Canberra
Australian Capital Territory
7 Jan 2018

Black and White

In years to come, we’ll probably laugh when we look back at these Trumpian days, when people believed, that if they just believed hard enough, then black would be white.

The days of fake news and alternative facts, when what was written down in black and white could be denied, if one said it often enough and loud enough.

On that note, let us consider the facts of Copyright law.

The accepted reality is that although all of the words on this page are found in the dictionary, I have arranged them in a particular order, and although each individual word is public property, the whole of the text is covered by copyright, and if someone copies and publishes this text without obtaining my permission, they may have committed a crime.

One law to rule them all

You don’t have to be a registered writer or author or journalist to have work protected by copyright. If your five-year-old daughter brings home a ten-word story from kindergarten, or even just draws on the kitchen wall with crayons, that work is copyright.

In fact, some of the shortest and simplest of all written works are protected by copyright.

There are two hundred words in this book. Here are some of them:

One Sunday morning the warm sun came up and -pop! — out of the egg
came a tiny and very hungry caterpillar.

On Monday
he ate through
one apple.

But wait, I hear you say, aren’t you breaching copyright by republishing a whole sixth of the book?

Fair use not foul

Well, no. Even though there’s a big chunk of the text quoted word for word, there are various exemptions I can use to copy a limited amount. One of them is called “fair dealing for review”, and if I review or criticise a copyrighted work, I can quote a small part of it to give a taste of what the entire work is like. Sort of like watching a trailer for a movie. You don’t have to rely on my saying the book is good or bad, you can actually read a part of it, enough to get a feel for the style.

In this case, The Very Hungry Caterpillar is a classic children’s book. First published in 1969, it has sold a staggering 30 000 000 copies since then, making it one of the great bestsellers. That’s one sale every minute since publication nearly fifty years ago. It has been translated into 40 languages, adapted for television and released on DVD, and there may even be a Broadway musical. George W Bush named it as his favourite childhood book, despite having reached his mid-twenties by the time it was published.

Perhaps he remembered reading it to his own children. I’ve certainly done that and enjoyed it immensely. Kids love it. It has a cute and colourful protagonist who munches his way through various foods on successive days of the week. An apple on Monday, two pears on Tuesday and so on. Lots of repetition there. Kids love that. The book itself has holes punched through the stiff pages as if the very hungry caterpillar has actually eaten through the foods illustrated in the book. There is a crisis when, on Saturday, the caterpillar chomps his way through ten delicious foods including a lollipop, watermelon, and a cupcake. And a pickle.

He develops a stomach-ache. Must have been the pickle. Will he survive?

He does! He has a health day on Sunday, biting his way through a green leaf, spinning a cocoon and… well, I won’t spoil the delightful surprise ending.

The book is full of repetition and colour, but best of all, it teaches counting, the days of the week, types of food and their names, and the Lepidoptera lifecycle. Heartily recommended. If you are a kid between the ages of two or twenty-five or have children in that range, rush off and buy a copy, using the link I have helpfully provided above.

Second-hand news and other deals

There’s another example of Fair dealing, for reporting news stories. I can quote from a political speech, for example. Not the whole speech – I want to have my readers browsing rather than drowsing – but some of the better bits. It is commonplace for news stories in one media outlet to quote original stories in other outlets, without any need to obtain prior permission.

Permission is not required for fair use or fair dealing. Let’s look at this information sheet (Permission – Do I Need It?) from the Australian Copyright Council, which states,

Copyright issues don’t arise unless you are using an important, distinctive or essential part of copyright Material. Note that this may be a small part of the material. … There are a number of situations in which permission to use copyright material is not required. In brief, the exceptions include: • “Fair dealing” in copyright material for the following purposes: criticism or review; parody or satire; or reporting news. …

From the same source, another information sheet (Fair Dealing: What Can I Use Without Permission) gives more details on what fair dealing is:

People can use copyright material for the purpose of criticism or review without infringing copyright, provided they acknowledge the author and title of the work, and provided the dealing is “fair”. The Federal Court has stated that “criticism and review” involves making a judgment of the material concerned, or of the underlying ideas. Criticism and review may be strongly expressed, and may be expressed humorously, and need not be balanced. The defence can apply where the criticism or review takes place in a commercial context, such as in published books or newspapers or on commercial television.

and,

Copyright material may be used in reporting news in a newspaper, magazine (similar periodical), in a film, or by means of a broadcast, provided the use is “fair”. The author and title of the work must be acknowledged. The Federal Court has held that “news” is not restricted to current events. For example, old material, or footage that was never related to a current event, may be relevant to current news events.

OK, why are you boring us with this stuff?

Fair question. Last year I began moving from the traditional travel blog model towards a news and review site. The thing is, there are just too many travel blogs around – like thousands of them – and they are all alike. The bloggers all read the same “how-to-blog” guides and they hang around on the same Facebook groups, swapping likes and following each other, and trying to SEO their way to glory.

I get weary of posts with titles like “Ten Best Things to Do in Queenstown”, or “A Family Day Out in Paris”, or “Packing Tips for Mexico”. The poor old blogger has cranked out a post, and it’s got a list of things to do, places to see, stuff to eat, and a bunch of photographs of indifferent quality. Every post has a slew of social media icons, and each post is dutifully shared and liked on various social media platforms, and pardon me, but I have better things to do with my time than read about the meal someone had – insert iPhone shot of overpriced tourist paella – and the wonderful old church and its carved wooden saints and the hard seats in the railway station.

A few blogs stand out because the author knows how to entertain as well as inform, how to swing a decent camera about, and they aren’t so bloody exactly the same as everyone else.

I’m facing an uphill battle. Does anybody really want to know, in their thousands, what I did on a day trip out of Lisbon two years back? Are they going to make me rich by clicking on my affiliate links and buying stuff?

And when I’m actually on the road – and I do get to go to some cool places – the internet is as slow as a wet weekend, I’m worn out from walking, and all my plans to live-blog the adventure fall in a heap. Quite frankly, I’d rather enjoy my holiday in the moment.

So I made the decision to put my own stuff in the slow lane, to find travel material that I like and think is worth reading, and point my readers to it. My blog is now full of posts where I’ll quote another blogger or a news source, with a paragraph of text, a low-resolution photograph, and a fistful of links to the original material. All under the fair use provisions of copyright.

My traffic has taken off. Simple as that.

Send in the Clowns

I’ve had three complaints. To a man, they make the same claims.

1. You’ve stolen all my stuff.
2. You didn’t get permission.
3. This is illegal under copyright law.
4. You’ve copied my work and pretending it’s your own.
5. Delete your posts and never do this again.

My responses:

1. No. I selected one paragraph out of twenty, one image out of a dozen and made it a quarter of the size. I’ve also added ten paragraphs of my own material.
2. Yes, but I don’t need permission. See above.
3. No, it’s covered by the fair use exemptions, which I have scrupulously followed. It’s legal. See above. If you think I’ve used more than I should, we can work something out. Talk with me.
4. No. I copied some of your work, and I’ve attributed every bit of that to you and your site with clickable links. Nobody is going to think it’s my work when it has your name on three times and links back to your site three more times. Honestly, if I was going to steal your stuff, do you think I’d be idiot enough to do that? Geez.
5. No. I put time and effort into my material, which reviews yours and quotes a tiny and legal portion. I know the law, and you clearly do not. Cease your bullying.
6. If you have a problem with me using your stuff, how come you don’t have a problem with Flipboard, Pinterest, Facebook, Stumbleupon, Tumblr and so on, all of which use your images and text to direct traffic to your site? Which, I might point out, I’m also sending you pageviews. Don’t mention it.
7. Go read up on copyright law, get some legal advice if you want, lodge a DMCA takedown notice with my host, go through the process and act like an adult. Please.

One person lodged a DMCA takedown notice, I filed a counter-notice claiming fair use, and my host declined to take action. Because I was in the right.

If, instead of blustering and bullying, these people had taken the trouble to read up on copyright law and discuss the matter with me based on the facts instead of ignorance, then who knows? Maybe I might have made some changes in my post.

So why did we have to sit through all this stuff?

Because it will, as sure as eggs are eggs, come up again, and I can just point to this post and tell them to get back to me when they have read it.

Pete

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