Protecting Your Online Written Content from Unauthorised Use

Protecting Your Online Written Content from Unauthorised Use
7 Graces Community member and lawyer, Lubna Gem Arielle, explains copyright, plagiarism, and key issues to consider when someone has copied your original work.

I’m often asked questions about protecting online written content. I’ve lost count of the number of times I’ve seen a post where someone canvasses views from their online community – perhaps a LinkedIn or Facebook group – of what to do to because someone seems to have snaffled chunks of their original material. Much to the author’s dismay, their website copy, blog posts or other online articles were repurposed as the snaffler’s own work, perhaps evidenced by the retelling of a personal story, or (to twisted amusement) the repetition of an inadvertent typo that fooled the author’s spell-check and annoyingly escaped a gazillion proofreads.

Lifting someone else’s original work from the Internet is rife – and really easy to do. So how can you combat your own materials being copied and used without permission? Although the legal backdrop sets the scene for the steps you can take, inevitably, there’s a lot more going on in the picture. So I thought I’d explain a bit about copyright – what it is, what it isn’t and how it actually works in a wider context.

1. Copyright Is Not the Only Consideration.

Copyright is a type of intellectual property right, relevant to written content, whether this is produced in hard-copy or online. However, there is a whole host of other factors to consider, such as the viability of enforcing these rights, the wider concept of plagiarism, pragmatic positions, applying limited resources, marketing wisdom, personal values, business values, brand values, client contentment and wider public perceptions. Undoubtedly, there are others I haven’t listed here.

2. Is Your Work Protected By Copyright?

UK copyright legislation recognises specific categories of work as copyright works, including “original literary works”. But legal language doesn’t always correspond to everyday meanings.

The word “original” is not intended in any breath-taking sense; it simply means is not copied and that “some degree of skill, labour and judgment has been exercised” in creating it.

Similarly, the term “literary” extends to almost any written work. Website copy, blog posts, course materials, books and even shopping lists fall within this category. So, basically, if you haven’t copied your online content and some degree of skill labour and judgment has gone into writing it, it is an “original literary work” and falls under copyright law.

3. Is There Copyright In a Title?

When it comes to titles, the law denotes some sort of critical mass. In the 1881 case of Dick v Yates, the courts held that the book title Splendid Misery was too short to comprise a literary work, and “there’s no copyright in a title” has been accepted for well over a century.

More recently, the terrain has been shifting. The European Court of Justice recently commented that copyright can exist in an extract of just 11 consecutive words, and in following their reasoning, the UK courts have since ruled that the headline of a news article can be a literary work, looking to the overall originality and creative effort exercised by the author. However, they also said that a single word was still too short. Putting the two decisions together, it seems possible that a title of two or more words may now be capable of qualifying as a literary work. For the time being, this leaves us with titles sitting in a grey area.

4. Copyright Is an AUTOMATIC Right.

I quiver every time someone asks, “Have you copyrighted that? because suggesting some sort of action denies the very nature of copyright, which springs automatically into existence the moment you manifest your work.

You don’t have to register or go through any formality to obtain copyright. You don’t even have to use the copyright symbol (although combining it with your name and the date of creation in a copyright notice, is useful and at no cost to you in letting others know that you are the copyright owner).

5. What Rights Does Copyright Give You in Your Online Written Content?

Copyright gives you the right to prevent others from doing certain acts, set out in UK copyright legislation as the restricted acts. These include copying the work or parts of it, distributing, sharing or adapting it without your permission.

There is a myth that if you make your work available online, it is in the public domain and free for all to do as they please. NOT SO. In legal terms, the public domain only refers to works in which copyright has expired or has been formally relinquished by the copyright owner.

Copyright in written works lasts for the life of the author plus seventy years, so if you’re still alive while you’re reading this, you have some control over your works as others need your permission to carry out the restricted acts.

6. What Permission Do Others Have to Use Your Online Written Content?

In the late 90s, as use of the Internet was opening out to us all, Internet lawyers started to evolve, often from intellectual property and transactional lawyers. A key issue we discussed was whether, when and how the mere act of making material available online gave an “implied licence” for use, and the extent of what that licence might be. The advice generally given to clients was to use express provisions, copyright notices and legends to clarify doubts.

Many of us give permission as we encourage others to share our online content with social media and email share buttons. However, making our material “freely available” and saying it is “free to share” is not the same thing as saying it is “free to use“. Express wording is as useful as ever, and it’s good practice to supplement the use of share buttons with wording at the end of a page or post setting out the permissions you are giving and any conditions; for example, that others reproduce the article in its entirety and/or acknowledge you as the author and/or link back to your site and/or that use is non-commercial only.

You can give basic written permissions as part of a copyright legend. For details on how to do this, see my article “How to Use a Copyright Legend to Manage Your Written Content”.

7. The Boundaries of Permission and the Grace of Directness

One of the 7 Graces of Marketing is the “Grace of Directness”. This is the Grace that encourages straight-forwardness and simplicity in how we communicate in our business and marketing dealings. The Graces of Directness is especially pertinent to legal niceties. We demonstrate the Grace of Directness when we use express written devices such as notices, legends or contractual provisions wherever possible, as well as when we steer clear of “legalese’ and use plain language instead.

8. Copyright Does Not Protect IDEAS.

Copyright protection attaches to the physical manifestation of a work and NOT a bare idea. An idea in a written work can also be pulled out and reused. It is only the work itself that cannot be copied.

Here’s an example. Following the publication of Dan Brown’s The Da Vinci Code, co-authors Michael Baigent and Richard Leigh claimed that Brown had taken elements of their earlier book The Holy Blood and the Holy Grail. Both books were based on a supposition that Jesus and Mary Magdalene had married, had children and that their bloodline is protected by a secret society. Baigent and Leigh brought an unsuccessful legal action against Brown in the High Court, followed by an appeal to the Court of Appeal which was rejected (you can read about that ruling HERE). While their book was protected by copyright, the underlying ideas were not, and the Court described them as “generalised propositions” and “being at too high a level of abstraction.”

Ideas cannot be owned; they are free to fly.

9. Our Ideas Are Not Always as Unique as We May Believe Them to Be.

Have you ever met someone who gripes about other people swiping their ideas? Having strikingly similar ideas, and sometimes even experiences, happens much more frequently than we are perhaps prepared to imagine.

Years ago, when working at a TV production company, I learned why most production companies refuse to sign non-disclosure agreements (NDAs), where the company agrees not use the brilliant idea that you or I share with them. However, the glaring truth of my experience is that these allegedly “unique ideas” often arrived from different sources separated by a mere slither of time. Almost pairs to the ark and buses in threes. Veritable batches. Perhaps ideas are like trends: sometimes we make a choice, only to find out that so has everyone else, but we imagine we were the first.

10. Enforcing Copyright May Not Be the Best Use of Your Resources.

Copyright infringement takes place when someone carries out a restricted act without the copyright owner’s permission, with some fairly limited exceptions. However, the overall effectiveness of copyright relies to a large extent on others not infringing it, as enforcing it can be an uphill struggle.

Where someone infringes your copyright, unless you can resolve the issue with them directly, enforcing it is through the courts, with the incumbent financial and emotional costs as well as time and energy expended. All resources that could be put to more productive and fulfilling use and moving your business forward.

Going to court does NOT come with a guarantee of success; and winning at court can be a pyrrhic victory. A good (and ethical) lawyer will always be clear with you as to the potential financial costs and risks involved as well as the uncertainty of outcome as you contemplate litigation.

11. Taking a Wider View of Copyright Enforcement

Copyright law does not sit neatly with advances in technology or many social media practices. As we know, digital content proliferates like wildfire, and attempts to curb it can be as effective as spitting. Alan Stevens, an expert on reputation management, states:

“I know from Google Alerts that all of my books are available for free download on dozens of sites. Legal action is pointless for several reasons, so I see it simply as marketing. People still buy the printed and Kindle versions, so if a few can be bothered to seek out free downloads and run the risk of viruses, good luck to them.”

He raises the possibility that disseminating content, even where it hasn’t been authorised by the copyright owner, may actually benefit your business in terms of marketing exposure.

In his seminal paper, “Piracy is Progressive Taxation, and Other Thoughts on the Evolution of Online Distribution”, publisher Tim O’Reilly analyses the effects of piracy on online publishing and comments that “shoplifting is a bigger threat than piracy” and remarks that both are an annoying cost of doing business.

Your stance on how you contain your content, whether you encourage some level of sharing or rigorously police your copyright and the approach you take, reflect on your business values, which may include your personal values. Is your position congruent with these?

13. Plagiarism. Ethically Envisioned and Sometimes Embodied In Codes.

Plagiarism broadly relates to the claiming of another’s ideas as one’s own. However, it’s not a legal concept, but an ethical one. As such, it lacks formal definition and what we label plagiarism is often highly subjective. I’ve observed that there isn’t a general consensus of what amounts to “being plagiarised,” and the standard varies amongst different peer groups. Where the interests, needs and concerns of a particular group are similar, what amounts to plagiarism and the consequences may be mapped out in formal requirements and codes of conduct. For example, many institutions of Higher Education have strict guidelines on what constitutes plagiarism, bolstered by software to detect it. However, these do not have force of law.

Another example is the Professional Speaking Association, a membership organisation for professional speakers. Its ethical guidelines include a requirement that members “avoid using materials, titles and themes originated by others, either orally or in writing, unless approved by the originator.” The code recognises the value of knowledge and currency of ideas, within a profession that values expert knowledge, personal stories and genuine life lessons. However, as with any code, it has to be applied to be effective, and has an inbuilt limitation because it relies on individuals flagging up aberrations. In its own right, this action does not sit neatly with the ethos of a membership organisation; and as ever, it is difficult to know when the line has been crossed.

What constitutes an expert is subject to lively debate. To me, an expert is one who has garnered, applied, questioned and played with knowledge in the field; and often built on it, combined it, customised it. It is not, someone who merely regurgitates or conveys words and ideas. Although, of course, a quick Google search usually shows how widespread any idea actually is.

It’s so difficult. While being plagiarised can feel like a theft from the soul, its occurrence may not be a universal truth; and rendering a misplaced accusation of plagiarism is perhaps an indictment of another’s soul. Legally, calling someone else a plagiarist may also be defamatory. So, there isn’t a singular answer.

13. Giving Credit to Others and the Grace of Connection

Thankfully, we all know (I hope) people who express gratitude to others for ideas, inspirations and influences and openly credit them when they can. Being acknowledged and appreciated goes further than creating warm, fuzzy feelings. It makes sound business sense.

We also know that “people buy from people”. Many formal business networks stress the importance of connecting with others and allowing the relationship to grow; and not jumping straight in to sell. For example, in member trainings, business and social networking expert and past-regional head of Athena Central London, Marilena Narbona, emphasises the wisdom of cultivating and nurturing relationships. Clearly, acknowledging the contribution of others does this, in a way that carelessly or competitively ignoring it doesn’t.

Within the 7 Graces, this practice relates to the “Grace of Connection” and fostering a real community where we value our interactions and relationships with others, and where resources – including knowledge – are treated with respect so that both can be sustained for the good of the whole.

The secret to whether we grow a bountiful garden or tangleweed can lie in whether or not we give due credit to others.

In Conclusion

Safeguarding one’s online written content goes beyond a relentless insistence on enforcing copyright. There is a multitude of other factors that are prone to fall out as we untangle what appears as unauthorised copying and all of these are relevant as we decide whether and how to share or hoard our written content.

I encourage taking an holistic view of your business, including its “dharma”, which 7 Graces Founder Lynn Serafinn describes as the intrinsic purpose of our business, and how it serves both our own needs and those of society. To me, this means considering personal ethics, business and brand values, inner wisdom, relationship with others, as much or more than what the law says or being solely driven by increased profit margins.

I’d love to know your magic formula. Please leave me a comment below.

Until next time,

Lubna Gem Arielle
15 April 2014

Lubna Gem ArielleLUBNA GEM ARIELLE is a consultant lecturer in law at Sotheby’s Institute of Art and Birkbeck (University of London), professional speaker and writer/presenter for Legal Network Television. She is also a creative practitioner exploring how we share stories, knowledge and information; and the founder of Six Minute Legal Bites, making law accessible to artists and creative entrepreneurs. Lubna is a graduate of the 7 Graces Foundation of Ethical Marketing programme, and guest blogger for the 7 Graces of Marketing.

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Lynn Serafinn author of The 7 Graces of Marketing LYNN SERAFINN, MAED, CPCC is a certified, award-winning coach, teacher, marketer, social media expert, radio host, speaker and author of the number one bestseller The 7 Graces of Marketing — How to Heal Humanity and the Planet by Changing the Way We Sell and Tweep-e-licious! 158 Twitter Tips & Strategies for Writers, Social Entrepreneurs & Changemakers Who Want to Market their Business Ethically. She is listed in the Top 20 of the Top Marketing Authors on Twitter by Social Media Magazine and was a finalist for the prestigious Brit Writers Awards. She also received the eLit Book Awards Silver Medal in Humanitarian and Ecological Social Affairs, as well as the Bronze Medal in Business and Sales. Lynn’s eclectic approach to marketing incorporates her vast professional experience in the music industry and the educational sector along with more than two decades of study and practice of the spirituality of India. Her innovative marketing campaigns have produced a long list of bestselling non-fiction authors through her company Spirit Authors.

Lynn is also the Founder of the 7 Graces Project CIC, a not-for-profit social enterprise created to train, support, mentor and inspire independent business owners to market their business ethically, serve society and planet, and restore all that is best about humanity.

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