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Cision White Paper - The Professional Communicator's Guide to Copyright Compliance and Fair Use

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  • 1. White PaperThe ProfessionalCommunicator’sGuide to CopyrightCompliance and FairUse“Information wants to be free because it has becomeso cheap to distribute, copy, and recombine— toocheap to meter. It wants to be expensive because itcan be immeasurably valuable to the recipient. Thattension will not go away. It leads to endless wrenchingdebate about price, copyright, ‘intellectual property,’and the moral rightness of casual distribution,because each round of new devices makes the Publishers have become more aggressivetension worse, not better.” about protecting their copyrighted content, –Stewart Brand, In The Media Lab: Inventing the Future at MIT, up to and including waging legal battles resulting in substantial financial rewards. In Viking Penguin, 1987 many cases, the offending parties did not even know that they were doing anything wrong. Therefore marketers who promote, Introduction: Why Copyright Law distribute and encourage customers to Matters to You consume information are discovering they need to make a stronger and more It’s been more than 25 years since the consistent ongoing commitment to copyright explosion of digital information dramatically compliance. amplified contention between publishers needing to protect and profit from their Recent surveys by market research firms intellectual property and web-enabled Outsell and FreePint have found that 75 consumers with a seemingly insatiable need percent of employees in U.S. manufacturing to copy, share and distribute information. firms share content with team members every week, and more than 40 percent of Now, with mobile social media enabling workers globally forward web content at instant, casual real-time distribution and least weekly. Much of that information is sharing of information among millions of subject to copyright protection that requires users, the challenge of copyright protection permission from the content owners before has become more complex than ever. For any kind of copying or sharing. But a majority marketers and professional communicators in the Outsell survey said they either did not especially, these challenges—not to mention think about whether the information they the risks and potential liabilities—are were sharing was protected by copyrights or, profound. worse, did not care whether it was or not. Copyright © Cision, Inc. All Rights Reserved. 5/12us.cision.com  866.639.5087  Follow us: 332 S Michigan Ave., Chicago IL 60604
  • 2. The Professional Communicator’s White Paper Guide to Copyright Compliance Marketers, PR professionals and other protections in place, and the exact nature of communicators ignore copyright compliance the re-use. at their peril. The more successful marketers are in their jobs, the more attention they And while legal compliance is reason enough, get for the information they communicate. professional communicators have additional That means they are on the front lines of practical reasons to get up to speed on scrutiny by publishers on the lookout for copyright regulations. In many cases it’s prominent examples of copyright violations. perfectly legal to use copyrighted material Therefore, as marketers and PR pros expand in appropriate ways. If we always avoid and diversify their output of branded content copyrighted material, we can find ourselves into an ever-growing variety of formats—from hamstrung when we try to participate in blogs to YouTube videos, webinars, podcasts, conversations online with our constituents image galleries, slide presentations and and customers. What’s more, copyright many others—copyright compliance holders can benefit from the exposure when becomes a vital concern. we share their content within the limits of the law. But there’s good news. Because ignorance and inattention are root causes of the Finally, in an era when “every company is problem, a concerted effort to inform, a publisher,” professional communicators educate and implement copyright compliance are both content creators and content best practices can minimize risk—while consumers. You should know when, how and enabling appropriate sharing of and access why it’s important to protect your original to business-critical information. If you are not work by claiming and protecting copyrights wrestling with these questions involving the for content you have produced for yourself re-use of intellectual property every day, you and your clients. should be: • Can I copy an article and send it to my Tips on Avoiding Copyright Infringement client? • Don’t copy an entire article and email it to a • Can I excerpt a paragraph of this distribution list. copyrighted news article or research paper in my blog post? • Don’t make reprints of an article to distribute for sales • Can I put copyrighted images in my purposes without permission from the copyright holder slide presentation that I find in a Google • Don’t quote even short excerpts from copyrighted Image Search? material without fully identifying the source, and • Can I post this video of our industry- don’t quote extensively from any copyrighted content networking event even though the without permission venue’s sound system can be heard • Only post an excerpt from another source on your blog playing in a copyrighted pop song in the or website if you are using it to illustrate an original background? point you are making; and always identify the source and link to it If the answer to each of these questions • If you want to reprint large quantities of a review or an were a simple “no,” the job would be easy, article as a sale reference, get permission and pay for but little marketing would get done. In fact, the answer to each is “it depends.” To make the reprint rights if need be an informed decision about whether use • When in doubt, contact the original source and ask for of the information is legal, or if a license written permission or written permission is required, in each instance you need a clear understanding of the source of information, the copyright Copyright © Cision, Inc. All Rights Reserved. 5/12us.cision.com  866.639.5087  Follow us: 332 S Michigan Ave., Chicago IL 60604
  • 3. The Professional Communicator’s White Paper Guide to Copyright Compliance 1. What is a Copyright? • In 1988, the U.S. passed the Digital Domain Copyright Act (DMCA), which A copyright provides legal protection for any extended the reach of copyright laws to the creative work that is published, broadcast, Internet, making it illegal to bypass devices or presented or displayed publicly, including or measures intended to prevent illegal any video, audio or written work on the web. copying of works for sale and limiting the Copyrighted material can include literary liability of online information services for works, including plays; music recordings; copyright infringement by their users. architectural works; blog posts; any kind of • A famous court case against Napster journalism (print, broadcast, or web); movies, effectively shut down the pioneering TV shows, corporate videos and any original web-based music sharing service in 2001. videos posted on YouTube; choreographed • And, in 2012, Congress created a firestorm dance; artworks of all kinds including of controversy when it considered, then sculpture; and more. tabled, the Stop Online Piracy Act; the legislation, known as SOPA, was favored by An important principle of copyright law is Hollywood content producers worried about that while an original expression of a fact piracy but opposed by Internet advocates or idea can be copyrighted, the idea itself who feared curtailment of the free flow of cannot. Therefore a news organization that information on the Web. breaks a news story cannot copyright the actual information or facts it has published, Most people are aware that copyrights do even if it is reporting them for the first time. not last forever. Works published in the However, it can copyright its unique print United States before 1923 are in the public story, video broadcast presentation, or online domain, which means anyone can use, copy, write-up of the news; anyone copying and re-use, or modify the work without getting redistributing that original news story in its permission from the original author. Under entirety violates the publisher’s copyright. today’s laws, original works are copyrighted But writing a different account of the same for the term of the author’s life plus 70 news does not. years before they enter the public domain. However, anything published by the federal While you can register content with the U.S. government is automatically in the public Copyright Office to certify your copyright domain. on it, the law regards any original work as already having a copyright. Therefore the 2. Compliance Matters to PR and minute you post your original blog entry with Marketing Professionals – Now More your name on it, you legally own the copyright than Ever to it. Public relations professionals have always In recent years, Congress, the courts and collected clips of the media coverage they industry associations have further clarified secure for clients and circulated links to copyright rules: stories posted on the web. But with so much media business now done in the • Software copyrights have long been a online world, where it is easier to cut and critical issue for software developers paste content, publishers have become anxious about losing sales to software increasingly diligent about protecting their pirates, and the Software and Information copyrights. Industry Association (SIIA) has been effective in clarifying and promoting • In 2009, the Associated Press set up a awareness of laws governing software News Registry to help publishers track product copyrights. their content online, making it easier for Copyright © Cision, Inc. All Rights Reserved. 5/12us.cision.com  866.639.5087  Follow us: 332 S Michigan Ave., Chicago IL 60604
  • 4. The Professional Communicator’s White Paper Guide to Copyright Compliance them to charge anyone who reuses it. citing another published source; teaching; • Then, in early 2012, the AP established scholarship; research and others. The U.S. the “NewsRight” consortium of major Copyright Office cites section 107 of the newspaper publishers to help set up copyright law outlining four factors to be licensing agreements capturing revenue considered in determining whether or not a from anyone who wants to copy, distribute particular use is fair: or re-publish their content. • At the same time, individual publishers 1. The purpose and character of the have stepped up their efforts to negotiate use, including whether such use is of licensing agreements with any organization commercial nature or is for nonprofit that wants to copy, distribute or re-use educational purposes their content. 2. The nature of the copyrighted work 3. The amount and substantiality of the While the “fair use” doctrine allows limited portion used in relation to the copyrighted referencing and re-use of publishers’ work as a whole copyrighted content without permission, the 4. The effect of the use upon the potential doctrine does not supply bright lines, and market for, or value of, the copyrighted there will inevitably be many judgment calls. work Because PR professionals need to be able to communicate with their clients about what A Practical Guide To Fair Use kinds of coverage they are receiving and what specifically the media are saying about them, Reclaiming Fair Use, by two American University profes- it’s essential that they know and understand sors, Patricia Aufderheide and Peter Jaszi, is an up-to-date the rules. Those who aren’t up to speed on guide to how fair use doctrine established by recent U.S. what kind of referencing is permitted often case law enables appropriate re-use of copyrighted mate- err on the side of caution and fail to circulate rial, especially on the Internet important news that should be shared. That level of caution can shut you out of fast- The authors advise content creators to ask the following moving online conversations vital to your questions before excerpting a piece of copyrighted mate- business. rial, such as a news article quoted in a blog post: • What purpose am I putting this material to? It helps if Therefore, it behooves today’s professional communicator to have a good understanding your purpose is different from the copyright holder’s. of the rules about fair use and copyright • How much do I need for that purpose? Use the mini- compliance–and to play by them. And make mum amount necessary. sure you have access to informed legal They say the safest approach is usually to provide a de- counsel who can give you a definitive answer scription of the content in your own words along with a link any time you have the slightest question to the original source, but it’s not necessary to ask permis- about what’s permissible. sion to excerpt a copyrighted work when exercising your fair use rights. 3. “Fair Use” is a Moving Target – Keep it in Your Sights Fair use, they argue, is “a bold demonstration of the need to share culture in order to get more of it.” “Fair use” is a well-established doctrine enabling appropriate re-use of copyrighted material without penalty. Such appropriate uses may include a work of criticism that quotes an original work; commentary referencing an original work; news reporting Copyright © Cision, Inc. All Rights Reserved. 5/12us.cision.com  866.639.5087  Follow us: 332 S Michigan Ave., Chicago IL 60604
  • 5. The Professional Communicator’s White Paper Guide to Copyright Compliance In other words, if you are reviewing a book Copyright Clearance Center (CCC). The and copy and quote a small portion to explain concerted, regular copying of articles by it or make an original point of your own, you for-profit entities, which could be obtaining may not be violating the original copyright. Or CCC licenses or other permission, may if you write a blog post and want to reference well not be fair use. Copyright owners may someone else’s original work in a way that not care about one-off copying; they may supports a point you are making, a brief be concerned by regular copying that ends quote attributing it to the original source up weakening their subscription or other would most likely be fair use. (The Stewart revenues. Brand quotation in the Introduction to this white paper is an example of fair use.) 4. When in Doubt, Attribute! But copying the entire article or any other Once you have a good understanding of complete original work and using it as your what material you can use freely and not, own would be a clear violation of the original what are the best practices to employ as copyright. a professional communicator? The key is attribution. Several moves are afoot to Between those extremes, however, is a large make attribution of web-based content gray area. The Copyright Office cautions faster, easier and more consistent. At the that “the distinction between fair use and 2012 South by Southwest Conference, a infringement may be unclear and not easily group of well-known editors led by Simon defined. There is no specific number of Dumenco, a media columnist for Ad Age, words, lines, or notes that may safely be formed a committee called The Council on taken without permission. Acknowledging the Ethical Blogging and Aggregation, which will source of the copyrighted material does not set standards for best practices in linking, substitute for obtaining permission.” summarizing, referencing, aggregating and redistributing news and other web-based Therefore, the safest course is to get content. permission from the copyright owner before using copyrighted material. Unfortunately, it’s At the same time, often not feasible to get permission to use blogger Maria the material when you need it. In that case, Popova announced it’s extremely important not only to review the Curator’s the criteria for fair use, but also to make sure Code, which is you attribute your use to the original source. promoting two tags to identify what kind of content you are referencing. One resembles A commonsense approach is to think about a sideways “S” and signals a piece of the commercial harm you’d be causing -- the content came directly from another source, lost revenue to the copyright owner -- if your and the second looks like a looped arrow to copying were replicated by thousands of signify a “hat tip” to a source that inspired a others. If what you’re copying is something unique or additional new thought. Attaching that the copyright owner (author or publisher) the tag to the link to the source highlights customarily sells, or licenses, then its what kind of attribution you are assigning it. likely not fair use. Newspapers like The New York Times or the Wall Street Journal Finally, the Creative Commons has sell subscriptions and derive substantial eestablished an Attribution License for revenues from licenses for use of copies content owners who want to share their of their articles distributed through Lexis content and see it redistributed (see or from content licensed through the sidebar). Creative Commons grew out of the Copyright © Cision, Inc. All Rights Reserved. 5/12us.cision.com  866.639.5087  Follow us: 332 S Michigan Ave., Chicago IL 60604
  • 6. The Professional Communicator’s Guide to Copyright Compliance White Paper 5. What Happens When “Every Look for the Creative Commons Business is a Publisher?” Who hasn’t been tempted to jazz up a blog post As marketers, public relations professionals or marketing materials with some images and and other professional communicators start graphics pulled from Google and other web creating as much content as they consume, sites? How often have you held back, knowing two positive things happen. First, they add the image you want to use is copyrighted? value to the public dialogue with their unique contributions. Second, they become far The Creative Commons, an organization that has more sensitive to the nuances of copyright established copyright licenses that owners agree to protection and infringement. share on the web free of charge, has a solution for you. It’s called an Attribution License, and it allows anyone to This is especially true for public relations copy, repurpose or modify the work that carries it, even for professionals. Whereas marketers and commercial purposes. advertisers have always worked diligently to protect trademarks and copyrights associated with the brand names and brand imagery they Those who redistribute content under an Attribution promote, public relations professionals in License are expected to give credit to the creator. You can the past often served mainly as middlemen, search more than 30 million images carrying an Attribution connecting the dots between a client’s brand License on Flickr. messages and a publisher’s reporters, writers and other content creators. You can also find images with Attribution Licenses by using the Commercial License and Modification Filters within But in today’s environment where “every Google Advanced Image Search. business is a publisher,” all communication professionals must regard themselves as content producers. Protecting the copyrights early confusion around intellectual property of the information you have created becomes rights on the Web as a way for those who just as important as respecting the copyrights create text, images, video and other works of the content sources you want to reference to allow others to redistribute their creations and disseminate. without fear of copyright infringement. Content creators who license output under User-generated content is an especially Creative Commons often do so to drive sensitive area when it comes to copyright exposure for what they’ve published. compliance. Many companies encourage customers to comment on products and Which raises the question about what to do services, or to answer each other’s questions when the shoe is on the other foot—when on company-hosted chat sites. Many in your role as content creator for a brand, marketers also go so far as to encourage you want to see it go viral on the web but customers to create their own ads on the at the same time maintain your proprietary company’s products and services as a way of rights to it. In that case, you are the publisher showing off their creativity while sharing the with a vested interest in protecting your own passion about the company. But when users copyright. generating content knowingly or unknowingly violate other content producers’ copyrights, the company hosting the conversation or user content can be liable. Copyright © Cision, Inc. All Rights Reserved. 5/12us.cision.com  866.639.5087  Follow us: 332 S Michigan Ave., Chicago IL 60604
  • 7. The Professional Communicator’s Guide to Copyright Compliance White Paper The rules surrounding copyrights and copyright infringements are evolving. But that doesn’t mean you should sit on the sidelines until they become clear. The more you participate in ways that follow the rules, the more you promote an environment where intellectual property is protected while continues to flow. As you move ahead producing your own content and participating in web-based conversations that circulate information copyrighted by others, there is one golden rule you should follow: “Treat content belonging to others as you would have others treat content belonging to you.” As with so many other things in life, a little awareness, respect, and commonsense will go a long way. As a world leader in media monitoring, research and analysis, Cision works hard to meet the needs of customers who need to know what is published about them. We also are committed to respecting and protecting the Intellectual Property rights of publishers and content providers. That’s why we’re working with customers, publishers, and international copyright organizations to ensure we meet the needs of both constituencies. Copyright © Cision, Inc. All Rights Reserved. 5/12us.cision.com  866.639.5087  Follow us: 332 S Michigan Ave., Chicago IL 60604