With the explosion of internet writing, protecting intellectual property rights is at once more difficult and more necessary than ever before. Once intellectual property is available on the net by self-publication or through any license arrangement, it is easy prey for unscrupulous infringers, unschooled admirers, and anyone else not savvy to, or respectful of, copyright. Copyright holders must be diligent in detecting and redressing copyright violations if they wish to protect their legal rights and income stream.
Any author who creates written work is entitled to claim copyright protection. It is possible, but not required, to lay claim to copyright through filings with authorities. Many book manuscript authors invoke this protection before contacting publishers. Yet, in the fast-paced world of internet publishing, this is not a practical alternative for many authors, especially those writing plentiful articles each week for a variety of online sources.
So how does the internet writer protect his copyright?
Identifying Copyright Infringement
Copyright infringement is any unauthorized publication of a copyright holder’s intellectual property. For a writer, this intellectual property is his or her writing. As copyright holder, the creator of intellectual property may sell copyright to parties that publish his or her work or may license the use of the work and maintain the copyright. Whenever a work is contracted for publication, it is important for the creator to understand what rights are being sold and what, if any, maintained.
The holder of the copyright is the only party who has a cause of action for copyright infringement.
However, a party with use rights may also have acquired the right to further license or syndicate the licensed work even though he is not the copyright holder.
What does this mean when it comes to copyright infringement? The mere fact that intellectual property is published by a third party without the copyright holder’s permission does not necessarily mean copyright infringement has occurred. That publication is only copyright infringement if it was not authorized by anyone who had the legal power to authorize it.
How Copyright Infringement Happens
Copyright infringement happens when a party who does not have the right to publish a work publishes it. Whether or not the unauthorized publication attributes the work to the original author, or to a source where it was published, does not have any bearing on whether or not copyright was infringed. The lack of permission to publish is the primary criterion for determining whether infringement has occurred.
Not all unauthorized use of a writer’s work is copyright infringement however. Notably, the common practice of including a link to published article on the internet is not infringement. While it may be good form to ask permission to include a link to a writer’s work, it is not a legal requirement to do so.
Another common use that does not require copyright holder permission is the summary that references the authorized publication. The quotation of a small portion of text for critique or analysis likewise is a use that does not require copyright holder permission and does not constitute copyright infringement.
Therefore when examining potential copyright infringement, the copyright holder must take into account the amount of the work that was republished and the purpose for which it was published.
Steps to Minimize the Risk of Copyright Infringement
There are several steps owners of intellectual property can take to minimize the risk of copyright infringement.
Initially, the most important step an owner of intellectual property can take to protect his or her copyright is to ensure the work is identified as copyrighted material. This puts the world on notice that the work is not in the public domain but subject to copyright.
When publishing on the internet, a writer can set up Google alerts. The Google site contains instructions for setting up these alerts. The most common alert terms are the writer’s name or the writer’s individual article titles. Once the alerts are established, the writer is notified by Google each time a search result turns up the specified alert term. This will alert the writer to copies of his articles published on the internet.
In addition to setting up Google alerts, internet writers can and should periodically perform article title searches and optimized name searches (an optimized search is one with the search term in quotations.) The name search will reveal infringed content if the infringer retains the writer’s name as author of the article. The title search will reveal the use of the title anywhere on the web. If the title is found, the writer can investigate whether the title use is coincidence or infringement.
Writers with access to Copyscape software can feed article text into Copyscape and learn whether any or all of that text appears elsewhere on the web and where. When entire articles or significant portions of articles are identified and neither the writer nor any of his licensees authorized that publication, he will know he is dealing with copyright infringement.
These tools together will help internet writers uncover most instances of online copyright infringement.
Redressing Copyright Infringement
Once a writer uncovers potential copyright infringement, what can he do to redress it?
Step one: the writer should always double check to be sure that he retained the copyright to the article in question. Step two: he should double check that he did not sell any license on the work that might have authorized use in question. If there is a licensed user who had the right to resell the work, he will need to check with that user in order to determine whether or not his article copyright has been infringed.
When a writer determines that copyright infringement did occur, he needs to decide what remedy he or she is seeking.
In some cases, bloggers infringe copyrights out of laziness or ignorance. If all the copyright holder wants is for them to remove the infringed content, a simple “cease and desist” letter may do the trick. First he will need to identify the site owner. If the owner is not identifiable from the site itself, he or she should be identified in the WHOIS public database with which web sites are required to register.
In the cease and desist letter, the copyright holder notifies the site owner of his status as copyright holder and states that the article was posted on the site without permission. The copyright holder demands that the site owner cease and desist from violating his copyright by removing the article immediately. After sending a cease and desist letter, the copyright holder should check to ensure that the copyrighted material has actually been removed from the site.
What if the copyright holder is not satisfied with simply asking an infringer to remove the copyrighted material from the site? The copyright holder may feel entitled to compensation for the use of his work. Perhaps the site owner has been deriving revenue from the article or perhaps the site owner is a habitual copyright violator. Or the site owner’s stature may indicate that the site owner knew or should have known that he was infringing copyright when posting the article without authorization. In this case, instead of sending a cease and desist letter, the copyright holder may want to send a demand letter accompanied by an invoice, demanding the fair market value he would have charged had the site owner asked to buy the article.
A demand letter seeking redress of copyright infringement should be regarded as a business letter- unemotional, to the point, and not accusatory. Simply state the facts and the remedy expected. For example:
Dear Infringer,
On February 10, 2008, I discovered my copyrighted intellectual property, Dogs Are the Best Pets on Earth, published on your site at:[link]. Your use of this copyrighted intellectual property without my permission infringes my copyright.
As a writer, I make a living by selling the rights to use my copyrighted intellectual property. Enclosed please find an invoice for $[fair market value] for the use of my copyrighted intellectual property on your website, payable immediately. Please note that this grants you a license to use this article on your website but does not transfer copyright nor does it authorize you to sell, modify or use the article elsewhere. Moreover, this license requires you to publish my name as the article author and notify your readers that the article is subject to my copyright.
Thank you for prompt payment of this invoice. If you wish to publish my work in the future, please contact me to arrange usage terms and payment prior to publication.
Sincerely,
Infringed Author
Maintaining Adequate Records
Because a writer has no idea upon discovering potential infringement how far he may need to go to obtain redress, the writer should maintain copies of all information pertinent to the infringement including the link where the infringement occurred, a copy of the article on the infringing site, and all communication to and from the copyright infringer.
Enforcing Remedies for Copyright Violations
In the event that a copyright violator refuses to remove infringing material from a website or pay an invoice, the copyright holder faces the difficult decision whether or not to file a lawsuit to enforce his or her intellectual property rights.
If the copyright holder has not already sent the infringer a cease and desist letter (for example, when he chose a demand letter instead), he should send one prior to filing suit. This simple letter should identify the copyright holder and the article, state who the infringer is, specify how he infringed the copyright, and specifically request that the infringer remove the copyrighted intellectual property from his website. To preserve legal rights to recompense for use of the work and possible punitive damages, the copyright holder may want to specify that he makes the demand for removal of the article from the site without regard to, and without diminishing, any other legal or moral rights the copyright holder may have to redress.
Whether the infringer removes the copyrighted material or not, it may be prudent to contact Google security of the copyright violation and request removal of any reference to the article by that source in its search results. Removing the infringer’s page containing the article from the Google search results will minimize its distribution and maximize the chances that search engine users will instead find links to lawful copies of the article.
These tips will empower writers in protecting their intellectual property.