Infringement, the legal term for violating the rights of a copyright holder, is a form of theft.  Unlike other forms of theft, such as burglary and embezzlement, many people tolerate and even practice infringement despite an otherwise Christian worldview. 

Many people have recently learned about copyright infringement through the popular media.  The Napster and Grokster cases made infringement a household term and sparked debate on the subject of peer-to-peer (P2P) file sharing and other forms of “sharing” copyrighted materials.  Unfortunately, many media sources did a poor job explaining exactly what constitutes infringement as opposed to “fair use.”

The most common forms of infringement include improper copying, distribution, performance and display of copyrighted works.  “Copying” and “use” need not rise to the level of plagiarism or complete reproduction to qualify as infringement.

Infringement does not require criminal intent – accidental infringement (“I didn’t mean to”) provides no defense.  Knowing what constitutes infringement – and fair use – of copyrighted material provides the best defense and arms writers, artists and others with the ability to avoid copyright infringement.

By law, “infringement” includes:

- Copying (or paraphrasing without proper attribution) all of a copyrighted work.

            For example: copying a CD or downloading protected music belonging to someone else.

- Copying (or paraphrasing without proper attribution) a significant portion of a copyrighted work.

            For example: copying a chapter from a copyrighted History textbook in order to “share” someone else’s book or avoid purchasing additional copies.

- Reading or otherwise gaining access to a copyrighted work and subsequently “creating” an illegally similar work.

            For example: writing a story, for publication or otherwise, in which a young man named Lukas Moonrunner and his long-lost sister, Queen Leeka, fight the evil King of the Universe named Dark Raider…

Whether or not a specific action rises to the level of infringement depends upon the specific “facts and circumstances” of the situation, the actions of the people involved and whether or not one of several “legal defenses” apply.  The most common defense, “fair use,” permits even complete copying for certain specific purposes (such as “backup” or archival copies for personal use).

Questions to ask when attempting to evaluate your own actions and those of others include:

1.  Is the original work protected by a valid copyright?

            Remember, copyright infringement involves illegal copying or use of a copyrighted work.  No valid copyright means no infringement, although legal liability may still arise from improper use of another person’s work. 

2.  Am I literally copying or paraphrasing a significant portion the copyrighted work? 

            “A significant portion” can be as little as a paragraph.

            Copying and quoting differ.  Some forms of copying are protected as “fair use” but the decision to copy should never be made lightly.

3.  Did I help or encourage someone else to infringe a copyrighted work?

            Contributory infringement – helping or encouraging someone else to infringe a copyrighted work – also carries legal liability.  You cannot legally help or encourage another to commit an illegal act.

4.   Did the amount of work copied, paraphrased or used rise to the level of “improper appropriation”?

            Did the copier take enough of the original work for a court to decide he or she took something belonging to the copyright holder?  If the copied sections are recognizable (meaning a viewer or user would recognize them as part of the original work) the copier probably took too much.

5.  Do I have a defense?

            Not all copying constitutes infringement.  The “fair use doctrine” and other defenses permit uses of copyrighted material, particularly with proper citation and attribution to the original source.

© Susan Spann, 2005