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Copyright or Copy Wrong?

Almost always, borrowing someone else’s work qualifies as plagiarism

Dear Nan,
Am I in real trouble? At the request of my boss, I developed a new personnel policy handbook for the company. I was rushed for time. (It’s our busy season.) So I surfed the Web and came across some great information. Against my better judgment, I lifted the information in its entirety. Now, I’m starting to get nervous because my boss trusted me with this important project, the company has spent considerable money producing it, and I may be guilty of plagiarism. Where are the boundaries here?
- Unintentional Pirate

No matter how you may try to justify your actions (rushed for time, etc.) you are still a plagiarist because you are pretending you authored the copied work and you infringed on the rights of the copyright holder.

Piracy (that's the name for it) of intellectual property is a rapidly growing problem, just because so much is available on the Net. It's relatively easy to download images and tunes; and, low-profile theft will probably go undetected, at least for a while. However, those who do get caught are facing expensive penalties.

Sadly, you are personally liable. Copyright holders continue to sue individuals, and penalties for "willful infringement" can run up to $150,000, not including legal fees. The fact that you work for someone does not insulate you either, even if your boss explicitly told you to "go steal something off the Internet," which he didn't. This is just another example of the increased accountability that comes with admins' increased professionalism.

Interestingly, some aspects of your dilemma surface when a company considers making additional copies of software, videos, music, and other types of intellectual property. A few of the end runs people use to justify their actions include, "I've already paid for one copy, and I think it's overpriced anyway, so it's OK to make another copy" and "No one gets hurt if I make a copy; it's not like I'm depleting an inventory" and (my personal favorite) "In fact, by making another copy and showing off the work, I'm actually doing the creator a favor."

Never has it been so easy to pirate others' work. The Internet makes our jobs (and lives) easier because so much great text and art is at our fingertips. As a result, we all have to be aware of what we can and cannot copy.

First, understand what you did wrong, so you don't repeat the mistake. Second, confess to your boss and your company's attorney exactly what you did. They need to hear this story from you. Examine the Web site(s) from which you took the information, and assess the risks.

"First of all, the writer shouldn't have to be ashamed to tell her boss she found usable information on the Internet," says Katharine Lewman CPS, administrative assistant at Milliman USA Inc. in Indianapolis. "Secondly, after she lets her boss know what information is not original, her company can contact the original writer(s) to get permission to use the material or remove the text if they so desire. Addendums, updates, and revisions to employee manuals are not uncommon; so, she is more likely to get in hot water for not 'fessing up than she will for causing the company to issue some revised pages to a policy handbook."

The bottom line? Never use someone else's intellectual property - ever - unless you are certain you can do so without incurring a liability. The following guidelines will help you determine this potential liability. But be advised that the laws relating to intellectual property are vague enough to make each case subject to wide interpretation. If you are ever in doubt, err on the conservative side and consult your legal advisor.

There are four major intellectual property laws in the United States and Canada:
  • Copyright law, which protects original "works of authorship."
  • Patent law, which protects new, useful, and "non-obvious" inventions and processes.
  • Trademark law, which protects words, names, and symbols used by manufacturers and businesses to identify their goods and services.
  • Trade secret law, which protects valuable information not generally known that has been kept secret by its owners.

Administrative professionals are most often concerned with the copyright law. Many admins have responsibility for Web site content, training manuals, etc. Clicking-copying-pasting an illustration from here and text from there to spice up a dreary manual is likely going to require some permissions.

Keep in mind that "copyright" protects against copying the "expression" in a work, not against copying the work's ideas. The difference between "idea" and "expression" is one of the most difficult concepts in copyright law. The most important point to understand is that one can copy the protected expression in a work without copying the literal words (or the exact shape of a sculpture, or the exact "look" of a stuffed animal). When a new work is created by copying an existing copyrighted work, copyright infringement exists if the new work is "substantially similar" to the work that was copied. The new work need not be identical to the copied work.

Generally, the copyright is owned by the person or persons who create the work. However, if an employee within the scope of his or her employment creates the work, the employer owns the copyright because it is a "work-for-hire." In other words, when you write your company's employee manual, you are doing it on the basis of work-for-hire, and the company, not you, owns the copyright.

You can avoid the need to get permission to use a copyrighted work in only three circumstances:
  • if the work you use is in the public domain (no longer protected by copyright)
  • if the material you use is factual or an idea (no one can claim originality or authorship for facts—you are free to copy facts and ideas from a copyrighted work, but the expressions or presentations of those facts or ideas is protected)
  • or if your use is "fair use."

What is fair use? The "fair use" doctrine of the copyright statute allows limited reproduction of copyrighted works for educational and research purposes, such as criticism, teaching, news reporting, scholarship, or research. When copyrighted works are used for these purposes, the courts say the rights of the copyright owner are not infringed upon and therefore can be used without permission. The law lists four tests to determine whether a particular use of a copyrighted work is a permitted "fair use," rather than an infringement of the copyright:

Test 1

Purpose and character of use. When the use is noncommercial, the copied work is more likely to be found to be fair use.

Test 2

Nature of the copyrighted work. A copied work is more likely to be judged fair use if it is factual rather than creative.

Test 3

Amount and substantiality of the portion used. If only an inconsequential, tiny amount of the protected work is used, it is likely to be found to be fair use. If what is used is small in amount but substantial in terms of importance, a finding of fair use is unlikely. A work does not have to be identical to infringe copyright in an earlier one. The legal test of infringement is "substantial similarity," which translates (roughly) into whether an ordinary observer would recognize a work as copied in whole or in part from an earlier one.

Test 4

Effect on the potential market for, or value of, the protected work. If the copied work deprives the copyright owner of sales revenue, for example, the copied work will not pass this fair use test.

Requesting Permission to Copy

Let's imagine you have found the ideal work in print or on the Internet, but it's copyrighted. Getting permission (and probably paying a nominal fee of $l0 to $1,000) is not difficult, but it typically will take three to eight weeks to obtain. A request to copy a copyrighted work should generally be sent to the Permissions Department of the publisher of the work. Permission requests should contain title, author, and/or editor and edition; exact material to be used, giving page numbers or chapters; number of copies to be made; use to be made of the copied materials; form of distribution (classroom, newsletter, etc.); and whether the material is to be sold.

In the end, the safest course of action is: Do not copy a work for which others own the copyright unless you have permission. And if all else fails, why not create a new work altogether? The world needs more expressions of ideas in all artistic forms in all media. You can create the work yourself or hire someone else to do it knowing, with confidence, that when the shoe is on the other foot, federal laws will protect this work from copyright pirates, too.

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A past international president of IAAP, Nan DeMars CPS is an internationally recognized authority and seminar leader on office ethics. She is president of Executary Services in Minneapolis, MN, and author of You Want Me to do What? When, Where, and How to Draw the Line at Work (Simon & Schuster).

Contact Nan for more information about executary consulting services or seminars