Essay 27 - Who "Owns" Electronic Texts?

Who “Owns” Electronic Texts? By Tharon W. Howard

In 1996, if you violated someone’s copyright you could be sued in civil court. Today, because of the “Digital Millennium Copyright Act of 1998” you may face up to a $500,000 fine or five years’ imprisonment for your first offense. Sonny Bono’s “Copyright Term Extension Act” in 1998 extended the length of an author’s copyright another twenty years and copyright is granted for seventy years after the death of an author and, in the case of “works for hire,” ninety-five years from publication or 120 years from creation.

Today, corporations like Disney, MGM, and A&M Records can force the public to pay for images of Mickey Mouse, video clips of King Kong, songs like “Happy Birthday,” and other cultural icons for up to 120 years. Remember the lawsuit against Napster in 2000? Lawsuits are continuing to define the limits of the peer-to-peer technologies and copyright laws.

Most writers, including practicing professionals and teachers don’t consider the issue of intellectual property as particularly problematic. Writers today do expect some sort of remuneration for their writing and control over how their texts will be used.

Recent trends toward more collaborative writing projects in the workplace, along with the use of online computer conferences, electronic discussion groups, hypertexts, multimedia presentations, groupware, and other computer technologies aimed at enhancing and promoting collaboration, are all seriously challenging the popular, romantic view that an author owns his or her text. With an increase of reliance of computers in the workplace, writers are finding themselves confronted with intellectual property and copyright issues.
Five scenarios were given with questions about workplace issues.

Scenario 1
While working for a large corporation in the document design department, which prides itself with producing dramatic covers for the company’s annual reports, your co-worker finds a photo that would be perfect for the cover. With a little cutting, pasting and a few other modifications the photo will work. The photo is famous and since only part of the photo is going to be used and the image will be modified and essentially new should you go ahead and scan it? Or do you first have to have permission from the magazine which first reproduced it, the publishing house which sells reproductions of it, or the photographer who originally took the photograph?

Scenario 2
You’ve just been hired by a desktop publishing company and have received a new computer with software that isn’t compatible with other employees’ software. Your boss tells to load your computer with the old software that the office has because they have already purchased the disks. Should you go ahead and copy the software since the office has already paid for it?


Scenario 3
You’re doing research on an article about usability testing for Technical Communication and, as part of your research you join an online discussion group where others are doing human-factors research exchange e-mail messages about their works-in-progress. Someone posts an e-mail that changes your way of thinking about your own thesis. These are unpublished results and you want to quote from the e-mail message in your article.

Can you legally and ethically quote from an e-mail message? Are you obligated to cite the message since it has had such a profound impact on your own thinking? If so, does anyone own the copyright on the message? Do you need to seek the author’s permission? Or, since the message was electronically published by an electronic discussion group, do you need to have the permission of the person(s) who created and operate the discussion group or the university or company which owns the computer that hosts the group?

Scenario 4
You work for a large corporation that uses e-mail throughout the company in lieu of paper correspondence. You have been keeping correspondence with another co-worker, who happens to be of the opposite sex, and keep this correspondence to breaks and lunch periods so that it does not interfere with business hours. Your supervisor is aware of this and agrees with the situation. However, you have found out that your e-mails have been monitored and the butt of jokes. You are furious and you report this to your supervisor. Your supervisor tells you that the company owns the computers and therefore, has the right to monitor their use.

Can you stop this monitoring of your e-mail? Who actually owns the messages you’ve been sending? Do you, as the author, own the messages? Does the addressee who received them? Or does the owner of the system on which the messages were produced? What rights does ownership of the messages entail?

Scenario 5
You are a placement director at a large university in the professional writing program. To help graduates find information about companies that hire writer you set up a HyperCard stack which allows students to click on a state on the U.S. map. This stack is located on computers at the university and from a book which provides an alphabetical list of national corporation, you select data on companies which you think might routinely hire technical writers. The hypertext is so popular that several publishers learn about it and want to publish it.

Can you publish your hypertext? Have you infringed on any copyrights by providing your students with your hypertext in the first place? If you can publish your text, are you legally obligated to pay any royalties to your university or to the publisher or author of the book from which you selected your data?

To understand the problems of ownership in the electronic workplace Howard offers a brief historical examination of the origins of U.S. copyright law. He explores why electronic publishing, electronic discussion groups, computer conferences, and other new information technologies represent such a challenge to current copyright law. A historical examination of the printing press will show that then, as now, the introduction of new technologies challenged existing systems for owning and controlling texts. The examination will show current copyright law reflects an interesting struggle among at least three historically distinct and competing theories of textual ownership. First, of course, the romantic and commonplace notion that authors have a “natural right” to the fruits of their intellectual labors. Second, there is the assertion that the public has a right to all knowledge since “Laws of Nature” and absolute truths cannot be the property of any one individual. And third, there is the view that all knowledge is socially constructed, that a text is a product of the community the writer inhabits, and that the text must therefore be communal, rather than individual, property.

A Historical Overview
Copyright can be defined as the “right to reproduce copies of a particular text” (400). It was not and still is not a “natural unlimited property right” (Beard). It is a limited privilege granted by the state, in that the government gives writers the license to “operate” texts in the public domain.

In the 15th and 16th centuries, before the invention of the printing press, the creation of books depended on the patronage of the Church or the Crown, who then were able to control the kinds of texts both produced and consumed. The printing press led to a radical reduction in production costs, but the limited number of popular and lucrative texts available for publication increased competition. This led to the creation of the Stationers’ Company, which was a voluntarily enforced form of copyright. Thus, the Church and Crown lost their control over the production and consumption of texts, which in turn led to the creation of “subversive” texts.

In 1566 Mary Tudor and Philip of Spain granted the Stationers a royal charter, and it became a firmly established principle that a copyright is not the natural, unlimited, or absolute property of any individual or company. It made it clear that to own a copyright is essentially to own limited license or privilege granted by the state to promote intellectual activities deemed by the government to be in the best interest of the state and its citizens.

In 1709 Parliament’s Statute of Anne provided the basis for Article I, Section 8 of the Constitution, which recognizes the rights of authors.
Major Principles of U.S. Copyright Law “Copyright law in the U.S. recognizes that in order to encourage authors to produce the texts which will lead to the artistic, scientific, and technological discoveries that drive business and industry, it is essential that authors be allowed to realize a profit from their texts” (402). Copyright law does not give authors and publishers the legal right to prevent the public from “fair use” of texts, according to Statute 17, Section 107 of the U.S. Code. It grants the public a right to copy a work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” (402).
Factors to be considered to determine if the use of a work is fair include:
• The purpose and character of the use (is it of a commercial nature or for nonprofit educational purposes?)
• The nature of the copyrighted work
• The portion used in relation to the whole work, both in amount and substantiality
• The effect of the use upon the potential market for or value of the work (17 U.S. Code, Sec. 107) (403)
Only the tangible expression of ideas belongs to the copyright holder, not the ideas themselves.
Copyrights in the Electronic Environment

Actual legal status of textual ownership does not match commonly held beliefs about
the copyright and “who own what” question. Authors own the text rights after text is produced and they are protected by copyright law with limited privileges granted by the State.

The professional communication fields in general and technical writers in particular need to understand the general principles of current copyright law. In addition it’s important to realize that some copyright principles do not always apply to electronic texts. Many professional writers are aware of “fair use” principle, and protection of form of expression but are unsure about copyright laws for particular electronic documents “since technological changes have historically, represented challenges for existing forms of copy protection” (Howard, 1996, p.404).

Nature of copyright laws makes it difficult to say if certain situation is or is not copyright infringement. However, copyright principles can serve as guidelines for professional communicators when dealing with copyright questions. For that let’s return to scenarios presented at the beginning of the chapter.

Scenario 1
Central Questions presented earlier were (1) does such a reproduction fall under the doctrine of fair use and (2) who owns the copyright on the image?
Answer: This case is not a case of ‘fair use” of the original work because reproduction is not being made and used for educational, news reporting, or critical purposes. Even thou original image was manipulated, it’s still be “legally considered a derivation of an original work”. The member of the documents design team should receive permission before reproducing and manipulating the photograph. He/she should contact publishing house which owns the copyright of the original rather than using the magazine’s reproduction.

Scenario 2
Central Question presented earlier was (1) should technical writer go ahead and copy the software since office has paid for the software?

Answer: There is twofold answer in this case:
A. If company has only limited license to copy (usually for purpose of creating backup copies during installation process) the program, copying the software would be a violation of the law. It’s a good idea to check exact terms of licensing agreement to avoid such violation.
B. If company owns “site license” rights to copy software on to several machines or install software on their networks, then software can be copied on to the second system. The exact number of copies that are allowed to be copied should be specified in the licensing agreement and followed accordingly.

Further explanation: Often there is misconception that if company or individual own a copy or software they can use them as they wish. However, according to the copyright principles “owning” a text is not the same as the right to copy the text. We may own an actual physical copy of a book, photograph, computer, disc etc but that does not give us right to copy unless we have purchased license to copy the item.

Scenario 3
Central Questions posed earlier were (1) whether use of quote passage from the e-mail message is protected by the fair use clause and (2) whether the author of the message, the owner of the discussion group or the university that hosts computer groups is the copyright holder for the message?

Answer: Quoting from the e-mail message would probably be fair use regardless of the type of group. If group has ISSN, the fair use conditions would apply. If group does not have ISSN then most secure and ethical would be obtain the permission of the e-mail author before quoting the message. Also it would be beneficial to contact discussion group owner in regards to the quoting practices.

Further explanation: Principle of fair use allows reproduction of short passages for new reporting or in the texts of academic journals such as Technical Communication. Situation here is complicated by the technology involved. According to fair use clause in addition to purpose and amount of work to be copied, “the effects of use” need to be taken into consideration. By using the e-mail message, the author might feel that she was not given the opportunity to publish the work through more traditional means where possibility of remuneration is much greater. On the other hand, sending an e-mail to an electronic discussion is also a form of publishing.
There is no clarity in copyright laws in regards to text sent and distributed in electronic format and it varies from case to case. If the discussion group has received ISSN number it has copyright status. Often, the discussion group’s owner states that copyright belongs to author of the postings or messages sent or group members might have agreement not to cite each other’s messages outside the discussion board.

Scenario 4
Central Questions presented earlier were (1) who “owns” the messages that employer sent? And (2) and what rights does ownership of the messages entail?

Answer: This is not a copy right violation because copyright law principle does not give author “…unlimited property right” to their texts (Beard, 1974, p.382)” (Howard, 1996, p.406). Usually company has sole copyright to the texts that employee produces while being employed by the organization. In this case, if the company’s resources were used to produce emails, the company has rights to use those messages. The above case addresses more issues of privacy than copyright infringement.

Further explanation: In some cases (particularly in university setting), an institution may only receive portion of the remuneration. This is due to the fact that work of the writer was done partly using institution’s resources and partly done on employees own time.

Scenario 5
Central Questions presented earlier were (1) whether the university is entitle to some royalties received for the stack’s publication and (2) whether using the data but not the organization or expression from another work constitutes a copyright infringement?

Answer: If university’s resources were used to develop the stack, the university should get remuneration for use of its facilities. The faculty member should agreed to share percentage of profit with the university. Answer to the question of whether reorganization of data complied in another source constitutes a copyright infringement is no. Faculty member’s use of information is not a copyright infringement because the original expression of data has been avoided. Copyright law also indicates that data are part of public domain. The safest way for the faculty member, however, would be to negotiate some kind of financial arrangement with the persons holding copyright to the reference materials.

Further explanation: Two fundamental principles of copyright law come into conflict in this scenario. One of the principles is that authors and publishers are expected to make profit from their publications, on the other hand there is principle that “ideas and knowledge cannot be the property of any one individual and that only the expression of the ideas belongs to the author or copyright holder” (Howard, 1996 p. 407).

As in many cases that involve electronic texts today there is ambiguity on how Congress and court will deal with changes to the current copyright law. It’s possible that due to hypertext and electronic databases it will allow users rather than authors to determine the ultimate organization and shape of these electronic texts This is fundamentally different from the present copyright law.

Conclusion
As the scenario showed, the new electronic environment in which writing professional must function makes intellectual property and copyright issues more a part of their everyday experience in the workplace. Writers must know the basis of the copyright laws better than ever. The scenarios do not offer how one might turn out in a court of law, but it should offer writers how to avoid copyright infringements.