Re: web site features: fair use? or allowed via contract with freelancers?

On Sat, 11 Mar 2000, Clifford Potter <rcp[_at_]quarles.com> wrote:
>
> On 3/9/00, Colin Goff <colgoff[_at_]worldnet.att.net> wrote:
> >
> > On Wed, 8 Mar 2000, Julie Cason <julie[_at_]icopyright.com> wrote:
> > >
> > > * * *
> > > Apologies for resending this, but I hadn't received any responses over
> > > the last week (which is unusual for this list).
> > > * * *
> > >
> > > I'm wondering if any of you have legal insights into the now-pervasive
> > > web site features of "Print This Story" (printer-friendly versions
> > > created from content-rich web pages) and "Email to a Friend".
> > >
> > > It seems that publishers, by providing these tools, are enabling (if not
> > > actually authorizing) readers to easily make copies of online works. If
> > > the publisher owns the copyright to the works, all seems perfectly fine
> > > and within the owner's rights to allow.
> > >
> > > However, if the works were originally created by freelance authors,
> > > there are at least 2 scenarios:
> > >
> > > 1) the publisher's contract with the writers (photographers, artists,
> > > et al) specifies that the Web site publisher retains the right to
> > > enable emailing and printing.
> > > 2) or the contract is silent on these Web site features/utilities.
> > >
> > > I would very much appreciate feedback along the following lines:
> > >
> > > 1) copyright disputes over enabling these features (esp. in light of
> > > Tasini v. New York Times)
> > > 2) if you haven't heard of any disputes, whether you think there might
> > > be merit in some
> > > 3) and any of this list's typically insightful, incisive analysis.
> >
> > I'm not an attorney, but I am a writer and a website designer, so maybe
> > the way I handle this situation will be informative for you:
> >
> > As far as I can tell (although it seems that copyright issues are only
> > ever clarified in court, not by the original laws), the copyright for
> > Web page content belongs to the designer, unless the designer is working
> > specifically under a "for hire" contract.
> >
> > Because of this, I provide my customers with a letter that transfers
> > the copyright to them after finishing the project (and getting paid
> > for it). I consider this just a formality, but it's better to make
> > everything clear.
> >
> > Regarding written materials that the site allows people to forward via
> > e-mail or print, I would consider this to be a "fair use," just as if
> > someone were to tear out a magazine article that I had written and mail
> > it to a friend. It still doesn't allow the website visitor to claim the
> > work as their own or violate any other copyrights; so I wouldn't expect
> > my customers to pay me anything extra or put any clauses in my contract
> > with them.
>
> I still have not seen anything dealing with your question on this
> list-serve, so I will take a stab at something. Note that many issues
> relating to the Internet will remain unresolved by the US Supreme Court
> for some time. That said, the "fair use" exception to the owner's right
> to control copyrighted materials continues to be debated and changed,
> with further changes likely.
>
> Thus far, unless someone knows something different, the copying that
> occurs through browsers is likely to be considered fair use as long as
> it is being done for personal use. I leave to the imagination and court
> decisions what personal use might be. Certain other privileges apply
> thus far, such as the right to copy for archival purposes depending on
> the medium, etc. One thing it is likely to mean is that one cannot
> email copyrighted materials without permission. This position might be
> seen to be strengthened by the mechanisms that are available to send
> hyperlinks rather than copies. On the other hand, if the image
> downloaded is the same as the image obtained through the hyperlink,
> "where's the beef" as long as the image is not changed? (However,
> sometimes all content is not or cannot be downloaded or displayed later,
> thereby altering the work.)
>
> The copyright owner is likely to be able to preclude any non-statutory
> exception in the absence of specific statutory or court case support to
> the contrary. Thus, be wary and proceed at your own risk should you be
> violating the "shrink-wrap"-type license included in most websites today
> even if they have software mechanisms that permit certain levels of
> copying/printing.
>
> Rights of web designers are certainly of growing significance to the
> Internet palate, and continue to bring with them issues that have
> existed in the print world since the beginning of time. Few still
> properly obtain complete and proper licenses for the graphic design and
> art. Moreover, even if they do, artists and others have certain rights
> in the US somewhat comparable to the moral rights found in certain
> foreign countries that permits them some control over their works even
> if licensed.
>
> These and other laws differ in various countries, some of which have not
> yet even signed the Bern Convention. Thus, far more detail is possible
> and probably appropriate. However, this is probably why no one tackled
> this one yet!

My fellow Cliff Potter said that "many issues relating to the Internet will remain unresolved" in US Law. I would said that this also applies to the Law of many other countries, members of Berne Convention.

Section 9 of Berne Convention establishes a strong faculty to authorize or prohibit the reproduction of a work in any form. The agreed statement about the section 1.4 of WIPO Copyright Treaty confirms that the storage of a work in an electronic memory is a form of reproduction.

Each time that I review the directory "C:\WINDOWS\Temporary Internet Files" of my PC (containing reproductions of hundred of works made automatically by the MS-Explorer to easy my Internet navigation) I get worry: in my country (as in many others) the reproduction of a protected literary or artistic work without authorization of its author is a crime! (Look at the same directory in your own PC and worry yourself!).

I think that the time is coming to legally recognize the peculiarities of Internet and to produce principles adequate to this reality. If we accept that the transient or permanent copies necessaries to use Internet in the present status of the arts are reproductions in the Berne Convention sense, shall be compulsory to introduce in the national legislation express exceptions allowing these acts, as permitted by section 9,2 of Berne Convention. Otherwise in countries as mine, Argentina, where it does not exist the "fair dealing exception" all Internet users will continue to be "criminals" applying the Law as is. I can not imagine anything more harmful to the Copyright Law that inflexible principles without real application.

Antonio Mille

ESTUDIO MILLE Bartolome Mitre 226
(1036) Buenos Aires, Argentina
Tel. 54 + 11 + 4331 8191
Fax 54 + 11 + 4334 0203
antonio[_at_]mille.com.ar
http://www.reis.com.ar/estudiomille Received on Mon Mar 13 2000 - 17:46:58 GMT