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When
you first start selling at online auction sites, you might not
think that you'll need to know the ins and outs of copyright
law. Well, you certainly don't have to be an expert, but there
are a few basics you should be aware of. Read on for a general
overview of copyright as well as more specific information
geared toward the online auction user.
Copyright
101
Copyright law protects original "works of authorship"
that are "fixed in a tangible medium of expression."
Per the Copyright Act of 1976, that includes the following:
literary works (novels, magazine articles, CD-ROMs, computer
software); dramatic works (plays, operas); pantomimes and
choreographic works (ballets, mime works); pictorial, graphic,
and sculptural works (paintings, photographs, graphic art);
motion pictures and other audiovisual works (movies, TV,
multimedia works); and sound recordings (recordings of music,
sound, or words).
Copyright protects a work's
expression, not the ideas or facts on which it's based. Example:
a novel or computer game about a young prince's revenge against
his evil stepfather can be copyrighted, but the basic revenge
idea behind the story line can't. The following are not
protected under copyright law: titles, names, short phrases,
slogans, procedures, principles, discoveries, and devices. Brand
names, slogans, and phrases used in conjunction with a product
or service can be protected under trademark
law.
Copyright,
the Internet, and Auction Sites
Work that appears on the Internet--including auction sites--is
protected under copyright law. Content posted on the Web does
not, as some people believe, automatically fall into the broad
entity known as public domain. Most of what you come across on
the Internet is eligible for copyright protection--the text of
Web pages, ASCII text, documents, emails, Usenet messages, sound
files, etc. In regards to possible copyright violations on
auction sites, what sellers need to worry about most is how
copyright issues affect auction listings, which include text,
photographs, and/or images, as well as the names or trademarks
of companies.
With that in mind, there are two
potential areas of concern for sellers. First, do not copy item
descriptions from brochures, catalogues, articles, or any other
original sources. You can, however, include the same
information. Remember, ideas or facts are not copyrightable. If
you're selling a laptop, you can still state the system
requirements and other pertinent information, even though that
same factual information appears elsewhere. Second, if you are
going to include a photograph with your auction, take it
yourself. Do not use an image from a manufacturer's Web site or
scan a photo from a magazine. Doing your own photos not only
gives your buyers a more honest presentation of the merchandise
you're selling, but also it will help you avoid possible
copyright infringement. That's right--theoretically, you could
be guilty of copyright violation if you lift an image from
another source, such as another Web site.
Would a company or individual take
action against someone who included a copyrighted photo in his
or her auction? Most likely, no; nonetheless, it's a
possibility. The legal experts Vendio spoke with advise the
obvious: Do not copy text, pictures, or any other so-called
creative works unless you have permission.
The
Issue of Auction Listings
Is an auction listing copyrightable? Moreover, who
"owns" an auction listing? The site or the seller? To
the extent that the information given in an auction description
is factual in nature, no particular entity owns it--not the
seller, not the auction site on which the auction is hosted. The
general industry standard is that sites do not assume copyright
control. User agreements state that auction sites have the right
to post a listing but they don't take ownership. Listings are
thus considered public domain, according to the legal experts
Vendio interviewed. But this brings up an interesting question:
If someone copies your auction description verbatim and it's
considered to be part of public domain, then is it possible to
claim copyright infringement?
It's a tricky issue. Again, it depends
on the information included in the listing. Provided that the
text is fact based, this blatant theft would not necessarily
constitute copyright violation (unless, say, you've published an
article about early American stamps and have included it or
excerpts of it in your listing). On the other hand, the person
who appropriates your auction listing could be guilty of several
other legal infractions, including false advertising, fraud,
false designation of origin, or unfair competition. If it's
proven that a seller has appropriated another seller's listing
without the proper permission, auction sites will shut down the
auction in question and perhaps even suspend the guilty party's
registration.
Automatic
Protection
Filing for a copyright with the U.S. Copyright Office is only a
legal formality. As of 1989, the author or creator of a work is
automatically protected once the work is created. So don't
assume that something exists in public domain (meaning it can be
copied freely) and that it's OK to "borrow" text or a
photo just because you don't see a copyright notice. There is
something called the "fair use" rule, which stipulates
that someone may make "limited use" of another's
expression if it's used for research, commentary, education, or
somehow benefits society. However, it's a complicated doctrine
and you'd still potentially be liable. Don't proceed without the
proper permission or legal advice.
For more information on copyright
issues, visit the Web site of the U.S.
Copyright Office.
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by Vendio Services
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