Fighting for copyright

by Luigi Benetton

Have you ever had your copyright violated? How did you react?

I had this issue a few years ago. I didn’t take it well. My consternation drove me to waste time creating Google alerts for a bunch of my published articles. I’ve since deleted those alerts for reasons I’ll explain below, but I’ve been thinking that there has to be a better way.

Copyright infringement happens for a variety of reasons. Sometimes organizations (or individuals) simply use whatever they want, copyright be damned. But I increasingly believe that ignorance of copyright contributes to infringement. So does the proliferation of content all over the Internet, accompanied by the “truthy” belief that information wants to be free.

I’ve been grappling with the issue for a second time over the past few weeks, but I still can’t find clear answers.

Copyright: a YouTube primer

Here’s a quick explanation of copyright, produced by Innovation, Science and Economic Development Canada:

My latest copyright violation

As copyright violations go, this latest one was polite. In January, I received an email from European business mediator and happiness researcher Peter Adler informing me that he had posted my article on his website. He’d delete it if it wasn’t okay with me, he said, but he’d like to keep my perspective on his site.

Well, that’s nice, I thought. It’s odd that a mediator, somebody who has likely studied law, wouldn’t grasp the notion of asking for permission before using a copyrighted work. But it’s still nice.

When life hands you lemons, look for ways to earn profit

I think I was equally nice in my reply. Instead of getting self-righteous about infringement, I took Dr. Adler’s act as a sign he might become a paying client.

I told him he could pay a recurring licensing fee or a one-time fee for unlimited use of the article on his website. I also gave him a “free use” option. He could write his own post quoting up to 200 of the 1000 words in the original article and include a box at the bottom with a link to the original article and the name of the author.

This, plus a couple more emails, resulted in… crickets. The article stayed on Dr. Adler’s site. And my self-righteous consternation started to build.

After ineffective followup, some effective followup

About a month after I sent the above email, I suggested to Dr. Adler that I would publicize this incident.

As I did the first time I’d had my copyright violated, I contacted editors at The Lawyers Daily (the successor to The Lawyers Weekly). I did not want to trouble them with this matter. But they jumped on the issue the same day I notified them. I’m told Dr. Adler replied to the publisher’s phone call (but not his initial email two days prior).

Dr. Adler ultimately deleted my article from his site and declined my offer to comment for this post.

Why was my work used without permission?

I doubt any of us know about every instance of our work being swiped. But I’m sure it’s happened to many of us. If you create well-written prose, it’s likely keyword-rich and works well for companies in certain industries.

For example, I write a trade magazine column about technology use and innovation in the legal industry. It makes sense that my columns appeal to such groups as companies that cater to the legal technology industry and professionals who want to be seen as forward-thinking.

But confusion around copyright seems to be the norm. Consider the ongoing dispute between Access Copyright and many educational institutions over whether those institutions should pay fees for the use of copyrighted works.

Why does copyright matter?

I don’t believe copyright matters for everybody. Academics like Dr. Adler have salaries they can rely on, so they don’t need to sell their writing.

But if your words are your only source of income, copyright infringement devalues your work and harms your business prospects (and income). How, you ask?

• Some freelancers resell their work and research to several clients/publications, thus increasing the value of their work on a given topic.
• When freelancers have their work, bylines and faces associated with organizations they have no stake in (or oppose) that sends mixed messages to the market about these freelancers. Those mixed signals can hurt a freelancer’s work prospects.
• Should professionally produced writing, or any creative output, be repeatedly used for free, what incentive is there to get into the business of (cough) “content production” (writing, illustration, photography, etc.)? Creatives who can’t get paid for their work will exit the business. (I’ve seen this happen.) Continue on this path, and you drastically shrink the supply side of the market.

Using Google Alerts to monitor the Internet for copyright violations

So what to do about protecting your copyright? For starters, you need to know when your copyright has been violated. Google Alerts seems like a handy tool to keep track of your intellectual property online, but I’ve found it too simplistic to handle automated monitoring for copyright infringement.

Google looks for every single word in an article. There’s no searching for snippets of the article. I could seed two or three alerts with specific phrases, but there’s no guarantee those would be the phrases to be used elsewhere without my knowledge or permission.

Max Rothschild, a copyright and digital media lawyer with the law firm Bereskin & Parr LLP, disagrees with my assessment. As he explained in an email: “For writers or anyone else preparing text-based works, it may seem simplistic but Google Alerts is a great resource to get notifications of any terms you want to monitor. You can set up alerts to monitor the use of any phrases you would like to protect, including names, titles, specific phrases, etc.”

“By contrast,” Rothschild said, “if your work is audio or visual based then it can help to get your content placed on any of the major digital service providers that employ digital fingerprinting programs (e.g. Google’s Content ID on YouTube). This type of software analyses content and matches it against anything else uploaded to the service, and so it can be a useful tool to ensure that no one else takes advantage of your works on a major platform.”

“It’s worth noting that in both these cases the services will only identify clear infringement, cases where your work has been directly copied.” Rothschild mentioned other tactics like digital watermarking, technical protection measures (TPMs) and Creative Commons licensing.

What to do when you’ve discovered copyright violation

Laws exist to enable copyright holders to sue for their rights.

“There is no hard and fast rule as to when to pursue a claim or not, but from a practical perspective it makes sense to prioritize situations where someone is willfully infringing your work, claiming credit, and making money in the process (thus damaging the market for your work),” says Max Rothschild.

But I have neither the money nor the time to do this. I was never going to fly to Europe to shake down Dr. Adler for a few bucks in court. I’m too busy to chase down copyright infringements.

Rothschild encourages freelancers to think otherwise. “Statutory damages range from $100 to $20,000 per copyrighted work infringed, depending on the type of usage (i.e. commercial or non-commercial) and the particular egregiousness of a given infringement,” he wrote in his email.

But I’m more inclined to agree with what he wrote later in that email: “it may be simpler, cheaper, and more amicable for all parties to simply resolve the situation privately, possibly foregoing payment of damages if the infringer promises to cease the infringement.”

Is there a better way for freelancers to handle infringement of their copyright?

Maybe there’s a way to make copyright violations easier to spot and deal with. That might mean using automated tools other than Google Alerts (likely fee-based) to watch over the ‘net for people making use of my work, Unlike Google Alerts, these tools would accept full texts, then monitor the Internet for matches of not just a whole text but also specific parts.

Here’s a quick list of tools to try:

• Plagspotter.com
• Copygator.com
• CyberAlert.com
• plagiarisma.net
• plagium.com
• turnitin.com

There’s also the possibility of a writers’ association making such tools less expensive for its members.

For instance, the Canadian Media Guild furnishes its members and their families with a membership to the high-quality online learning portal Lynda.com. It might do something similar to flag violations of its members’ copyright. Members could then act on violations, either on their own or with help from the association.

Still looking for answers

If you read this post to the end, I suspect copyright matters to you too. So I’ll ask you to contemplate a few questions:

• How would you have handled my situation?
• How have you handled similar situations of your own?
• What would real progress against copyright violations look like?

Let us know in the comments to this post.

Luigi Benetton is a technology and business writer based in Toronto. Follow him on Twitter at @LuigiBenetton.