Paraphrasing of copyrighted material

Paraphrasing of copyrighted material may reduce the probability that a court will find that copyright has been infringed; however, there have been many cases where a paraphrase that uses quite different words and sentence structure has been found to infringe on a prior work's copyright.

The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case.

Legal traditions

Early years

Johann Heinrich Zedler's right to publish his Universal-Lexicon was challenged on the grounds that an encyclopedia must always paraphrase other works.

An early example of the concept of paraphrasing as a copyright issue arose with Johann Heinrich Zedler's application in 1730 for copyright protection in Saxony for his Grosses vollständiges Universal-Lexicon, one of the first encyclopedias. The publisher of a rival General Historical Lexicon said that Zedler's Universal Lexicon would not differ in content from this and other existing lexicons apart from paraphrasing.[1] On 16 October 1730, the Upper Consistory court in Dresden rejected Zedler's request, and warned that he would be subject to confiscation and a fine if he reproduced any material from the General Historical Lexicon in his Universal Lexicon.[2]

Laws on the degree of copying or paraphrasing that is considered permissible have become steadily more restrictive over the years. In his 2008 book Copyright's Paradox, discussing the conflict between protecting copyright and protecting free speech, Neil Netanel says, "Yeats [borrowed] from Shelley; Kafka from Kleist and Dickens; Joyce from Homer; and T.S. Eliot from Shakespeare, Whitman and Baudelaire, all in ways that would infringe today's bloated copyright."[3] Paraphrase may apply to music as well as to writing. It was commonplace for Baroque, Classical and Romantic composers to create variations on each other's work without permission. This would not be allowed today.[4]

Copyright protection in Britain dates back to the 1556 Charter of the Worshipful Company of Stationers and Newspaper Makers. The Licensing of the Press Act 1662 gave publishers exclusive printing rights, but did not give any rights to authors. Parliament failed to renew the act in 1694, primarily to remove monopoly and encourage a free press. The Statute of Anne in 1710 prescribed a copyright term of fourteen years, and let the author renew for another fourteen years, after which the work went into the public domain. Over the years, additional acts and case law steadily refined the definitions of what could be protected, including derivative works, and the degree of protection given.[5]

The Soviet Union's Copyright Act of 1925 in essence said that a work created by a minimal paraphrase of an existing text could be considered a new work eligible for copyright.[6] By 1991, the Copyright law of the Soviet Union had evolved to give much more protection to the author. Free use, similar to the English common law concept of fair use, was only allowed if it did not infringe upon the normal exploitation of the work or the legitimate interests of the author.[7]

Moral rights

Moral rights are rights of creators of copyrighted works that are generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution and the right to the integrity of the work, which bars the work from alteration, distortion, or mutilation without the author's permission. Paraphrasing without permission may be seen as violating moral rights. Moral rights are distinct from any economic rights tied to copyrights. Even if the author has assigned their copyright to a third party, they still maintain the moral rights to the work.[8] Moral rights were first recognized in France and Germany.[9] They were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928.[10] While the United States became a signatory to the Berne convention in 1989, it does not completely recognize moral rights as part of copyright law, which is seen as protecting commercial rights in intellectual property, but as part of other bodies of law such as defamation or unfair competition which protect the reputation of the author.[11]

Edward Gibbon was more concerned about poor translations of his book than about copyright violations.

Edward Gibbon published the last three volumes of his masterpiece The History of the Decline and Fall of the Roman Empire in 1788, at a time when both copyright and moral rights were poorly enforced. With a small private income, he was not dependent on sales but was more concerned about the damage to his reputation from poor translations, a form of paraphrasing. He wrote, "The French, Italian and German translations have been executed with various success; but instead of patronizing, I should willingly suppress such imperfect copes which injure the character while they propagate the name of the author. The Irish pirates are at once my friends and my enemies...."[12]

By the start of the twentieth century, U.S. decisions on unfair competition found that representing as the author's work a version of the work that substantially departed from the original was a cause of action.[13] Section §43(a) of the Lanham Act, which protects brands and trademarks, also provides similar protection to laws based on moral rights. For any goods or services, it bans false designation of origin or a false description or representation.[14] In Gilliam v. American Broadcasting the British comedy group called Monty Python took action against the ABC network for broadcasting versions of their programs which had been correctly attributed to them but had been extensively edited, in part to remove content that their audience might consider offensive or obscene. The judgement of the United States Court of Appeals for the Second Circuit was in favor of Monty Python, finding the cuts might be an "actionable mutilation" that violated the Lanham Act.[15]

Fair use

In the United States, copyright was covered by common law until it was formalized in the Copyright Act of 1976. Section §107 of this act set out four "fair use" principles to be used in evaluating whether copyright had been infringed:

  • the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

These principles apply both to literal copies and to paraphrases. Judges are required to consider these factors, but may also take others into consideration, and may choose what weight they apply to each factor.[16] According to the U.S. Court of Appeals for the Second Circuit in Wainwright Securities v. Wall Street Transcript Corp (1977), "The fair use doctrine offers a means of balancing the exclusive rights of a copyright holder with the public's interest in dissemination of information affecting areas of universal concern, such as art, science and industry."[17] Claims of fair use in copying or paraphrasing are more likely to succeed when the work being copied is factual. In Harper & Row v. Nation Enterprises the Supreme Court of the United States said, "the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy."[18] However, the court went on to quote Gorman, Fact or Fancy? The Implications for Copyright (1982) which said, "[E]ven within the field of fact works, there are gradations as to the relative proportion of fact and fancy. One may move from sparsely embellished maps and directories to elegantly written biography. The extent to which one must permit expressive language to be copied, in order to assure dissemination of the underlying facts, will thus vary from case to case."[19]

President Gerald Ford at the hearing on pardoning former President Richard Nixon. When The Nation magazine published excerpts of Ford's unpublished memoir describing his reason for pardoning Nixon, the Supreme Court ruled that copyright was infringed even though Ford was a public figure describing a public event.

Use of a work for critical commentary is generally considered fair, as long as the commentary is indeed about the substance or style of the original work.[20] Parody may be seen as a form of commentary, and to be effective must copy or paraphrase many of the elements of creative expression in the work being parodied. Although courts have differed in the past about how closely a parody can copy an original work, the U.S. Supreme Court in Campbell v. Acuff-Rose Music, Inc. (1994) ruled strongly: "[P]arody has an obvious claim to transformative value... Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and in the process, creating a new one. We thus line up with the courts that have held the parody, like other comment or criticism, may claim fair use under §107."[21]

Unpublished works

Unpublished works have special status under both moral rights and copyright, since the author or copyright owner has the right to control first publication. Publication of an excerpt or paraphrase of an unpublished work may infringe that right. An author wishing to quote or even loosely paraphrase an unpublished work in France can only do so with permission from the author.[22] In Harper & Row v. Nation Enterprises (1985) the United States Supreme Court held that "under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use."[23]

The U.S. Court of Appeals for the Second Circuit in Salinger v. Random House, which concerned a biography in which a number of unpublished letters by the subject had been paraphrased, similarly concluded that the copyright owner's right to control publication took precedence over "fair use", so even limited paraphrasing was unacceptable.[24] This drew support from those concerned with the rights of an individual to privacy and criticism from those more interested in the public "right to know."[25] In 1992 the Copyright Act was amended as a result of the Salinger case to include a sentence at the end of §107 saying that the fact that a work is unpublished "shall not itself bar a finding of fair use if such finding is made upon consideration" of all four fair-use factors.[26]

Other Languages