Blogging Without Infringing

In the last blog, I looked at the issue of protecting your blog content and blog identity. This blog looks briefly at some of the issues concerning the inclusion of other’s material in your blogs.

As I mentioned in the last blog, as a blogger you need to look in both directions when talking about intellectual property (“IP”). In particular, you need to ensure that what appears on your blog – whether that be blog text, photos, or comments – does not infringe the IP rights of someone else.

Clearing your blog identity for use

Before you launch your blog, with your new blog identity, you should carry out trade mark searches to ensure that your logos, name or taglines do not infringe the registered trade marks of another person or company.

Public domain and copyright

Moreover, you should ensure that the contents of your blog presence do not infringe another’s copyright. Content is not necessarily in the public domain just because it is freely available to access on the Internet. Unless you have created the content yourself – for example, taken that photograph yourself – you cannot assume that it is not protected by copyright. In fact, you should usually assume the opposite.

Most content is protected by copyright and that copyright will only expire 70 years after the death of the author. This means that most current content is copyright protected. While it is true that there are exceptions which permit some use of protected material – fair dealing in the UK or fair use in the United States, these are limited in scope, as you will see below.

Use of stock images

These days, with search engines like Google, there are thousands of images online which bloggers may wish to use in their blogs. However, just because an image can be viewed or downloaded online, does not necessarily mean that it is freely available. Most such images are protected by copyright and downloading one for your blog may well amount to unauthorised reproduction contrary to copyright law.

Fair dealing of copyright material

What happens if, as a blogger, I want to use material such as photo from a news event, or if I want to quote from an article, poem, book or even if I should want to parody such material?

Well, assuming that the content you wish to use is protected by copyright (which is likely), the general position, at least in the UK, is that the reproduction by you of a substantial part may amount to copyright infringement. In order not to get bogged down here with the somewhat tricky issue of what amounts to a “substantial part”, we can say that fortunately, the law provides for limited exceptions which in the UK are described in law as fair dealing.

Although there are a number of fair dealing exceptions, only a few are likely to be relevant to bloggers. These include (a) criticism and review, parody and quotation, (b) reporting of current events, and, not strictly fair dealing but convenient to mention here, (c) incidental use.

If for your blog, you reproduce part of a copyright work – let’s say an online article or a poem – in order to criticise or review that work or another work, your use may qualify as fair dealing under the law in the UK. This includes also if you include a quotation. It is important to note that you are not free to reproduce at will. Your use must be “fair” so reproduction of an entire article or poem on your blog presence is unlikely to be fair. The exception applies only to published works. Moreover, you must normally include a sufficient acknowledgement of the original work.

The law in the UK also provides for fair dealing of third-party copyrighted material for the purpose of reporting of current events. However, photographs are excluded from this exception and so you cannot download and reproduce a photograph for the purpose of new reporting on your blog. While it might seem obvious, the events must be “current” and you must normally include a sufficient acknowledgement.

A blogger may also make incidental use of another’s copyright work without infringing copyright in that work. However, the law in the UK expressly excludes the deliberate inclusion of another’s music or lyrics. For example, you cannot add a song in the background of a video clip and if the song owner objects claim that your use was incidental use: it is not incidental use in this example because the music was included deliberately.

Creative commons licences

The last decade has seen the rise of open access forms of desseminating works. These provide for standard-form licences which allow any member of the public to reuse a work in particular ways. One popular method are creative commons licences which have sought to develop a suite of licences for many types of works, other than software.

Basically, creative commons (“CC”) offers copyright owners a suite or menu of licences. Some of these only allow reuse in an unmodified form. Some only allow reuse with attribution. Others only allow reuse for non-commercial purposes.

While CC licences have become extremely popular in recent years, it seems that the most common kind is the “attribution, non-commercial, non-derivative works” licence  which only allows the user to reproduce, distribute, or play the work in a non-modified form, only for non-commercial purposes and with attribution of authorship. As a consequence, CC licences are generally better suited to users who do not seek remuneration from copyright.

Using other’s logos or trade marks

As a blogger, to what extent can I include the brand logos or trade marks of others in my blog content? In terms of logos – say, logos of famous companies such as Virgin, Barclays, or Coca Cola – the best advice is: “don’t”. Although brand logos are usually protected by trade mark registration, most of them are also protected by copyright and so any reproduction by you on your blog of another’s brand logo is potentially copyright infringement.

In contrast, the mere reference in your blog to a word trade mark  – such as “BARCLAYS BANK” or “GAP” – is not necessarily trade mark infringement. This is because, generally speaking, trade mark infringement is based on consumer confusion and so a mere reference to BARCLAYS BANK in your blog is not necessarily going to confuse your readers. That said, if your use is such that the relevant consumer might be led to believe that your blog is somehow connected to or supported by Barclays Bank, your use could potentially amount to trade mark infringement. So, probably the safest approach is to stick to mere referential, or passing textual, use of another’s word trade marks and avoid using other’s trade marks in such as way as to cause consumer confusion.

So, now that you have some basic insights into the IP laws, happy blogging!

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