Copyrighted materials - Read First Before Posting

[NashvilleDon]

To my understanding, a list of ingredients can not be copyrighted. Only the instructions. Please correct me if I'm wrong.

[phatch]

Originally Posted by NashvilleDon

To my understanding, a list of ingredients can not be copyrighted. Only the instructions. Please correct me if I'm wrong.

I agree with that assessment.

However, that agreement is tempered by how much money you are willing to spend in court to be proven right, though there is the risk of losing too with even more outlay. Or in this case, how much money Nicko is willing to spend in court. The answer is, it's not worth the fight.

Phil

[KYHeirloomer]

Under the law, a list of ingredients---whether for a chemical formula, what your kids need in terms of school supplies, or, to put a point on it, a recipe, is not copyrightable. There is no ambiguity there at all.

The question is whether or not the instructions are intellectual or artistic property under the meaning of the law. This part is ambiguous. And, to the best of my knowledge, has not been tested.

And, as Phil implies, Nicko isn't going to be the one to do so.

Another consideration. According to some authorities, recipes, per se, are not copyrightable. But what happens when the recipe appears in a book? Does the general copyright applying to the work (the book) also apply to the component parts (i.e., a recipe in the book)? Again, this is ambiguous, and has not, to my knowledge, been tested.

Just for some perspective, to defend a copyright or patent suit takes 50 round ones just to open the door. And it goes up---rapidly---from there. Which is why there aren't a whole bunch of such suits. In the first place, you rarely recoup what it costs you in court. And, in the case of publishers, the PR aspect isn't good. So, 99.999999 ad nauseum percent of the time you will get away with minor---and even not so minor---infractions.

But, as I've said before: Do you do what's right out of fear of punishment? Or do you do what's right just because it's right?

All of which is academic at Cheftalk. Nicko has decreed that copyrighted material can not be posted without permission. And this is his site, so he makes the rules. We either live with them, or we're free to go elsewhere.

[kjb407]

I never knew you could copyright a recipe

[SEMI-IRISH COOK]

There is no copyright on Recipes - Full stop!!

[boar_d_laze]

Nothing quite like a legal opinion from a non-attorney.

BDL JD

[shel]

Originally Posted by boar_d_laze

Nothing quite like a legal opinion from a non-attorney.
BDL JD

Sure there is - a medical diagnosis by a non-doctor.

scb

[KissTC]

It seems that people are getting confused between what Copyright Law is and what the United States wants the Law to be.

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.

It is all very complex but I can sum it up like this...

Copyright is AUTOMATIC - You make it, you own it.

That is it...That is Copyright summed up.

There is no such thing as Copyright registration - Yes, I am aware that the U.S has a Copyright Office and I understand that they charge a fee. Under the Berne Convention the U.S Copyright Office is may NOT be lawful.

The question of linking to web sites by posting URL's. No, that does not breach Copyright. Some things are not subject to Copyright for example, your name, your address etc. A URL is nothing more than an address and therefore not Copyright.

Giving credit does NOT give a right of use. Whether the material has a Copyright Notice or not is irrelevent...It makes no difference. If you did not make it, then you do not own it!

The ONLY time at Law you can use Copyright material is if you own it or you have "express written permission" to use it.

There are uses that are exempt of the Copyright Law. For example...

Reporting News.
Education.
Critical Review.
etc, etc.

In short, if you are not 100% sure that you are allowed to publish material, then chances are you are not.

As for posting recipes etc. I would suggest that you take the time to type it yourself. If photos are required, then cook the recipe and take the photo yourself. I would suggest, that the question of whether a recipe is Copyright or not would need to be asked on an individual basis at Law.

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

[boar_d_laze]

KissTC,

In your discussion of copyright law are you giving your lay opinion or your legal opinion?

It isn't actually that complex, and your summary is neither wrong nor right. It's incomplete and not helpful. Further, it appears you misunderstand the Berne Convention. In pertinent part it says that the signatories accept that other signatories may and will enforce their own law regarding intellectual property; and further accept those laws as valid. In other words, the other signatories recognize and accept United States law as it applies to U.S. intellectual property. You are wildly incorrect as to any effect the Berne Convention has on U.S. copyright registration. By the way, copyright registration is not particularly germane to this discussion.

Whether or not a person may post, without permission, the work of another is subject to a multi-pronged analysis which depends on the type of material, on the intent of the the person copying the original work, and many other factors. I won't go through all of them. This isn't law school, and you aren't my student. This isn't a case, and you're not a client.

While your list of excepted activities is correct in some respects, it begs many questions. More importantly though, it does not relate to the subject matter here. When writing on legal matters it is important to be precise. To date, no one has successfully protected a single recipe. There is, as far as I know, no controlling U.S. statute or regulation in the Code. However, there is a fair amount of case law directly on point. Every opinion agrees that individual recipes are not protected -- at least as lists of ingredients and simple instructions. That is the law as it stands.

Giving credit is more a matter of ethics than of law.

The administrators of this site have decided on a policy which is both prudent and fair. Whether or not the law allows more latitude than the policy is of no consequence. The site is a private place and our continued participation is, as it should be, at sufferance of the management. Furthermore their liability may be somewhat different than an individuals, in that many people may individually take enough information from another to constitute more than would be exempt.

I hope this clarifies,
BDL

[KissTC]

BDL,

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. I am sure that you would understand that Law is a matter of opinion. That is why we have Courts, so that when legal opinion differs, the Court can decide which opinion is most correct.

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.

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. 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.

As for the rest of your post, I am not going to address everything you have stated. However, I will correct you on a few things...

"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".

My summary is correct...Copyright is AUTOMATIC.

Copyright can be very, very complex. 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 !

"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.

It does relate to the subject matter. If a person posts a photo here, for example, as a news announcement, then it would not breach Copyright!

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

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

So what is your point?

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

In closing, I will state again that it seems people are confused with the Copyright Law and how it applies to them. People should not confuse what the U.S wants with what the Law actually is.

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.

[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

[izbnso]

My goodness BDL, I just have one question. Do you smoke after a good argument (legal, that is)? I bet you do.

[Nicko]

Please stay on topic don't make this and outlet for personal attacks. Thank you.