One of the constant mysteries for me in my B2B career has been how few industry professionals understand or care about copyright and trademark issues. In practice, attitudes toward copyright seem to fall into one of two extremes: either blasé indifference or sheer timidity. As an example of the first, take the oft-encountered belief that it’s OK to use someone’s copyrighted content if you just credit the producer—especially in the case of images. Or, to swing to the other extreme, the all-too-common editorial myths that you have a legal obligation to include a ™ or ® symbol when referring to a trademark in editorial copy and that you cannot link to a Web site without permission.
Why should so many care so little about such matters? One reason may be that, until recently, there simply wasn’t much need for most people to care. For most of the 20th century, copyright was a stable, boring subject. While there were interesting issues now and then introduced by new technologies, such as photocopying or CD-ROMs , they had little impact on the everyday work of most people working in B2B.
All that, of course, has changed.
The rise of the Internet has put incredible, disruptive stress on the formerly stable copyright system. Once crucial to few outside of the legal department, copyright and related intellectual property (IP) matters are now of daily importance to everyone involved in content creation and distribution. That’s one of reasons (in addition to my long-time fascination with IP) it will be a frequent topic on this blog.
For the moment, I’ll cite just one example of the currency of IP topics, involving the concept of fair use. It comes from my favorite source of coverage of such issues lately, Michael Masnick’s blog Tech Dirt.
Although Masnick covers a wide range of legal and technology subjects, a majority of his posts deal with IP. A recent example is his item (here, with a follow-up here) on Ralph Lauren’s “bogus” DMCA takedown notice involving an absurdly Photoshopped Lauren model. Masnick cites this as an example of a takedown (i.e., using a provision of the Digital Millennium Copyright Act to force the publisher to remove the ad) that “wasn’t being used to stop infringing content, but to stifle speech.”
For practical purposes, fair use was once mostly limited to how many words your could quote from another author’s work or whether you could reuse a certain image. But as copyright and creative commons guru Lawrence Lessig has argued in a recent speech on fair use,* the concept is being challenged by changes in technology. Creation, he argues, is increasingly a conversation—that is, that the content we publish is increasingly commentary and expansion on other publishers’ content. At the same time, though, an “obsessive permission culture” is attempting to restrict the ability to hold that conversation.
Knowing what and how much we can say as publishers has never been more important than it is today. Is it OK to reproduce that ad? Do you have a right to use that product photo from a press release in an article about a recall? Do you permission to use that data table in the Web version of a print article? When do you take a stand, and go against the cautious advice of your lawyer?
In the old days, we didn’t have to face these questions very often. But now, they are part and parcel of the publishing process. As a B2B professional in the 21st century, if you aren’t thinking about these issues, you simply aren’t doing your job.
*Update—The video of Lessig’s speech is no longer online. For those with more energy than I to track it down elsewhere, here are the bibliographic details: “The Google Book Search Settlement: Static Good, Dynamic Bad?” Berkman workshop talk, Cambridge, MA, July 31, 2009.