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International Law

: Wise Law Blog

Sorry: the Web Is Not Public Domain

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Recently, a writer's web-published (and appetite-inducing) article about apple pie was reprinted in Cooks Source magazine. The only problem was that the author hadn't given permission for the article's reproduction, so the author contacted the magazine and requested an apology and a small donation to the Columbia School of Journalism.

The editor's response is probably destined to become one of those Classic Internet Moments (tm):

But honestly Monica, the web is considered "public domain" and you should be happy we just didn't "lift" your whole article and put someone else's name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me... ALWAYS for free!

A few points should be made here.

1.) The web isn't "public domain." It never has been, despite the availability of much public domain work on the web. In order for a work to fall into the public domain, the creator's intellectual property rights - generally copyright in the case of written works - have to be either expressly forfeited or must expire over time. "Putting it on the web" satisfies neither of these requirements.

2.) Although copyright can be registered, you don't need to register copyright for it to exist: you just need proof of original authorship, preferably with a date stamp. (Although it's fallen out of favour with the advent of better technology, mailing yourself a copy of a manuscript and then keeping the sealed letter is the classic "homemade" proof of copyright, since the postmark will date when the work was created.) In this case, the automatic date-stamps generated when the author created the web page are good enough.

3.) Even if the work was in the public domain - which it wasn't - the creator's moral rights would have remained intact, chief among which is the right to claim authorship of the work. This is elementary knowledge for anybody working in publishing, which is why the editor's suggestion that they would have been entirely justified if they chose to "put someone else's name on it" is shocking.

4.) Now, some might point out that a recipe cannot have copyright, as copyright does not protect lists of ingredients or sets of directions. However, copyright can protect the expression of the recipe if the expression is distinct enough, and certainly in this case the expression of the recipe as part of a larger non-fiction article qualifies for copyright.

5.) "Just because other people might offer you free labour doesn't mean everybody has to" should be one of those things that should be obvious as a matter of course, but apparently in this case it was not. Certainly the comments on Cooks Source' Facebook page is giving them a firm schooling in this regard.

- Christopher Bird, Toronto

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Full post as published by Wise Law Blog on November 04, 2010 (boomark / email).