding what exactly is being protected by copyright laws. You cannot copyright facts or ideas. You can protect ideas in some other way (like with a patent), but if someone else talks about it then I'm allowed to talk about it. Copyright becomes a problem (possibly) when you begin using someone else exact words - especially if you use a lot of their exact words.
Copyright vs. Plagiarism
Among the most common and difficult problems I have when I discussion copyright law with other people is getting them to understand the distinction between copyright and plagiarism. Plagiarism is an ethics issue. It is presenting other people's ideas as though they were your own. Copyright is a commercial issue that has to do with reducing the value of someone else's work. One result of confusing these two ideas is that people think they haven't done anything wrong it the reprint something in its entirety - as long as they attribute it properly to the author.
A good example... Ken Nesbitt writes children's poetry and publishes it at his web site: Poetry4kids.com. There are advertisements on his site that probably help pay the bills (nothing wrong with that). If I reprint his poems on my site - even if I give him credit for them - I'm violating his right to make money off of his poems because the changes are pretty good that people who find his stuff at my web site won't spend as much time at his web site. It's certainly not plagiarism (since I gave him credit for the poems) but it is copyright violation (unless I have his permission to re-publish his poems).
Fair Use
While the email that you send to a listserv is copyrighted more or less automatically, copyright has never been intended as a total and complete prohibition against other people reprinting some portion of your words. A large portion of copyright law is devoted to explaining when you can reprint someone else's words.
"Fair Use" is an idea based on the concept of free speech and designed to allow limited exceptions to copyright protection to promote public discussion. While the concept is called "fair use" in America, I think many Commonwealth nations use the term "fair dealing" instead.
The law on fair use isn't particularly exact. Four factors described in the law help a judge decide whether or not you are violating someone's copyright or exercising fair use. Ultimately though it comes down to a matter of, well, judgment on the part of the judge if you are sued for infringing on someone's copyright. Those four factors are:
- The "purpose and character" of your use of someone else's words. If you are making money yourself from someone else's work, a judge is more likely to see that as copyright infringement than if you're quoting them in a non-profit or educational context. If you re-publish a portion of someone else's work to promote dialog and discussion of ideas, a judge are more likely to see that as fair use.
- The nature of the copyrighted work. The more important a topic is to the welfare of the general public, the more relaxed judges tend to be with copyright.
- The size of your quote. The more you quote, the closer you come to violating copyright. But this is a very grey area where in some cases quoting just a few words will get you into trouble and in other cases you can get away with reprinting a complete work under fair use.
- How your action in quoting someone impacts the market value of the work you're quoting. Giving away large parts of someone else's book for free might reduce the amount that they make from selling their book; judges don't like that. On the other hand, reprinting someone's email... well, no one make much money off of expressing their opinions on a listserv.
Reasonable Expectations
One of the keys when you consider quoting what someone has said on a listserv is reasonable expectations. When I send an email to a listserv, I do so knowing that they are going to save my work for others to access in an archive of some kind. I also know when I send my thoughts and words to a listserv that members of the listserv are going to forward my words on to colleagues, friends and relatives - an action that could be construed as violating copyright laws.
It is reasonable for me to assume that my work will be republished in part (or perhaps as a whole) when I send a comment to a listserv, and it is reasonable for me to assume that the person who republishes my work will see it as an act of fair use on their part.
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