[boar_d_laze]

Originally Posted by KissTC

In answer to your question. I note your apparent belief that one needs to be qualified in Law to be able to give an opinion.

Everyone is entitled to their opinion, but unless you're qualified it's not a good idea to advise other people as to the law. Perhaps I should add that I'm an attorney, although with no particular expertise in Intellectual Property (IP)

I am sure that you would understand that Law is a matter of opinion.

No, usually not. It's usually a matter of applying cut and dried rules to a particular factual situation. Opinion is seldom involved.

That is why we have Courts, so that when legal opinion differs, the Court can decide which opinion is most correct.

No. In almost every case, courts determine the facts.

I am also sure that you would be aware that 'ignorance of the Law is no excuse'. In most countries, including the U.S and here in Australia, people are duty bound to be aware of all Law that applies to them. It is a requirement that every person (of proper age and responsibility etc) form an opinion of the Law as it applies to whatever it is they are doing.

No. Wrong. "Ignorance is no excuse," means you're liable for violating the law whether you know it or not. It does not mean you are "required" to form or hold an opinion.

You, however, are implying that a person that has an opinion of Law without being formally qualified as an attorney or lawyer, is to be fround upon.

I asked whether you were giving a lay or a legal opinion. I implied that a person unqualified to opine on a fairly recondite area of the law such as international copyright would serve themselves best by not doing so and appearing a fool. No frowning. Ridi Pagliaccio .

However, the truth of the matter is that every person is duty bound to ensure that they make themselves aware of the Law and form an opinion of the Law and how it applies to them.

Where do you get this? You have no affirmative duty to make yourself aware of the law nor to form an opinion upon it. You are simply liable for your breaches, whether made with scienter or through ignorance. Your statement is the pluperfect paradigm of an imprecise statement.

As for the rest of your post, I am not going to address everything you have stated.

Because you can't. "Ay, there's the rub." The thrust of your original post was that the Berne Convention controlled IP law in the United States, and that the U.S. was limited to whatever authority the Berne Convention confeered if the U.S. sought to alter its IP law. In fact, it doesn't.

Rather, the purpose of the Berne Convention is to insure that ownership interests of IP held in one signatory nation are respected by the other signatories, and to create mechanisms to enforce them. Nothing more. The Berne Convention neither destroys, creates, nor alters the nature and extent of the ownership interests or the rights pertaining to them in any signatory nation.

However, I will correct you on a few things...

Why am I not surprised?

"You are wildly incorrect"... I did not state it as a fact. I specifically used the word "may" as in maybe, possibly, might etc. I am not aware of the matter ever being tested and therefore it remains a "may". I am sure you would understand it is not possible to be incorrect with a maybe...let alone "wildly incorrect".

You wrote, "Copyright Law is international under the Berne Convention. Every country that is a member of the Berne Convention is bound by the exact same Copyright Law...and that is almost every country." You did not use any terms of qualification, including but not necessarily limited to maybe, possibly, and might. Thus, you were not only incorrect but wildly so.

You also wrote, "My summary is correct...Copyright is AUTOMATIC." Mais non. Temporary protection is automatic. However temporary protection is not the same as a copyright. It is a stopgap which allows a creator time to finish her work and seek copyright. Had you said "protection is automatic," you would have been wildly right, and I would not have quibbled.

Copyright can be very, very complex.

My point.

Especially when there are multible owners. For example, a photo can have one owner of the image another owner of the film the image negative is on and yet another owner of the paper the image is printed on...and that is just one SIMPLE example of how complex Copyright can be! In affect a Copyright Owner might need to seek permission to use their own Copyright !

Garbled and wrong. Only one of the people in your example would own the copyright, or the copyright would be held jointly as a result of contract. Ownership means ownership in the normal sense and the owner or partnership is entitled to exercise all of the usual property rights, including alienation. For example, let's take the unlikely example of the person owning the negative but not the copyright, while the owner of the print did. That would mean the owner of the print and copyright could have copies made and sell them for gain, or give them away for public viewing, or anything else he chooses. However, the owner of the negative cannot sell prints, or even give them away for the purpose of "economic benefit." But the owner of the negative can make as many prints as he wants for his own use and even sell the negative without permission from the copyright holder. In other words, the copyright owner exercises the rights of copyright ownership, while the negative owner could not. Understand? I thought not. For clarification, let me add that in the case of a photograph, the copyright and the image are not distinguishable.

"While your list of excepted activities is correct in some respects,"...No, my short list of 3 examples is correct...It is not correct in some respects...The 3 examples are 100% correct.

In the case of verbal IP, there are limitations on how much may be quoted. In the case of visual IP, there are limitations in what and how much may be reproduced. The amount, type and form of copying determines the actual intent of the user. It is not enough to say you're reporting the news, or even to print the copied material in a legitimate newspaper. As the saying goes, "you may infer intent from action." And, in the case of IP, intent is very important. Your examples, in my opinion, were not "100% correct," because they were incompletely explained, and because the list itself was incomplete. There are other exempted activities.

It does relate to the subject matter.

When I wrote "... does not relate to the subject matter here," I was referred to copyright law as it effects recipes. That is, most recipes are not copyrightable IP. In fact they are not IP. If I was vague or ambiguous, I apologize.

If a person posts a photo here, for example, as a news announcement, then it would not breach Copyright!

Depends if the image was copyrighted and what restrictions the holder placed upon it. If the photo was theirs, than certainly not. If the photo was by Ansel Adams and reproduced without permission for purposes of gain, as for instance a "news announcement" concerning the publication of a book about Yosemite, than that would be an infringement.

"When writing on legal matters it is important to be precise"...I was.

Oy gevaldt.

In fact, I will state again, if you are not 100% sure that you are allowed to publish material, then chances are you are not (allowed).

Interesting statistical assertion. Any data upon which to base it? Or is the foundation of your assertion that non-experts find the subject of IP so confusing it's better to be safe than sorry?

You stated - "Giving credit is more a matter of ethics than of law"
I stated - "Giving credit does NOT give a right of use."

True. You did, and it doesn't.

So what is your point?

As you said, certain activities are exempted from copyright. If for instance, I use a few of your copyrighted words in an academic paper without seeking permission but giving attribution, I have not violated your copyright. That would make you wrong. On the other hand, if I quoted your unprotected words without attribution, that would make me an unethical plagiarist.

I agree with your comments regarding Admin and the Forums. However, a small correction, it is public not "private".

No, it's private. If it were publicly owned, it would be owned by the government. It is a private space open to the general public under certain conditions. However, this might be a difference between Ozzy and U.S. usage.

In closing, I will state again that it seems people are confused with the Copyright Law and how it applies to them.

True. I can think of one in particular.

People should not confuse what the U.S wants with what the Law actually is.

U.S. law controls in the U.S. The Berne Convention does not preempt U.S. law in the U.S., and for that matter in Australia. That's the point of the Berne Convention. If Disney owns Mickey Mouse in the United States, and holds a copyright in the U.S., then Oz recognizes Disney's copyright so that Disney owns Mickey Mouse in Oz. If an Ozzy copies Mickey Mouse in Oz without Disney's permission, Disney will have appropriate venues in which to bring suit.

And again I state - At the end of the day the simplest thing to do is what Admin asks...Don't breach other peoples Copyright.

Just peachy.

Indeed,
BDL