Sadly, incidences of online copyright infringement seem to be growing more and more common. Following are just a few of the incidents I've encountered in the last year:

• A pet writer finds her article posted on a pet-related Web site without permission. The site owner claims that it's "OK" to post such material as long as credit is given to the author, and refuses to remove it.
  
• A writer discovers that an article she sold to an e-zine is now included in a professor's online course materials, without attribution. Further investigation determines that the professor has posted several articles taken from other authors' Web sites in his materials, without permission, attribution or copyright notice.
  
  
• A writer's article is published in an e-mail newsletter. A few months later, she sees the same article in another e-mail newsletter, under another byline.
  
  
• An editor receives an article submission that seems just too good to be true. A Web search confirms that it is, in fact, cobbled together from three published articles by three separate authors, and submitted under a new name and title.

If you discover that your work has been stolen, your first question is likely to be, "What can I do?" The answer is often "it depends."

Defining Copyright Infringement

The Rainwater Press glossary of publishing terms defines copyright infringement as "When another party besides the copyright owner reproduces a copyrighted work, in whole or in part, without the copyright owner's permission." Another type of infringement is plagiarism, which Seattle Central Community College defines as "Using another author's ideas or words without proper documentation; representing someone else's creative work (ideas, words, images, etc.) as one's own, whether intentional or not." While the first example above is a case of unauthorized reproduction, the other three examples are all cases of plagiarism.

Some cases of copyright infringement are unintentional. Many are the result of ignorance on the part of what I call "clueless copiers." Often, these infringers are not even writers, and may have only the vaguest notion of what copyright means. Many mistakenly believe that anything posted on the Web is free to be used or passed on (e.g., by e-mail). This category of infringer includes many well-meaning Web hosts whose goal is to pass on useful information, and don't realize that they need to ask permission before doing so. (In fact, many are convinced that they are actually doing authors a favor by posting their material!)

Conversely, it is difficult to believe that many incidents of plagiarism are "unintentional," let alone well-meaning. It is difficult to imagine, for example, that a university professor could be completely unaware of the definition of plagiarism, and thus (as he claimed) have no idea that he was doing anything wrong by copying articles from other Web sites, removing the authors' bylines, and incorporating those articles into his own material. Nor can one take seriously the outraged cries of innocence from the woman who copied an article from one e-mail newsletter and submitted it to another under her own name, or the man who cobbled together an article from three published pieces by three separate authors and submitted it as his own.

It can help to recognize what type of infringer you are dealing with when you discover that your work has been "stolen." If you are dealing with a "clueless copier" who honestly doesn't realize that it's wrong to post someone else's material without permission, your chances of working out a solution with that individual are often fairly high. (Even clueless copiers can prove unreasonable, however, as the pet writer discovered in her attempts to persuade an infringing Web host to remove her material.) If, however, you are dealing with someone who knowingly passes off someone else's work as their own, your chances of persuading that person to acknowledge the theft or compensate you for the infringement are extremely slim without actual legal action.

Before You Act

When one discovers an unauthorized use of one's material, one's first impulse is often to fire off a furious letter to the infringer. Before doing so, however, it's a good idea to stop, take a deep breath, and analyze the situation more carefully. Take the time to review your options and develop a plan.

First, check your contracts. Make sure that the use of the material really is unauthorized -- i.e., that no one else had the right to authorize that use. If you have sold all rights to your material, or if you have granted a publication "nonexclusive electronic distribution rights," then it is possible that the "infringer" could have obtained permission from your publisher. Check with the publisher first to make sure that this is not the case. If you have transferred your copyright entirely (e.g., through a work-for-hire agreement), then you should contact the publisher of the work, as the infringement is against the copyright holder rather than the author.

Next, check your reprint records. I've known more than one author who has angrily accused a Web host of copyright infringement -- only to discover that they had, in fact, authorized the use a couple of years earlier and either forgotten about it or lost track of the correspondence. So unless you have a firm policy of never authorizing that type of use, check your files!

If the infringement is actual plagiarism, start gathering any records that will help you prove your claim to the material, such as contracts, editorial correspondence, manuscript files, published clips, or dated printouts of the material if it appeared online. Since most online plagiarism involves the theft of published material, your best claim is to be able to prove that the material was originally published under your name.

Another step you may wish to take is to search the infringer's Web site for other stolen material. If the infringer is removing bylines or passing off stolen material as his or her own, try running a search on a distinctive phrase or two from other articles on the site. Chances are, you'll turn up the original. Make contact with the authors of the infringed material; they will be glad to know about the infringement, and often willing to help in your campaign to end the infringement. There is strength in numbers!

Finally, before you contact the infringer, make a record of the infringement itself. Print out copies of the infringed material, and make sure that your printer is set up to show the date on which the material was printed and the URL of the Web site. More than once, infringing material has simply "disappeared" as soon as the author makes contact.

Taking Action

Only the actual copyright holder can initiate an action against a copyright infringement. Your editor can't do it for you. It's up to you to make contact, and to state your demands.

First, decide what, exactly, you wish to accomplish. Do you wish to have the material removed from the infringer's site? Are you willing to allow the material to remain where it is as long as you're given proper attribution? Or do you wish to be paid for the use of the material?

You must also determine how far you are willing to go to achieve your goals. If the infringer refuses to accede to your request, how much time and effort are you willing to invest in the battle to come? If the only means of accomplishing your goal is to take the infringer to court, are you honestly prepared to pay the cost of such an action?

The first person you should contact about an infringement should be, if at all possible, the infringer. If, for example, your goal is to have a Web host remove your material from his site, you should first contact that person directly with your request. Copyright lawyer Charles Petit offers several sample infringement-notification letters in his article, "Protecting Your Work Against Electronic Pirates." In many cases, this is all that is necessary to resolve the issue.

If you are unable to locate contact information for the infringer, or if the infringer does not respond or accede to your request, you'll need to take matters a step farther. In the case of the plagiarizing professor, for example, the authors contacted the professor's department chair. If your material has been published under another name, contact the editor of the publication. Most editors will be horrified to learn that they have published plagiarized material, and will be more than happy to remove it. Some may even offer compensation to the original author. More importantly, this serves to notify the editor that they are dealing with a plagiarist -- which will generally ensure that at the very least, the infringer will never be able to publish anything else in that venue!

If you cannot locate a "higher authority" to help you, the next step is to contact the ISP that hosts the infringing Web site. Under the terms of the Digital Millenium Copyright Act, ISPs are required to remove material if they are notified that the material infringes upon someone's copyright. The infringement does not have to be "proven" (e.g., in court); the statement by the author that the material is an infringement is sufficient. Petit notes that "The notice of infringement ... makes the ISP responsible once notified of the infringement in writing, and is signed 'under penalty of perjury.'"

If you are unable to obtain satisfaction by contacting the infringer, contacting someone in authority over the infringer, or contacting the infringer's ISP, then often the only recourse left is legal action. However, many would say that the time to consult a lawyer is not when all other options have failed -- but before you even begin to attempt to deal with a copyright infringement. Unfortunately, for many authors this option often appears too intimidating or too expensive -- which is, perhaps, why so many pirates still sail the electronic seas!

DISCLAIMER: This column should not be considered legal advice or as a substitute for legal advice. The best place to get information on how to deal with a copyright infringement is from a copyright lawyer.

For More Information:

Protecting Your Work Against Electronic Pirates, by Charles Petit

http://www.writing-world.com/rights/pirates.shtml

Protect Your Work from Plagiarism, by Moira Allen

http://www.writing-world.com/rights/protect.shtml

Copyright Lawyers

http://www.editorialphoto.com/Internallinks/lawyer.html

Voluntary Lawyers for the Arts

http://www.vlaa.org/resources.asp

Do We Need to Copyright Our Works?

http://www.spawn.org/marketing/copyright.htm

Is Your Work on the Web?

http://www.sarahwernick.com/articles/isyourwritingonline.htm

Rainwater Press glossary of publishing terms

http://www.rainwater.com/glossary/c.html

Seattle Central Community College Glossary

http://www.seattlecentral.org/library/101/textbook/glossary.html

Copyright © 2005 Moira Allen. Portions of this article originally appeared in The Writer.

About the Author

Moira Allen is the editor and publisher of Writing-World.com, and the author of more than 300 articles and columns. Her books on writing include Starting Your Career as a Freelance Writer, The Writer's Guide to Queries, Pitches and Proposals, and Writing.com: Creative Internet Strategies to Advance Your Writing Career. Allen is a contributing editor (and former columnist) for The Writer and a frequent contributor to other writing publications. She has been writing and editing professionally for more than 25 years, and has also taught freelance and creative writing at several community colleges. Allen has recently launched a new travel website, TimeTravel-Britain.com.

Moira Allen has granted todays-woman.net, non-exclusive rights to display this work. For reprint permission please contact Moira Allen.