On the importance of giving credit

We all know the importance of giving someone credit when we use their work. Attributing the original creator of materials or products is polite, intellectually honest, and acknowledges the way we are all influenced by one another.

Shoulders of giants

But the intersection between giving credit and copyright law can be a little complex. Today I want to tell you two important things about the law in this area:

(1) Plagiarism and copyright infringement are not the same thing.

There is a misunderstanding among some people, commonly expressed as: “It’s not copyright infringement if I give credit.” Unfortunately, this statement confuses infringement with plagiarism.

Plagiarism is the action or practice of taking someone else’s work or idea and passing it off as your own. Plagiarism is avoided by acknowledging the other person’s contribution – i.e. by giving them attribution or credit.

But attribution is not enough to avoid copyright infringement. To avoid breaching copyright law you must also:

  • Have the copyright owner’s permission to use their work; or
  • Ensure your use falls under a legal exception to infringement.

SIDENOTE: I’ve observed that many creators seem more upset when their work is used without attribution than when it is used without permission. If you are one of these creators, then you might want to consider applying a Creative Commons licence to your work, which gives permission in advance on the condition that the user gives you proper attribution.

(2) Moral rights require attribution.

Here’s the complicated bit: there are actually two sets of rights tied up in copyright. In a previous post, I set out the rights which are most commonly implicated when people talk about “copyright rights”. These include the copyright owner’s exclusive rights of reproduction (copying), publication, and making available online. These rights are sometimes called the “economic rights” because they are the rights that a copyright owner can licence or transfer in exchange for payment.

For literary, musical, artistic and dramatic works, and for cinematograph films (including video blogs), there are an additional set of rights called moral rights. Moral rights last for the same length of time as the economic rights, but, importantly, they belong to the individual creator of the work and they stay with the creator even if the creator transfers ownership of the economic rights to someone else. I repeat: a creator always has her moral rights even if the rest of the copyright belongs to someone else.

Capture

The moral rights include the right to be attributed as the creator or author of the work, and the right not to have the work falsely attributed, such as attributed to someone else. (*I’ll discuss the moral right of integrity in another post). A creator whose moral rights are infringed may seek remedies including a declaration that their moral rights have been infringed, a public apology, removal of the false attribution, an order that the person cease using the creator’s work, or even monetary damages where appropriate.

Moral rights are the part of copyright that preserves creators’ reputations and ensures that creators credited for their work.

So there you have it – the legal reason for giving credit where credit is due!

Legal exceptions to copyright infringement

Hello dear readers! I am back! And damn does it feel good. As I mentioned in my last post, for the last few months I’ve been writing my PhD thesis. It’s been a crazy, productive, stressful time. If I could pick one word to describe those months, it would be: INTENSE. Intense focus, intense concentration, strict ‘hibernation’ and pulling back from the outside world. My days and my pages have been full to the brim with legal analysis. It was an absolutely necessary process for me, but I’m so happy (happy, happy!) to be moving out of it. To bring more spaciousness into my life and to return to doing things that I love, like writing this blog.

So I thought it would be appropriate to make my returning post something fun. “Legal exceptions to copyright infringement” may not sound very fun to you, but it actually gives me the chance to share some funny videos with you. And that’s always a good thing.

So if you cast your mind back weeks (and weeks and weeks), you might remember that I said it was an infringement of copyright to do one of the exclusive copyright acts without permission from the copyright owner. Well there is another situation in which you can do a copyright act without permission and still not infringe copyright. That is where the act falls under one of the legal exceptions to infringement. Basically, where the law says it’s okay to do the act regardless of what the copyright owner says.

In Australia, these are called the fair dealing exceptions. They say that you can make a fair dealing with a work if it’s for one of the following purposes:

  •  Research or study (this must be your own research or study, not to help or teach someone else);
  • Reporting the news;
  • Parody or satire;
  • Criticism or review.

Frequent questions and misconceptions:

(1) Can’t I always just use 10% of a work?

No. The law simply says that the dealing (i.e. the use) must be fair. What is fair will depend on the type of work and the circumstance of the use. For example, it will usually be fair to reproduce an entire artistic work (such as a photograph) for one of the listed purposes, because it would be weird to reproduce only half a picture. But it will not usually be fair to reproduce an entire literary or musical work. Likewise, if you were reviewing a book or a movie, it would probably be fair to reproduce excerpts from that book or movie to demonstrate a point you are making in your review – and those excerpts could be more or less than 10% depending on what you are arguing.

The misconception about ‘the 10% rule’ comes from the section in the copyright legislation that deals with fair dealing for research or study. This is the only section that provides a guide for what might be considered “fair”. It says that for research or study, it will usually be fair to copy 10% of a literary, dramatic or musical work, or one chapter of a book. This guide only applies to research and study, however, not to the other exceptions.

(2) Is fair dealing the same as fair use?

No. Fair use is an American concept. In the USA, a person may make use of a copyright work without permission if that use is “fair”. The Americans apply a general test to determine whether a use is fair, taking into account certain considerations such as whether the use is commercial. In Australia, we do not have such a broad approach to fairness. For users here, not only must their use be fair, but it must be for one of the listed purposes. If the use falls outside of one of the listed purposes then it is not excused under law.

(3) What is ‘parody or satire’?

The Oxford English Dictionary defines ‘parody’ as “an imitation of the style of a particular writer, artist or genre with deliberate exaggeration for comic effect”. It defines ‘satire’ as “the use of humour, irony, exaggeration or ridicule to expose and criticise people’s stupidity or vices, particularly in the context of contemporary politics and other topical issues”. Thus, parody is inward-looking: using a copyright work to ridicule the work itself or its creator. Satire is outward-looking: using a copyright work to ridicule some aspect of society.

The fair dealing for parody or satire is an important legal exception, as is the exception for criticism or review. These exceptions ensure that people can criticise, comment upon, poke fun at and express their opinion about creative works without the fear that this will be stifled by a copyright owner using the law to silence them. In a democratic civil society, free and open expression and debate is important to ensure that all viewpoints are heard.

Now for the fun bit – here are some of my favourite parodies and satirical clips online. Know any others that make you laugh? Share them in the comments!   

(See more parodies here, here and here)