Copyright, patents and trademarks
What are they, and why should you care?
The general level of understanding of the meaning of copyright, patents and trademarks varies widely. On the one hand, I sometimes meet a belief that, once copyright is claimed for an item, this automatically prevents all unauthorized forms of copying, reproduction and distribution (or rather, makes them illegal, which is a substantially different thing). On the other hand, some believe that every information that is publicly available, e.g. on the Internet, is free to copy, redistribute and use without restrictions. Both beliefs are very far from the truth.
I am no expert of copyright and related laws, but several times I had reason to look up and discuss information on these things, both as a creator and as a consumer of information. On this page, I try to explain, in simple terms, what copyright, patents and trademarks are meant to protect. Laws vary among countries, so what applies in one country does not necessarily hold in another. See for example the discussion on WIHT on copyright and privacy concerns of photographic images in the United States, and the explanation of differences among copyright, trademarks and patents in a US context at Lawmart.com. If you need more detailed information, you can search Amazon.com or your local library for detailed books on these subjects. The Wikipedia page on copyright in Sweden (in Swedish) also discusses how the different modern interpretations of copyright law originated as an amalgamation of the Roman law and the (often conflicting) traditions of copyright in France, the UK and US.
At the international level, copyright is fixed by the Berne convention of 1886. Some countries, however, choose to ignore parts of this convention (e.g., see below).
Copyright does not need to be applied for at an office, nor registered with an authority, nor approved by an authority, in order to protect an item. It costs nothing to claim copyright for an item, and this is usually done by adding a note on or near the item that says "Copyright 2014 by xxx yyy". Individuals as well as companies can claim copyright. Sometimes, the statements "All rights reserved" is added, to make it clear that the owner is not implicitly giving away any of the rights granted by copyright. Nothing more than this is required. There is no central registry where all copyrighted items are indexed. However, note that in the US, and for copyrighted works originating from the US, since 1978 a completed copyright registration is required before statutory damages can be issued. In other words, you need to spend money first, in order to prove that you are the real copyright owner before you can claim, and be awarded, damages. Other countries may have an equivalent legislation.
The simplest way to make sure whether an item is copyrighted is to check for a copyright notice on or near the item. For complex items, like a web site or a book, there is usually just one copyright notice or page. In this case, it should be assumed that the whole web site or book are copyrighted. If you don't see a copyright notice or a statement saying that the materials are in the public domain, it is probably better to contact the website owner or book publisher and ask, before assuming that the materials are free to re-use. On the other hand, if the materials are identified as placed in the public domain, no copyright can be claimed, either by the original creators or by subsequent users. Open-source software licenses often add specific conditions on the re-use and re-licensing of program source code.
Copyright costs nothing to claim, but is not cost-free to enforce. If you wish to claim damages against a violator of copyright of one of your items, you will need to pay the legal costs. In general, the best course of action against a copyright violator is to contact him/her and explain your position without using offensive language or threats. In most cases, any threats would be completely ineffective, because (1) the copyright violator is normally well outside your reach, and (2) threatening him/her will automatically make you an enemy, regardless of whether you are right or wrong in your claim. If you insult or threaten, the typical response you can expect is either insults and threats in return, or to be simply ignored. The second line of defense, for materials published on the Internet, is contacting the webmaster or ISP of the offender. Sometimes they will try to cooperate, but you need to have a very strong evidence to start with. Don't expect an ISP to side with you and against one of their customers, unless you have strong and unquestionable evidence. Regardless of evidence, the ISP may simply tell you to settle your quarrel directly with the website owner, so you are back to square one. Legal action is well down the list of priorities you should consider, unless the copyright violation involves large economic interests.
Copyright is not meant to make all forms of copying illegal. It is also not meant to protect all sorts of things from copying. The main limitation of copyright is that it only protects material work of a creative nature, and only in its original form. For instance, a drawing, a photograph or a text can be protected by copyright if their creation involves a significant degree of creativity. Non-creative work, like a table of prime numbers or a spectral diagram of sunlight, is not protected by copyright. Claiming copyright for these non-creative items has no legal value, and others have no obligation to respect such a copyright claim. However, the typographic style of the table of prime numbers, or the specific graphic layout of the illustration of the solar spectrum, may be copyrighted if it is possible to prove that this part of the work involves a significant creativity, For example, to copyright this type of work where only the presentation is creative, it must be clear that:
it was not produced by using a standard software template (e.g., the Normal template of Microsoft Word),
it is not based on well-known aesthetic composition rules, like the rule-of-thirds and the golden ratio,
it is not the only possible way to present the same data (e.g., there aren't many ways to illustrate a geometric circle, so a picture of a geometric circle is very unlikely to be creative enough to deserve protection under copyright laws).
In brief, an immaterial creative work like an idea, a concept, a mathematical formula or a chemical formula cannot be protected by copyright.
Depending on the country, there may be numerous exceptions to the restrictions imposed by copyright law. For instance, in some countries it is legal to make copies of copyrighted works for personal use and for scholarly research.
Some countries allow the printing of cheaply produced copies of foreign copyrighted books for selling within the national market (these copies are usually marked as "Not for export" but there are no export checks on individual copies). As an example, for decades the Philippines has been doing this on a grand scale and with the support of national laws, originally introduced to make school textbooks affordable, but subsequently applied to any and all book types (for reasons explained at the end of the next sentence). Many best-selling books are freely printed and sold on the national Philippines market, with the original copyright owners receiving no, or token, compensation and the Philippines government earning significant taxes on these domestic copies. Taiwan is another example.
In the European Union, linking to copyrighted material from another web site is legal, even when the linking makes it appear that the copyrighted material is part of the linking site. For example, site A hosts a copyrighted picture of which it owns the copyright, and makes the picture publicly available to all visitors of site A. Site B publishes an article that appears to contain the same picture and makes it publicly available to its visitors worldwide, but site B does not contain a copy of the picture, and only cross-links to the picture hosted on site A. The owner of site B did not ask permission by the owner of site A to cross-link to the picture on site A. By doing this, site B is not violating the copyright of site A. If site B hosts a copy of the copyrighted picture, on the other hand, this would be a copyright violation.
If site A places the copyrighted material behind a paywall, and site B by linking to the image on site A bypasses the paywall and makes the picture publicly available, then site B is in violation of EU copyright law. In other countries, this behavior is not necessarily a copyright violation.
The limits of copyright law have been stretched to the extreme by the entertainment industry. A movie or book character, for instance, is protected by the copyright of the movie or book. Even a character that only partially resembles a copyrighted one might be regarded as a violation of copyright, given the extreme propensity for litigation displayed by companies in the entertainment industry and the extreme amounts of money they are willing to spend on legal fees. You are guaranteed to run into trouble if you write a Harry Potter novel and try to make money out of it (some, as far as in India, did try, and were quickly forced to backtrack). You are entirely within the law, instead, if you give your Harry Potter novel away for free or publish it on a fanzine site.
You are not entirely safe, instead, if you write a commercially distributed novel about a young person who attends a wizardry school, even if you use a different name, story setting and sex, unless you can prove that your novel antedates the whole Harry Potter estate. If this is not the case, large teams of lawyers will examine every word of this novel and tear its story apart to identify any similarity with copyrighted work that might help to convince a judge to rule in their favor.
Quite a few well-made Star Trek movies (casting the original characters and even some of the original actors) have been produced by advanced amateurs with significant budgets contributed by fans, and made available for free. Paramount Pictures, owner of the Star Trek estate, cannot do a thing about that. Although there is quite some money involved in these activities, it is not raised by selling anything, and this is what makes it possible.
Over the years, a few people have built copies of the Batmobile from the Batman TV series and movies. A few of them did run into legal trouble, not for building the copies but because they used them for commercial purposes. In addition, in most countries it is not permitted to drive a home-built car on a public street.
On the other hand, writing a commercial recension (positive or otherwise) of a book or movie is freely allowed. In Western countries, there is a long tradition of publishing recensions in the news, which is regarded as a part of basic freedom of expression. Publishing summaries of movie plots is also a part of this freedom.
In the real world (i.e., outside the entertainment industry and its profit-driven legal system), the original meaning of copyright is normally accepted, and discussing in your own words an idea you learned from a copyrighted book or article is self–evidently not a violation of copyright. Obviously different wordings and meanings are typically recognized as original (although I am sure that the entertainment industry would argue that "Tom had a green parrot" is sufficiently similar to "Mary had a little lamb" to warrant a trial for copyright violation).
In brief, copyright cannot protect an idea, a concept, a formula, a machine or a technical process. It only protects their original material description (words, images, sounds or movies), and only as long as they involve a sufficient amount of creativity and originality. A copyrighted sentence, for instance, does not mean that each individual word in the sentence is still protected by the same copyright when re-used in a different sentence.
Copyright is often applied to photographs. In general, it is easier to prove that a photograph is a creative work than, for instance, a paragraph of text. It is often not the case, however, that the photographer who shot an image actually owns its copyright. I am aware of three important limitations in this respect:
- If you shot the image as part of paid employment (e.g., as a photographer employed by a newspaper), the copyright of the image belongs to your employer unless stated otherwise in the employment contract.
- If you publish a picture in an article on a scientific journal, the copyright of the picture must be transferred to the journal publisher as a pre-condition for publication. Therefore, if you were contracted by a scientist to prepare illustrations for publication, you must be aware that, most likely, you are expected to permanently relinquish the copyright to any picture that will be published.
Factor this into your fee.
- A growing number of museums and public scientific institutions allow you to take pictures of items stored in their collections only if you sign an agreement saying that they retain the copyright on all your pictures of these items. This is usually accompanied by a permission to let you use the images for non-profit publication (almost all science publishing falls into this category). This, in turn, means that both the institution and the journal publisher claim to own the exclusive copyright to the same image, which is obviously impossible but no one seems to care about it.
I am unsure of the reason for such a restrictive access to materials in the care of these institutions. Most likely, they grossly overestimate the profits involved in the publication of images of items in their care. This is especially true of natural history specimens like shells or rock samples, which are not man-made and therefore cannot possibly be protected by copyright. A cause of these policies may be that these institutions are run on such miserable budgets that they are frantic to claim any thinkable source of income, no matter how small. An obvious factor that makes these policies questionable is that these establishments are financed with public money for the purpose of making these items accessible to the public. Restricting the publication of their pictures (or claiming a copyright fee for their publication, which achieves the same result) clearly makes the materials in their care less accessible to the public.
The publication of photographs, as well as the act of photographing, can be restricted by many other laws than copyright. In some countries, people who appear in a photograph may have a right to forbid the publication of the photograph (e.g., on the Internet) in order to protect their privacy. They cannot object, instead, if they have signed a model release and this document is in the possession of the photographer. Some time ago, a famous photographer was sued by a person who happened to walk on a street in the US where the photographer was shooting, and ended up in a published picture (it became evident that the accidental subject was after the photographer's money, but this did not make any legal difference).
A legal right to forbid the publication of a picture does not automatically imply a right to forbid the photographer to take a picture, especially if the subject is in a public place - different laws may apply to this case.
A legal right to forbid the publication of a picture does not imply that, as a photographer, you are not allowed to keep the picture in your archive, or that you do not own the picture. You are still the legal owner of the picture, and within the confines of your private life you can do as you please with the picture.
- In Sweden, where I live, as long as you are on public property you can photograph adults in a public setting, and that's it. There can be no expectation of privacy in a public place. Children may be an exception. Publication of pictures of certain persons (e,g, political refugees) is a bit sensitive, since Turkey, Russia and a few other countries appear to be sending their assassins around the world to murder political opponents they do not feel comfortable with.
- In the UK, if you photograph in a public place, you can be arrested and searched, and your pictures can be erased by any police officer who - basically - doesn't like you, with the support of antiterrorism laws so broad that they can mean anything. Dozens of amateur photographers have reported being harassed in this way by the police, but the practice is still continuing in spite of government's promises to "do something" about it. (Free tip: UK police seem to believe that terrorists use large, heavy and expensive cameras, so if you use a pocket camera for your street photography you should be safer.)
- In North Korea and a significant number of other Third World countries, basic freedoms often depend on the personal interpretation by police authorities, magistrates and politicians, and you can get into serious trouble by "walking with a camera" or "walking while foreigner".
A patent can protect a machine or technical process (not an idea or a concept). Patents must be applied and paid for, and are valid for a limited time and a limited geographic area. Patent applications can be rejected if too similar to a previous patent, or if the design/process is already well known among specialists of the field, or if the idea as presented in the patent cannot possibly work as described. This is why it takes a very long time to approve a patent. Once a patent is granted, it can still be declared invalid afterwards, for a number of reasons and in a number of ways, which include legal challenges by competitors, or by defendants in a patent-infringement trial.
Even a valid patent cannot prevent a person from implementing and using the patented machine or process for personal use. You are welcome to build an exact copy of a Nikon camera or Ferrari car in your backyard, as long as you don't use them, directly or indirectly for profit. In the case of the Nikon camera copy, you cannot use it for earning money as a professional photographer. In the case of the Ferrari copy, you cannot earn money by renting or selling it, and addditionally you might not be allowed to drive it on a public road (the latter because of different laws than copyright and patents). On the other hand, the patent holder cannot sue you just for copying their patented items and publicly exhibiting the copied items or their pictures for free. You might get into trouble if you claim that the items are genuine and not a copy.
The right to experiment on a patented technology is a fundamental part of the patent system. Once a patent is published, anyone can build the patented device or implement the patented process for the purposes of:
Verifying that the the patented technology really works as described in the patent (if it demonstrably does not, the patent can be declared as invalid), and
Developing alternative technologies and improvements that achieve the same goals by different means, not covered by the patent in question (a patent cannot claim a blanket coverage of its goals, but only of the explicitly described means to achieve the goals).
Patents are not trade secrets. On the contrary, the contents of a patent document must be publicly available. The patent documents can be freely distributed, and are not protected by copyright or any disclosure restriction. Very large numbers of patent documents are freely available on the Internet. In other words, if you want to keep something secret, you cannot patent it.
A registered trademark can protect a company or product name, logo or other simple, well-recognizable item from commercial use, but these names cannot be copyrighted and anyone can use them (except to market a make-believe copy of the real item). For instance, "Coca-Cola" is a trademark, and therefore cannot be copyrighted. I can write "Coca-Cola" on this site as often as I want to, or publish a picture that includes a Coca-Cola can, as long as I am not trying to sell a fake Coca-Cola. Registering a trademark requires the registration of the item with the proper authorities (which can deny the trademark if judged to be inadmissible) and the payment of fees.
Company names are a special case, and are subjected to special rules. For instance, in most countries nobody can prevent you from using your family name in your company name, regardless of whether the name is already used for someone else's company. At least in some countries, two companies may be allowed to have exactly the same name, as long as they operate in different business areas that cannot be confused (e.g., a shoe factory and a biomedical company).
In the specific case of this web site, the above discussion means that you need my permission to legally republish any significant length of text, like half a page, from my site. You can, however, reproduce shorter amounts of text, as long as you clearly identify the source (this is called fair use). You are welcome to use any of the photographic techniques and ideas described on this site, and you don't need to ask my permission for this. If some of these techniques are patented by other persons or companies, you are still welcome to use them for personal use, but you cannot sell them to others. It is your responsibility, not mine, to verify whether the techniques you intend to use commercially are already patented. You are also welcome to publicly discuss, re-describe and re-write in your own words any of these ideas without asking my permission. You may refer to me as your inspiration source if you wish, which is the common and ethical practice, but you are not specifically in violation of copyright law if you don't do so.
Given the enormous amount of information about technology available in printed form and on the Internet, if you happen to invent a new technique, it is very likely that someone else, somewhere else, has already invented it or something very similar, and published about it. It is also quite possible that you will become aware of this earlier publication only some time after you - in good faith - described it as your invention. In these cases, the common practice is to explain this briefly, for example by adding a note similar to the following: "After developing and publishing my technique, I discovered that a similar / identical / partly similar technique had already been described by Xxx at www.yyy.com". However, as discussed above, ideas, methods and processes are not copyrightable. Therefore, at no stage in this process can the legitimate inventor claim that you violated his/her copyright (if the process has been patented and the patent is still valid, the patent holder may claim patent violation only if you derived a financial gain from this violation, but not for duplicating this process for your personal use). If the information about this invention was easily accessible, he/she can only stake a moral claim to be recognized as probably the original inventor (until proven wrong by even earlier published information). If the original invention was instead kept a secret, or information was only circulated within a restricted audience of which you are not a part, you are under no moral or legal obligation to acknowledge it as a previous invention.