5 Copyright Terms We Need to Stop Using Incorrectly

Wrong Way ImageCopyright is playing a bigger and more important role in the lives of everyday people. Where, thirty years ago, copyright only really impacted those in mass media, now every social media user, media consumer or Internet user needs to be at least somewhat aware of copyright and the roles it plays.

Unfortunately though, the dialog about copyright has not kept up with its rising importance and a slew of terms and phrases are used casually in ways that simply wrong.

Now is the time to correct those mistakes and to try and help those less familiar with copyright terminology understand what these terms actually mean and how to better convey what they are actually talking about.

To be clear, this isn’t about copyright terms that are controversial such as theft, piracy and sharing, which are often the subject o heated debates even though they really aren’t technical terms when it comes to copyright.

These are clearly-defined terms that are used in a way that is materially incorrect.

1. Public Domain

What it Means: A work that is in the public domain means that it is not copyright protected. This could be because the copyright expired, as with very old works, that it was a work created by the U.S. government or that it lost copyright protection through one means or another.

How it is Used: However, many have used the term to say that a work is available on the Internet, in bookstores or otherwise available to the public. The confusion is understandable, but most works that are available to the public are very much under copyright.

What to Use Instead: Either use “Available to the public” or “Publicly available” as that is more along the lines of what is intended.

2. Copyright Free

What it Means: Similar to public domain, copyright-free simply means that the work is free of copyright restrictions and, essentially, is in the public domain.

How it is Used: However, many use it to mean that a work is available for some kind of reuse. This includes royalty-free stock photos, content placed under Creative Commons Licenses and other content that’s available for limited reuse. Unfortunately, most of those works are just licensed for use, not actually copyright-free.

What to Use Instead: Either “Available to use”, “Cleared for use”, “Licensed for use” or “Royalty free” depending on the nature of the work and it’s license.

3. Fair Use

What it Means: A fair use of a work is an infringement of a work where the court has determined that the infringer is not liable due to the nature of the infringement being within the bounds of the law.

How it is Used: Unfortunately, fair use is often used to describe any use of a copyrighted work that is noncommercial, attributed or otherwise seen as ethically acceptable. However, fair use is a defense to a copyright infringement lawsuit and can only be determined in a court and it is based upon four factors that must be weighed by a judge and/or jury.

What to Use Instead: Probably nothing. If your use is a fair use, saying so doesn’t bolster your case. Likewise, if it isn’t a fair use, saying that it is doesn’t make you any less liable. If you are trying to say a use is “attributed” or “noncommercial” you can say that, but no one outside of a judge or jury can make a determination that a use fair or not, they can only hazard a guess.

4. Open Source

What it Means: Open source simply means that the work is licensed under an open source license. Though most open source licensed works are software applications, other types of works can and are licensed as well (notably help documents). These licenses provide a great deal of flexibility and freedom to users including, the right to edit the work, copy it or distribute it with certain restrictions.

How it is Used: However, some have taken to calling any freely available application “open source” even if it is merely a free piece of software. Many applications that can be legally downloaded for free are not open source. Likewise, not all open source applications are free of charge, with many costing money to obtain.

What to Use Instead: “Freeware” or “Free to download” software is generally much more acceptable in cases where you are dealing with free applications that are not licensed under an open source license.

5. Copyright

What it Means: Copyright is a set of rights that a creator (or their employer) has in a creative work of authorship that is fixed into a tangible medium of expression. This includes books, music, software, artwork, music, movies and more.

How it is Used: However, it is often used as a substitute for other types of intellectual property or even intellectual property in general. This includes everything from trademarks, such as names and slogans, to ideas or anything else that seems remotely copyright-like.

What to Use Instead: If you don’t know what type of intellectual property it is at issue, just say “intellectual property”. Otherwise, you can use trademark, patent, trade secret, etc. to identify the actual type of property at issue.

Bottom Line

What we need is better dialog about copyright among all parties who have a stake in it. This includes content creators, consumers, intermediaries and more. However, that dialog can’t take place if we can’t agree on basic definitions of key words.

It’s important for everyone involved to not just understand how copyright works, what it is and what the law says, but also how to convey their thoughts and feelings. What we need isn’t an angry or motivated populace, but an informed one that can make their own decision and express their own viewpoints effectively.

Without that, the entirety of the copyright debate is prone to hyperbole, miscommunication and exaggeration, three things that help no one.

If the copyright climate on the Web is going to improve, we need better quality discussion, not just more of it.

10 comments
ArtistsRights1
ArtistsRights1

So many angry voices here! Yes, it would have been more accurate to characterize Fair Use as an exception to copyright protections, but the author is basically correct - it is a defense in an infringement case. And I think the commenters' anger over deep-pocket lawsuits is misdirected. By far, the largest number of people who are infringed are small-income individuals who likely work two jobs and who have not registered their work with USCO and are therefore unable to leverage the power of the law for redress. If you create original work, you should have protection against others' exploitation of it. If you want to use someone else's work, contact them and ask to use it. Is that so difficult? If it is, you don't deserve to use it.

The Doktor
The Doktor

"A fair use of a work is an infringement of a work where the court has determined that the infringer is not liable due to the nature of the infringement being within the bounds of the law."


Nonsense.  This is like saying that "self-defense is a kind of legal form of murder," or "public right-of-way is a kind of legal form of trespassing," or "borrowing is a kind of legal form of theft."  INFRINGING on copyright is, by definition, a crime.  FAIR USE, by definition, is NOT a crime.

No, nobody can be 100% sure if a form of fair use is liable as infringement until the legal system has ground its gears.  Unfortunately, it's another system of how the copyright system is deeply flawed and relies on "checkbook justice" with control often going to the party with more financial resources, not the one who is actually right.  


Anonymous
Anonymous

The four factors do not 'have to be weighted by a judge and jury'. They are a static list of criteria to be met under which a derivative work is no longer infringing. Regrettably, this doesn't stop bloated rights holders from pursuing inflated infringement claims on non-infringing uses with the goal of bankrupting the 'offender' in legal fees whether they have a sound case or not.

Brandon Carbaugh
Brandon Carbaugh

Also, your definition would seem to imply that, once accused of infringement,  a person is automatically guilty, until found otherwise by a judge and jury. Sound reading of the law!

Brandon Carbaugh
Brandon Carbaugh

Fair use is a codified element of copyright law. It is not merely a legal defense, nor is it "infringement of a work where the court has determined that the infringer is not liable".


From 17 U.S.C. § 107:


"*The fair use of a copyrighted work*, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, *is NOT an infringement of copyright.*"


Fair Use is USED as an affirmative defense in cases where selacious charges of infringement have been brought -- but to say that Fair Use is solely a legal defense against infringement is like saying Right to Free Assembly is a legal defense used to justify acts of treason. It's either a woeful misunderstanding or a malicious mischaracterization of basic rights guaranteed the people by law

Brandon Carbaugh
Brandon Carbaugh

Fair use is a codified element of copyright law. It is not merely a legal defense, nor is it "infringement of a work where the court has determined that the infringer is not liable".


From 17 U.S.C. § 107:


"*The fair use of a copyrighted work*, including such use by reproduction in copies or phonorecords or by any other means specmischaracterization by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, *is NOT an infringement of copyright.*"


Fair Use is USED as an affirmative defense in cases where selacious charges of infringement have been brought -- but to say that Fair Use is solely a legal defense against infringement is like saying Right to Free Assembly is a legal defense used to justify acts of treason. It's either a woeful misunderstanding or a malicious mischaracterization of basic rights guaranteed the people by law.

Marscruiser
Marscruiser

@Brandon Carbaugh On the one hand, section 107 fair use isn't just a legal defense, but from a practical legal standpoint, that's how it is most often applied. It most often comes up when someone has been sued for alleged infringement as a defense.  

However, it's also not a blanket basic right.  Like you quote, 107 allows for SPECIFIC TYPES OF USES.  And even those specific uses listed may still be infringing if balancing the four factors finds the use infringing.  For instance, a critic cannot publish half a book and call it part of his review.  That's arguably criticism, but likely going to be considered infringement.  

It's a dangerously squishy and subjective piece of law that probably shouldn't be considered a basic right. 

Vincent Clement
Vincent Clement

@PulseRecords @copyright4u @plagiarismtoday Worth it to inform the creator and end user that Plagiarism Today does not understand plain English. It says right in the section about Fair Use that Fair Use "is not an infringement of copyright". Yet Mr. Bailey insists that Fair Use means an infringement. 

Marscruiser
Marscruiser

@Vincent Clement @copyright4u @plagiarismtoday Section three of this article wasn't well written.  You're right, but ONLY if the "fair user" wins the case.  It would be more accurate to say someone is ALLEGING an infringement has occurred.  

Here's why: Consider the chain of events.  For Fair Use to arise as an issue, someone's work must have been used without permission.   That work's owner feels an infringement has taken place, and is sufficiently angered to file a very expensive lawsuit.  The user feels the use was fair, and asserts Fair Use as his defense.  Reasonable minds can differ, so off to court they go.   

If the court finds the "use" is Fair Use under Section 107, then yes.  Your reading is correct, the use was not infringing, and no infringement has occurred.  But if it is found NOT Fair Use, then you're wrong, and infringement HAS occurred.  Essentially, the issue of Fair Use is settled on the way to determining whether a use was an infringement.