letters, email, fora and news

This page looks at intellectual property aspects of letters, email and postings to newsgroups and virtual conferences.

It covers -

• the killer app? -
• copyright in letters
• copyright in email
• online fora
• news and news services
• further reading

     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, equal copyright-free.

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.

     online fora

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 program.

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.

     further reading

US lawyer Thomas Field highlighted some of the issues in his 1999 article for the Journal of Electronic Publishing.







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