Paraphrasing of copyrighted material may, under certain circumstances, constitute
copyright infringement
Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
. In most countries that have national copyright laws, copyright applies to the original expression in a work rather than to the meanings or ideas being expressed. Whether a
paraphrase
A paraphrase () is a restatement of the meaning of a text or passage using other words. The term itself is derived via Latin ', . The act of paraphrasing is also called ''paraphrasis''.
History
Although paraphrases likely abounded in oral tra ...
is an infringement of expression, or a permissible restatement of an idea, is not a binary question but a matter of degree.
Copyright law
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
in
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
countries tries to avoid theoretical discussion of the nature of ideas and expression such as this, taking a more pragmatic view of what is called the
idea/expression dichotomy. 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.
In Germany
![Zedler - Universal-Lexicon, Band 1 (Titelblatt)](https://upload.wikimedia.org/wikipedia/commons/0/05/Zedler_-_Universal-Lexicon%2C_Band_1_%28Titelblatt%29.jpg)
An early example of the concept of paraphrasing as a copyright issue arose with
Johann Heinrich Zedler
Johann Heinrich Zedler (7 January 1706 in Breslau (now Wrocław, Poland) – 21 March 1751 in Leipzig) was a bookseller and publisher. His most important achievement was the creation of a German encyclopedia, the '' Grosses Universal-Lexicon (Gre ...
's application in 1730 for copyright protection in Saxony for his ''
Grosses vollständiges Universal-Lexicon
The ''Grosses vollständiges Universal-Lexicon aller Wissenschafften und Künste'' ( en, Great Complete Encyclopedia of All Sciences and Arts, , italic=yes) is a 68-volume German encyclopedia published by Johann Heinrich Zedler between 1731 and 1 ...
'', 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.
On 16 October 1730, the Upper Consistory court in
Dresden
Dresden (, ; Upper Saxon: ''Dräsdn''; wen, label=Upper Sorbian, Drježdźany) is the capital city of the German state of Saxony and its second most populous city, after Leipzig. It is the 12th most populous city of Germany, the fourth larg ...
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''.
In the Soviet Union
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.
By 1991, the
Copyright law of the Soviet Union
The Copyright law of the Soviet Union went through several major revisions during its existence. The first Socialist copyright law was passed in 1925. Three years later, it was superseded by a second version that remained in force for more than thr ...
had evolved to give much more protection to the author.
Free use, similar to the English
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
concept of
fair use
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
, was only allowed if it did not infringe upon the normal exploitation of the work or the legitimate interests of the author.
In the United States
United States copyright law protects original ''expressions'' but not facts, methods, discoveries, or other ''ideas'' being expressed, a doctrine known as the
idea–expression distinction
The idea–expression distinction or idea–expression dichotomy is a legal doctrine in the United States that limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.
Unlike paten ...
. Despite making this distinction, verbatim copying is not always required for copyright infringement, as paraphrasing is also prohibited in certain circumstances.
US copyright law originates in the
Copyright Clause
The Copyright Clause (also known as the Intellectual Property Clause, Copyright and Patent Clause, or the Progress Clause) describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 8).
The clause, w ...
(Article I, Section 8, Clause 8) of the Constitution, and has been the subject of several federal statutes, most recently the
Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, cod ...
. The basic two-part test for copyright infringement under the 1976 Act, described by the US Supreme Court in ''
Feist Publications, Inc., v. Rural Telephone Service Co.
''Feist Publications, Inc., v. Rural Telephone Service Co.'', 499 U.S. 340 (1991), was a landmark decision by the Supreme Court of the United States establishing that information alone without a minimum of original creativity cannot be protected by ...
'', is (1) whether there is a valid copyright, and (2) whether there has been improper copying of the copyrighted work.
The second prong also has a two-part test, first articulated in the
Second Circuit
The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate jur ...
case ''
Arnstein v. Porter
''Arnstein v. Porter'', 154 F.2d 464 (2d Cir. 1946) is a case in the law of copyright in the United States which set a precedent for determining substantial similarity for copyright infringement.
Facts
Ira B. Arnstein, a chronic litigant, su ...
'': (a) whether copying occurred (as opposed to independent creation), and (b) whether the copying amounts to an "improper appropriation", meaning that enough of the author's protected ''expression'' (and not unprotected ''ideas'') was copied to give rise to a "
substantial similarity" between the original work and the putative copy. Even if all prongs are met, there are
fair use
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...
defenses that may defeat a claim of copyright infringement.
Beyond these basics, US copyright law is complex, confusing, and inconsistent, with a variety of tests employed by courts to determine when copyright has been infringed, including by paraphrasing. There is no single rule that defines when two works are substantially similar, or when paraphrasing is so "close" as to constitute infringement of a copyrighted ''expression'' as opposed to being a different way of expressing the same ''idea''. There is a
circuit split
In United States federal courts, a circuit split occurs when two or more different circuit courts of appeals provide conflicting rulings on the same legal issue. The existence of a circuit split is one of the factors that the Supreme Court of ...
among the twelve federal appeals courts on substantial similarity analysis, with each circuit employing overlapping but unique approaches. Decisions are, by necessity, made on a case-by-case basis, with few universally-applicable principles.
Factual v. fictional works
When examining claims of copyright infringement, including by paraphrasing, US copyright law distinguishes between works of fiction (e.g., a novel) and works of fact (e.g, a history book or a set of instructions). Copyright protection for factual works is narrow, covering the author's original expressions, but not the facts or theories being expressed. In order to infringe, the copy must be "verbatim reproduction or very close paraphrasing".
Different courts adopt different approaches to analyzing whether paraphrasing in factual works constitutes infringement. Some courts have held that some factual works, particularly functional works such as instructions, lack the creativity required to meet the
threshold of originality
Threshold may refer to:
Architecture
* Threshold (door), the sill of a door
Media
* ''Threshold'' (1981 film)
* ''Threshold'' (TV series), an American science fiction drama series produced during 2005-2006
* "Threshold" (''Stargate SG-1''), ...
, and thus there can be no valid copyright under the first ''Feist'' prong. Other courts follow the "
merger doctrine". Under the merger doctrine, if there are only a limited number of ways in which an idea can be expressed, the expression is said to have "merged" with the idea, and thus there can be no valid copyright under the 1976 Act. Some courts employ "thin copyright", finding that there ''is'' a valid copyright of factual works, but that it is afforded only limited protection against "virtual identicality" or "bodily appropriation of copyrighted expression", thus permitting paraphrasing that might be prohibited in other circumstances. Finally, some courts find that all prongs of the ''Feist'' and ''Arnstein'' tests are met, but that the copying is nevertheless permitted under the fair use doctrine. Fair use analysis includes multiple factors, one of which is the "nature of the copyright work," and some courts find that factual works provide greater leeway for fair use than fictional works.
Nonfiction literary works, such as history books, newspaper articles, and biographies, are treated as factual works with similarly narrow copyright protection. An author's unique expressions are protected, but not the facts and theories themselves. Even the selection and arrangement of facts may not be protectable. For example, an author may arrange a series of facts to support a theory for why a historical event occurred, but if the author could prevent others from using the same selection and arrangement of facts, the author would have an effective monopoly on the theory itself, which would run counter to US copyright law's prohibition on copyrighting ideas.
For fictional works, more than "very close paraphrasing" is protected. US copyright law protects against paraphrasing a story by, for example, copying a detailed plot sequence but using different language for the dialogue. However, under the doctrine of "
scènes à faire
A ''scène à faire'' ( French for "scene to be made" or "scene that must be done"; plural: ''scènes à faire'') is a scene in a book or film which is almost obligatory for a book or film in that genre. In the U.S. it also refers to a principle ...
", it does not protect more general patterns, such as story themes and character prototypes. Some courts will distinguish between "literal" similarities, such as verbatim duplication or paraphrasing, and "nonliteral similarities", such as the details of a novel's plot, characters, or settings.
In his 2008 book ''Copyright's Paradox'', discussing the conflict between protecting copyright and protecting free speech, Neil Netanel says, "Yeats
orrowedfrom 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."
In music
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.
See also
*
Article spinning
Article spinning is a writing technique used in search engine optimization (SEO), and other applications, which creates what deceitfully appears to be new content from what already exists. Content spinning works by replacing specific words, phras ...
, in which paraphrasing is automated for
search engine optimization
Search engine optimization (SEO) is the process of improving the quality and quantity of Web traffic, website traffic to a website or a web page from web search engine, search engines. SEO targets unpaid traffic (known as "natural" or "Organ ...
, copyright evasion, or both
References
Sources
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Further reading
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*{{Cite journal, last1=Samuelson, first1=P., author-link=Pamela Samuelson, last2=Sherman, first2=R. M., date=2013-10-28, title=The quest for a sound conception of copyright's derivative work url=https://escholarship.org/uc/item/6j86d60d, journal=
Georgetown Law Journal
''The Georgetown Law Journal'' is a student-edited scholarly journal published at Georgetown University Law Center. It is the flagship law review of the Georgetown University Law Center.
Overview
The ''Georgetown Law Journal'' is headquartere ...
, language=en, volume=101, issue=6, pages=1505–1564, issn=0016-8092, ref=none
Intellectual property law
Legal doctrines and principles