Avoid Copyright Infringement
Care must be taken when transforming your research into your own composition to avoid copyright infringement, which is the illegal misappropriation of work that is protected by copyright. You may only use copyrighted material with the permission of the copyright holder. This is secured by written agreement — usually a letter signed by the copyright holder — similar to the sample in Appendix B.
Copyright infringement is not plagiarism. Plagiarism is the failure of providing acknowledgment to the author of the material and instead taking credit for oneself. The plagiarist falsely represents that someone else's work is his own, while the person who infringes upon another's copyright reproduces the work without permission. A copyright infringement may occur even with credit given to the author.
Without going into the complexities of copyright law, the most prudent course of conduct you should follow is to assume that everything you have come upon in written or tangible form has been copyrighted and you will need permission of the copyright holder to reproduce any of it or to expropriate its substance. You cannot assume that the author is the copyright holder. It can be the publisher or another party, but starting with the author — unless the name of the copyright holder is indicated — is a good idea.
The six defenses to copyright infringement are:
Fair use
Independent creation without knowledge of the other work
Use of public domain
Permission had been granted
Inexcusable delay to enforce the copyright
Statute of limitations to bring legal action had lapsed
If you can prove you created your work independently of the copyrighted material, you will not be liable for infringement. However, the burden will be on you to substantiate this, which can be difficult to do. Suppose you write an article for a local newspaper about feral cats and the best way to utilize “have-a-heart” traps to capture the cats without injury. A few months later you receive notice that you have infringed upon a copyrighted article in Cat Fancy, a magazine with national circulation, that appeared before your article and explained the same procedure. How do you prove you never saw the article? You can see how difficult proving your claim can be.
Copyright protection does not last forever and once expired the work falls into the public domain. Work created before January 1, 1978, is protected for a period up to seventy-five years. Work created after that date is protected for a period spanning the life of the author plus seventy years.
You would not be liable for copyright infringement if you secured permission; the copyright holder was tardy in bringing legal action; the time period for copyright protection had lapsed; or the material fell into the public domain. These are straightforward defenses that can be established. The more difficult and more frequently occurring issue arises when you maintain the right to make “fair use” of the material and therefore did not need to secure permission.
Fair Use
The concept of “fair use” is a defense to copyright infringement that permits researchers, scholars, educators, and the like to utilize small portions of copyrighted work for socially beneficial purposes without obtaining consent. “Fair use” has been relied upon throughout this book wherever you came upon an excerpt or quotation. You will note that acknowledgment has always been made to the author of the work to avoid the taint of plagiarism. On the other hand, samples that appear in Appendix A were accompanied by a signed permission to use the work.
The problem in relying upon the “fair use” doctrine is that the final judgment rests with the court in applying the standards to a specific case. Unfortunately, there are no clear demarcations and this can be a murky issue. For example, exactly what is a “small portion” of the work that has been utilized? Clearly, a few words will fall within the “fair use” protection and several pages will not. But what about one page? One paragraph? Two paragraphs? There is no guarantee what a court may hold when it comes to interpreting this gray area of the law. It is best for you to err on the side of caution. There are some guidelines, however, you can consider when making a determination about whether “fair use” is applicable:
The less commercial your work, the more likely fair use will apply.
The more didactic or scholarly your work, or if it is newsworthy, the greater the chances fair use can be relied upon.
Using your own words or paraphrasing the material rather than quoting the work strengthens the case for fair use.
The shorter the work relied upon — generally two paragraphs or less — the more likely fair use applies.
Do not make use of the crux or major part of another's work.
Provide appropriate credit to the author of the work.
Your work should not compete in the commercial market with the work copied.
