A question from one of our followers: Would I be infringing on copyright if I were to do free webinars (mini course style) on popular business books? I imagine providing chapter x chapter walkthroughs, infographics and study guides around the current books that I’m diggin– ALL FREE! I’m hoping to create a community around folks that love biz books but struggle with finding the time to read + don’t enjoy reading in isolation.
There are a few aspects to explore when looking into this question, but first and foremost let’s look at copyright infringement:
Providing Free Webinars, Summaries, and Guides on Copyrighted Works
The easy accessibility of various copyrighted works online has lead to a lot of confusion about what is and what is not copyright infringement. While some copyright infringement issues are very simple, most walk the line of “maybe, maybe not.” So how do you know if you are staying on the legal side of that line? Let’s start with the basics and then build on what the exceptions are.
It is copyright refresher time! The U.S. Copyright Office defines “copyright” as, “A form of protection provided by the laws of the United States for ‘original works of authorship’, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations.” If you are the creator of the work or authorship (work) you control the future uses of the work (e.g., reproduction and distribution). This right is automatically created the very second the work is created and registration with the U.S. Copyright Office is not required.
Not everything can be protected by copyright. Some examples of things that can’t be copyrighted include:
- S. laws
- Names, Titles, and Short phrases
Copyright infringement occurs when someone other than the creator of the work uses it without permission from the creator. For example, if you use a graphic from a comic book on your website without permission from the copyright owner, you have very likely committed copyright infringement. Remember, simply giving credit to the copyright holder is not enough to avoid copyright infringement.
Using a copyrighted work is not infringement if it falls under one of the exceptions that allow unlicensed use of copyrighted works.
Using Copyrighted Works
Now that you know the basics of what a copyright is and what copyright infringement is, you must be wondering if copyrighted works can ever be used. Of course! The first way is to gain permission from the owner of the copyright, otherwise known as license. The second way is to use the work in a manner that falls under one of the exceptions.
The main exceptions to copyright protections are:
The Public Domain Exception
The Public Domain refers to works that are not protected by a copyright or other protective law. These works may have had a copyright that expired or the owner forewent the copyright and cannot be re-copyrighted by another.
The Fair Use Exception
The Fair Use exception is meant to promote freedom of expression. This exception allows the unlicensed use of copyrighted works for specific uses, such as criticism, teaching, and news reporting.
There are four factors laid out in §107 of Title 17 U.S.C. that are used to determine whether an unlicensed use of a copyrighted work falls under the fair use exception. They are:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
A court’s decision on whether Fair Use applies is decided on a case-by-case basis using the above four factors and any additional factors that may be applicable in the situation.
The Classroom Use Exception
The Fair Use exception notes the importance of allowing the use of copyrighted works in education. As an expansion of this idea, copyright laws have made clear exceptions that allow educators to perform or display copyrighted materials in the classroom. Specifically, in order to qualify under the exception you must be:
- In a classroom;
- Be there in person; and
- Be at a non-profit educational institution.
This exception does not extend to making copies and distributing even though it allows the performance or display of any copyrighted material.
Although this exception is broad for face-to-face education, it was restrictive for online courses. In 2002 the TEACH (Technology Education and Copyright Harmonization) Act was passed and expanded the exception for both face-to-face education and online education.
Copyright In Action: Our Scenario
Let’s apply this base knowledge to a scenario. Let’s say you want to begin a website where you will provide free webinars about popular business books. You intend to create summaries of each chapter, study guides, and infographics, with the idea that a community will be born of people who don’t have time to read the full book can learn the basics and discuss them. Is this copyright infringement or not?
Of course the answer is maybe. Let’s lay out the main issues to consider in this scenario:
- Free: Just because it is free does not make it automatically legal. Whether you charge or not has no bearing on whether you have permission to use the copyrighted work in the manner you intend to. Where charging does have bearing is in a Fair Use exception determination, but it is just one of the four main factors.
- Webinar: Whether a webinar regarding a copyrighted work would be considered infringement depends on how much of the copyrighted work is being used. If you are presenting, disseminating, and discussing your ideas on the book, you may be safe. If you are just providing large portions of text from the book, you are probably committing copyright infringement.
Further, if you happen to be providing the free webinar in a non-profit educational institution, then you may be able to utilize the classroom use exception through the TEACH Act’s online expansion of the exception. Remember, the classroom exception and TEACH Act have specific criteria that must be met in order to qualify.
- Chapter summaries: Paraphrasing a copyrighted work without license may or may not be found to be copyright infringement. If it is sufficiently different than the original work, then it will be found to be a ‘derivative work’. This means that your added work has turned the original work into a completely different work and thus is not copyright infringement. The works that are found to be derivative are largely critiques or reviews rather than simple summaries.
In cases where the closeness of the original work and paraphrased work is unavoidable, the use may be allowable under the merger doctrine. This generally only applies in factual/scientific scenarios.
If the paraphrasing is not found to be a derivative work or fall under the merger doctrine, than it must fall under another exception in order to be used without permission from the copyright holder.
- Study Guide: Creating a study guide without license may or may not be copyright infringement, largely depending on what the topic is. For example, as facts cannot be copyrighted, you can create a study guide on the periodic table without license. On the flip side, you probably will run into a copyright infringement issue if you are including copies of works of art into the guide.
- Infographics: Just as with the study guide, creating an infographic without license may or may not be copyright infringement depending on the content. If you are using information that is not copyrightable, then you are probably safe; but if you are only using copyrighted content without falling under an exception, then you are probably infringing on the copyright.
- Discussion: Discussion about a copyrighted work is generally not copyright infringement. Use of copyrighted work without license in this instance will likely fall under the Fair Use exception as critique.
Moral of the Story
The more you make something “yours”, the more likely you will be not be committing copyright infringement. Want to be safe? Ask the copyright owner for permission!