Lawyers sending threat letters sometimes claim that the recipient would violate the firm’s copyright by posting it online. This post is about Public Citizen’s response to one dumb threat letter and its decision to post the letter online despite the copyright claim.
Public Citizen’s response can be found here.
Interesting notes:
- Words like “scam” and “nightmare” are statement of rhetorical opinion that do not support a claim for defamation. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987).
- The letter ends with “Please be aware that this letter is copyrighted by our law firm, and you are not authorized to republish this in any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action”. Such a posting would be fair use.
Note: This is a US case and thus may or may not applicable to Singapore laws.
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BASIC INFORMATION ON THE COPYRIGHT ACT
Brief History of Copyright in Singapore
1911 – Singapore used the United Kingdom’s Imperial Copyright Act 1911
1987 – Singapore’s own Copyright Act 1987 came into effect on 10th April 1987
1988 – Revised to Copyright Act (Chapter 63) Revised Edition 1988
1998 – Amended to the Copyright (Amended) Act 1998
What is Copyright?
Copyright is a law that protects all original works created. Copyright is not just a right that allows others to copy original work. It is also right to stop others from copying original pieces of work. Copyright, unlike what its singular name might suggest, is a collection of more than one right. The holder or owner of copyright has:
- the right to copy or reproduce his or her own original works
- the right to adapt or derive based on his or her original copyright works e.g. books into plays
- the right to distribute copies of his or her original works
- the right to perform his or her original work publicly
- the right to display his or her original work publicly
Unauthorised use or copying of any original piece of work will result in what is termed “copyright infringement.”
What does Copyright protect?
Copyright protects the “expressed forms” of original works. Ideas are not protected by copyright. Only after the “idea” is translated or made into material or tangible form, does it enjoy copyright protection. For example, some of the “expressed forms” that copyright protects are:
Literary works - newspapers, books, magazines, books, poems, fonts, maps, manuals, textbooks, assessment books and many printed materials
Artistic works - paintings, drawings, carvings, sculptures, pictures, photographs and other artistic materials
Musical works – compositions, soundtracks, songs and other musical works
Others – movies, films, videos, compact discs, TV programmes, radio shows, advertisements, plays, scripts, posters etc.
As a general rule of thumb, any original piece of work that is printed, recorded or stored on a medium regardless of what format it is recorded on, is protected by copyright. This also includes:
Works on Digital Formats – computer programmes, websites, data on floppy discs, CD-roms or hard disc and other digital works
Speeches – once it is in printed form on paper or recorded on audio or video tape or other media even on the digital format
The list of works that can be copyrighted will grow longer as new technologies and new forms of communication arise. It is thus, better to err on the side of caution and assume that all original works are copyrighted until proven otherwise.
BEFORE PUBLISHING YOUR NEWSLETTER
Use of Pirated Software
It is an offence to purchase and own pirated software. Use of pirated software even though you did not purchase it also constitutes an offence. As almost all newsletters rely on computers to write, design and edit, it would be a good start not to use any pirated software when producing your newsletter.
Use of Facts
Like in the case of ideas, copyright does not protect facts. Copyright is not infringed if facts e.g. statistics are used as long as an attempt has been made not to blatantly copy the exact phasing and the original use of the facts. It is an infringement to copy someone else’s factual interpretation and pass it off as your own.
Allowance for Personal Research and Private Study
The Copyright Law allows individuals to copy a small portion of copyright materials for the purpose of personal research and private study. The Law allows the following amounts to be copied (including photocopying or storage on computer discs):
From a periodical – One copy of the entire or part of an article per issue; One copy of the entire or part of two or more articles of the same topic per issue
From books with – 10 pages or more; a total of not more than 10% of the total number of pages per book; a chapter in a book, even if it has more than 10% of the total number of pages in a book
It is important to remember that the above stated statements are meant for personal or private study and not for publishing.
The Copyright Notice, ©
Some original works carry the internationally accepted copyright notice, © to make a “black and white” statement of copyright protection and to indicate who owns the copyright. The absence of this copyright notice does not mean the work is not protected. Copyright protection comes into effect the moment you translate your ideas into an “expressed form”.
Duration of Copyright
Copyright does protect an author even after he or she has passed away. It however does not protect the author’s works forever. The following table is a list of works and their duration of copyrights:
Literary, musical, artistic works, excluding pictures, whether published or unpublished – Life of author plus 50 years
Photographs taken on and after 10th April 1987 – 50 years after first publication, otherwise indefinite
Photographs taken before 10th April 1987 – 50 years after end of calendar year which the picture was taken
Anonymous works – 50 years after first publication
Published editions published on or after 10th April 1987 – 25 years after first publication
Works, which copyright duration have expired become part of the “public domain”, meaning anyone can use it freely. However, as Singapore does not have a registering body where one can check if copyright duration has expired, it is advised that editorial team members practise the next guideline following this as a precautionary safeguard.
Always Seek Permission First from the Right Copyright Holder
If you intend to publish copyrighted materials in your newsletter, always ask for permission first from the copyright holder. Permission to use an original work is important as it is recognised and upheld by the law as a legal authorisation that allows you to copy as instructed by the copyright holder. The rule also applies if you want to use material from another media example from an internet website in your newsletter.
The owners’ particulars are generally stated on the inside covers of books or on labels on other copyrighted materials if they are organisations or companies. In the event that the owner is uncontactable or unreachable, it is best not to publish such copyrighted material.
Ensure that you have asked the right copyright holder. Copyright can be “bought”, “transferred” and “willed to heirs and beneficiaries”. Copyright of works done by an author while employed full-time, part-time or free-lance by an organisation can belong to that organisation (unless otherwise stated in a prior written contractual agreement).
Use of Pictures and the Internet
The internet, though often touted to be free has numerous sites which are copyrighted. Similarly, pictures and photographs can be copyrighted. It is both unlawful and unethical not to use the same procedure of asking permission for pictures and internet websites as you would for a book.
It is important to note that downloading a webpage without permission is considered copying and is an infringement, unless the creator/s of the webpage has authorised it.
Using a copyrighted picture or photograph in your newsletter even after you have redesigned it is still considered a copyright infringement.
WHEN PUBLISHING YOUR NEWSLETTER
Always Give Sufficient Acknowledgement
Sufficient acknowledgement is generally defined as naming a work by its title and its author. Sometimes, a short description follows the title and author’s name. For example, when using quotations, the author’s name, book title (if any) or event and a statement telling us the context the quote was made in is the usual practice.
It is also a sound practice to always ensure sufficient acknowledgement is given. Acknowledgement can be given within the main article itself, or separately as a footnote. Please note that giving sufficient acknowledgement does not mean you can copy that work freely, always ask for permission from the right copyright holder/s first.
Fair Dealing
Fair dealing is a provision in the Copyright Law that defines the situations whereby one would not need to obtain permission from a copyright owner for use in publications.
Acts that are not infringements of copyright material under fair dealing or fair use include:
when the purpose is for research or study in an approved educational institution
for the purpose of criticism or review e.g. book or movie reviews
for the purpose of reporting current events by journalists in an approved media organisation
It is important to note that sufficient acknowledgement (see above) is compulsory when using copyrighted material under fair dealing.
When Accepting and Using Contributions
For the use of articles submitted by contributors, always ask if the works have been published. If yes, when and where, and you should perform a check to see if copyright still belongs to the contributor.
As pointed out earlier, copyright can be “sold” or “bought”. Works done by the contributor under previous employment belongs to the organisation that employed him or her. Some publishers demand that free-lancers sign away their copyrights to the organisation upon payment. If copyright no longer belongs to the contributor, it becomes necessary to seek permission for use with the new copyright holder/s. The contributor however, may have entered into a written contractual agreement to allow the publishing organisation a one-time publication right. This means that copyright is still retained by the contributor.
Always however, discuss the terms of payment, if any before publishing the contributor’s work.
If a check fails to give you a clear picture of copyright ownership, you may wish to draft an indemnity form, which protects you and transfer the onus of proving copyright ownership to the contributor. You are advised to seek legal advice as the drafting of an indemnity is beyond the scope of this guide.
Implied Authorisation
Permission to use a copyrighted material can sometimes be implied. For example, contributors responding to your question, feedback or forum pages in your newsletter grant you the implied right to publish them publicly.
AFTER PUBLISHING YOUR NEWSLETTER
If Your Copyright Has Been Infringed
Copyright infringement can be both a civil and criminal act. Though it is more the former than the latter if your newsletter copyright has been infringed. This means you are largely responsible for protecting your own copyright. The government is more likely to enforce copyright infringement occurring on a massive scale as a criminal liability, like in software piracy cases.
In Singapore, if your newsletter copyright have been infringed, you can contact:
INTELLECTUAL PROPERTY OF SINGAPORE
51 BRAS BASAH ROAD
#04-01 PLAZA BY THE PARK
SINGAPORE 189554
http://www.gov.sg/minlaw/copyright/copyrigh.html
The Copyright Tribunal is a civil court that derives its powers under Part VII of the Copyright Act, Chapter 63. The Tribunal serves as a mediator in most copyright disputes. Copyright disputes can be settled out of court with parties representing themselves without the need for lawyers.
If You Have Infringed Copyright
Unfortunately, ignorance is no excuse when it comes to the Copyright Act. It is your duty to be aware of Singapore’s copyright laws. If you have unknowingly publish a copyrighted work in your newsletter, innocence is a mitigating factor that argues in your favour but it is unlikely to be a reliable defence to clear you of the copyright infringement.
The copyright holder, upon proving copyright infringement can sue you through legal means to:
- seek compensation for loss of possible revenues
- seek an injunction to stop the distribution of your infringing copies
- ask for a share of the profits, if any
- or all of the above
Note from the Author. These guidelines are meant to help all editorial personnel who are engaging or would like to engage in in-house publishing. It seeks to promote a high standard of industry practices that will not compromise copyright integrity through self-education. As this guide is intended for those who have not had the benefit of legal training in copyright, legal jargon has been kept to a minimal. Users of this guide must note that the statements contained within are not laws but based on laws. Any legal complications experienced should be resolved in the Singapore courts and not by using statements contained within this guide. This set of guidelines was written by the author while pursuing his part-time MA (Mass Comm) at the School of Communication Studies, Nanyang Technological University (NTU).
The author would like to thank Associate Professor Ang Peng Hwa, Vice-Dean of the School of Communications Studies, NTU for his valuable inputs and encouragement.
Original Article by Christopher Pang Copyright © 7 May 1999. Republish here with permission.
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