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This page looks at intellectual property aspects of letters,
email and postings to newsgroups and virtual conferences.
It covers -
the killer app?
We've suggested in our detailed profile
of electronic mail that it's currently the "killer
app" on the internet, the feature that is most valued
by most people.
Email does not exist in a copyright vacuum, although it
is common for people to forward messages and to incorporate
(often without acknowledgement) text from online publications.
copyright in letters
A handwritten letter is covered by copyright. And so is
a typewritten one. Generally, the recipient of the letter
owns the paper and ink. The author (or employer, if it's
written on their behalf) owns the intellectual property
in the letter. When you send the letter you don't necessarily
relinquish the copyright: you merely give away the paper.
One effect has been that literary figures - cantankerous
or otherwise - such as TS Eliot, JD Salinger and Patrick
White could exert some control over biographers. As Ian
Hamilton recounts In Search Of J D Salinger (London:
Heinemann 1988), the famously reclusive author stymied
an attempted biography by refusing permission to print
his letters or publish extensive quotes. Hamilton could
read the letters - in academic archives and private collections
- but not publish.
Copyright protection for old-fashioned letters is automatic
the moment the ink hits the paper. It does not depend
on the quality of the prose.
copyright in email
What about email? No ink, no paper, and recipients who
often think nothing of forwarding to others (and so on
adfinitum) or having fun with cut-&-paste. The federal
Attorney-General indicated that the new Australian copyright
legislation, effective 5 March 2001, provides protection
for email. Online does not, to some people's surprise,
One response to the resultant brouhaha is both simple
and practical: indicate in your email if you do not wish
it forwarded or otherwise published. Some organisations
and individuals, particularly law firms, already include
such statements as a tail for every formal communication.
It is an axiom that email created in the course of employment
is the intellectual property of the employer. That is
consistent with the principle that copyright in letters,
memoranda, notes, procedural manuals or other works created
in the course of employment belongs to the employer -
rather than the author - unless otherwise agreed.
What of personal email created using corporate facilities,
especially using a corporate rather than personal address?
Some US organisations have asserted ownership of all communications
created using their networks, with employees in some instances
being explicitly informed that a condition for any use
of a corporate device and connectivity is acceptance that
the employer owns the resultant content. There is little
case law and assertion of ownership is contentious, with
some observers commenting that ownership = acceptance
of liability. In response, some risk-averse - or merely
risk-conscious - organisations have formally alerted staff/agents
that personal use of networks is forbidden and that the
organisation is not liable for such use.
It should be noted that some online fora require assignment
of copyright as a condition of participation.
That is consistent with offline models. Newspapers, scholarly
journals and other serials generally indicate that publication
of letter submitted to a 'letter to the editor' or 'correspondence'
feature involves the author of that communication relinquishing
some or all intellectual property rights over the letter.
The publisher is able to republish the item without further
permission by (or notice to) the author.
Most newspapers similarly indicate that they become the
owners of all email sent to the 'letters to the editor'
address or otherwise intended for publication.
news and news services
Journalism is not situated outside copyright law. Writing
and photos in newspapers and journals (for example the
Sydney Morning Herald, the Economist,
Vogue, Playboy and Farm Weekly)
is protected; so is news, current affairs and other items
in radio and television broadcasts or narrowcasts.
Copyright legislation, such the Australian Copyright Act,
does however make special provision for journalism, typically
through defences against infringement on the basis of
reporting, criticism and review.
Those defences allow unauthorisedv and unremunerated quotation,
for the public good, by authors and publishers. Importantly,
the quotation must be reasonable (something that varies
from jurisdiction to jurisdiction and reflects the specific
circumstances). Mere assertion that copyring was done
for the purposes of journalism (and/or was on a non-commercial
basis) thus does not automatically permit someone to reproduce
a news item, an entire newspaper or a whole radio/television
Search engines and electronic news services have relied
on those defences in excerpting content from web sites
maintained by newspaper publishers and other media groups.
In some instances copying has gone beyond excerpting (and
a link to the original material on that publisher's site),
with wholesale copying of material. Such copying appears
to be common in some newsgroups - with individuals cutting
and pasting entire articles, sometimes without any link
or indeed without any attribution. Copying of video for
provision via sites such as YouTube is also common. Both
practices are in principle breaches of Australian copyright
protection (and of law in other jurisdictions) but there
has not been extensive litigation.
It is useful to also recognise that some news and other
reporting/analysis is disseminated on a syndicated or
other basis under contract, with the rights owner licensing
to the content to another publisher/distributor and/or
placing restrictions on use by a consumer. Misuse potentially
involves breaches of contract law rather than merely copyright
and trade mark law.
US lawyer Thomas Field highlighted some of the issues
in his 1999 article
for the Journal of Electronic Publishing.
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