How is &quot;publication&quot; different in copyright and defamation cases There has been some confusion here on Law.Stack exchange as to whether &quot;publication&quot; or &quot;publish&quot; has the same meaning in defamation cases as it does in copyright cases. I am collecting sources to answer this myself for the US, but I am also interested in answers for other jurisdictions.
united-states Copyright 17 USC 101 says: “Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. Note that the key element is distribution or offering to the general public. It has been held that distibution to only a small, selected group of people does not constitute publication in copyright law. Prior to the US 1976 Copyright Act, publication was a vital concept in US copyright law, because Federal copyright protection applied only after publication, and most copyright terms were measured from the year of publication. Publication without a copyright notice was usually fatal to US copyright protection. Since the 1976 law became effective (in 1978), the concept of publication is much less vital, but can still be important in copyright law. Copyrights of works made for hire or other works with corporate authors are calculated from the date of publication, not by the life of the author. Registration is effective to preserve the right to statutory damages if it occurs within three months of first publication. While fair use can apply to unpublished works, courts are generally less willing to apply it than they would be for published works. Publication may be significant in other aspects of copyright law as well. Defamation In the context of defamation &quot;published&quot; simply means &quot;communicated to a third person&quot; The communication need not be to the public at large. The LII page on Defamation defines &quot;publication&quot; as communication of [the defamatory] statement to a third person Nolo's page on &quot;Defamation Law Made Simple&quot; says: &quot;Published&quot; means that a third party heard or saw the statement -- that is, someone other than the person who made the statement or the person the statement was about. &quot;Published&quot; doesn't necessarily mean that the statement was printed in a book -- it just needs to have been made public through social media, television, radio, speeches, gossip, or even loud conversation. Of course, it could also have been written in magazines, books, newspapers, leaflets, or on picket signs. The page on &quot;Publication and Libel Laws&quot; by LegalMatch says: Publication is the delivery or announcement of a defamatory statement to another person through any medium. With respect to libel, the defamatory statement must be communicated through a tangible medium ... Generally, publication occurs once a single individual sees or hears the defamatory statement. However, America has a long history of protecting free speech. As a result, courts will sometimes require more action than just the act of seeing a defamatory statement in print to determine when publication occurs ... The exact time of publication is very important in a libel case. Generally, the time of publication will have an effect on a libel case in two ways: Statute of Limitations – Depending on when the publication of a defamatory statement took place, that is when the period of limitations begins to run. Knowing the exact time of publication can be very important if a statute of limitations is at issue. Damages – The time of publication can have a large impact on the damages a defamed person can recover. Generally speaking, the earlier the date of publication, the more damages a person has suffered. The Law Dictionary's page on &quot;How Do You Prove a Defamation of Character Claim? says: The interesting thing to note about publication is that it’s not in the modern context, where it’s been published. It just means that it was done in a way where other people heard, saw, read, or otherwise came across this harmful lie about you. IE: it was public in some way where a third party was exposed to the statement. Exception: Confidential Communication If an allegedly defamatory statement is communicated to another in confidence or as a privileged communication, this often will not constitute &quot;publication&quot; for the purpose of a defamation action. For example, if it is part of a lawyer/client communication, or a privileged marital communication, or an employee/employer communication made in confidence or protected by an NDA, it might not count as publication. The Difference The key difference is between providing a work to the general public (copyright), and communicating a statement to any third party (defamation). In addition,. publication is an essential element of any defamation claim, but only sometimes a relevant fact in a copyright claim. My understanding is that this will also be true in most common-law countries, and possibly in some civil-law countries as well. But I cannot support that with sources.
We cannot and will not try to answer &quot;what should i do?&quot; questions here. Nothing in the linked page makes me think that the views expressed in the previous question here are any less correct. They certainly have not changed the law on copyright. The linked page is an open forum. Many of the posts o9n that thread express ill-informed and incorrect views of how copyright works, and what it protects. Several google searchs find no trace of the suit described in the thread. Note that in US law no copyright claim may be heard in a small claims court, except for the federal copyright office's small claims tribunal. I am not sure if the same is true in Canada, but it might be that the suit was simply dismissed on such a basis. In any case small claims cases do not establish legal precedents in Canada or the US. Of course it is true that anyone can sue over almost anything, even when there is no valid legal basis for the suit. If the suit had been won by the claimant, or even settled that would be larger grounds for worry. A person seriously worried over publishing a book such as that described in the question might do well to consult a lawyer with relevant expertise. A single consultation plus an opinion letter might not cost very much. But 17 USC 102 (b) is very clear that copyright never protects facts, as are the copyright laws of other countries. Note that reports of the events of sports matches are not protected by copyright, although expressive language and analysis may be. 17 USC 102 (b) reads: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Article 2 paragraph (8) of the Berne Copyright Convention provides that: (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. There seems little room for copyright protection of the moves of chess games.
German perspective: In German law, there is the concept of Schöpfungshöhe (threshold of originality), which is required for authorship rights (Urheberrecht) to apply to a work. Basically, the idea is that a minimum of creativity is required for something to be protected. However, that bar is rather low. Thus, for example: Literary works are protected practically always. Maps are generally protected, even though you might argue they "slavishly copy nature", because the act of choosing what to show and what not is already creative. However, a faithful photographic reproduction of a painting is not eligible for Urheberrecht to apply (LG Berlin, AZ 15 O 428/15) So yes, a "slavish copy" of a work would not qualify for protection if there is no creativity involved. Note, however, that other types of protection apart from Urheberrecht might apply, such as Sui generis database right.
Not very novel What you are talking about is a derivative work. This is arguably the most famous example: It's an interesting example because Leonardo da Vinci did not have copyright in the original but Marcel Duchamp and Francis Picabia do have copyright in the derivative. Even though the changes are physically small, they are enough. A crucial factor in current legal analysis of derivative works is transformativeness, largely as a result of the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc. The Court's opinion emphasized the importance of transformativeness in its fair use analysis of the parody of "Oh, Pretty Woman" involved in the Campbell case. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is. For an author to have copyright in the derivative they must: Meet the (low) threshold of originality for copyright to exist. Make their derivative lawfully - either because they have permission or because their use falls under an exception to copyright like fair use or fair dealing. However, they do not have copyright in the original elements. For example, I could take the Mona Lisa and give her different clothes, a different background or a hat I will not be infringing their copyright. If I give her a different style of moustache? However, there is an issue with "I have copyright on the contents of the post" when you don't. Even if your work is derivative, you do not have copyright in the original parts and do not have the right to licence them. So, for example, this post is a derivative work of the Wikipedia page linked to above and I have copyright in my original contributions because: They meet the threshold of originality I have permission to make the derivative either through the Wikipedia licence or because my use is fair use. I can give Stack Exchange a licence for my work but I cannot give them a licence for the original work including, for example, the image and quote above. So, someone could quote my entire answer subject to the licence or fair work, but they couldn't copy just the image or quote.
Yup, copyright statutes and case law cover these situations. In Canada, look at at Copyright Act Section 30.7: It is not an infringement of copyright to incidentally and not deliberately (a) include a work or other subject-matter in another work or other subject-matter; or (b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter. The US doesn't have this in statute, but some defendants used a fair use defence, some successful, some not. (http://www.iposgoode.ca/2010/04/cindy-incidentally-the-incidental-inclusion-exception-in-canadian-copyright-law/) If you're using a piece of art as part of a tutorial, or being illustrative of a point, or subject of commentary, review, or criticism, that may be fair use or fair dealing.
Factual assumptions ohwilleke's answer is entirely correct. However, it makes factual assumptions based on the standard meaning of &quot;journal&quot; and &quot;author&quot;, which I believe to be unwarranted. From the question, it seems likely that we are talking about a scientific paper, which operates under a very different economic and legal model. I am going to assume that: the authors sent a draft of the paper, the preprint, to the journal editor; the journal editor sent the draft to external experts (the reviewers); those reviewers, and possibly the editor, gave some feedback; the authors modified their draft based on that feedback to produce the final version; throughout all this, the authors, editor and reviewers agreed with the journal’s policies; the journal policies require a transfer of copyright to the publisher, a legal entity that &quot;owns&quot; large number of journals and provides some technical services (article typesetting, maintenance of a web site with the journal contents, maintenance of DOIs, etc.); neither the authors, nor the editor, nor the reviewers received monetary compensation for their work (this is a key economic difference from non-academic journals, but as we shall see, it has little legal effect) In theory, all depends on the copyright release agreement When the author(s) submit a draft to a journal, they have to click through an agreement to release copyright. Such a clause could, in theory, be anything the authors and the publisher agreed that does not violate contract law. In practice, because the publishers are a small oligopoly, the agreements are more or less standardized. The &quot;sample publishing agreement&quot; given as example at https://www.elsevier.com/about/policies/copyright (as downloaded on March 2, 2023) is more or less representative: I hereby assign to the Copyright Owner the copyright in the manuscript identified above (where Crown Copyright is asserted, authors agree to grant an exclusive publishing and distribution license) and any tables, illustrations or other material submitted for publication as part of the manuscript (the “Article”). This assignment of rights means that I have granted to the Copyright Owner the exclusive right to publish and reproduce the Article, or any part of the Article, in print, electronic and all other media (whether now known or later developed), in any form, in all languages, throughout the world, for the full term of copyright, and the right to license others to do the same, effective when the Article is accepted for publication. This includes the right to enforce the rights granted hereunder against third parties. The authors are the sole intellectual contributors to the preprint version, but a copyright release agreement could still bar them from publishing it. The vast majority of agreements between novel authors and publishing houses forbid the author from selling the book rights to another publisher or posting drafts of the novel on the author’s website (two actions that would result in greatly diminished sales for the publisher). The published version incorporate revisions where the reviewers and possibly the editor contributed significant intellectual contributions. Again, all depends on the copyright agreement - the publisher terms could in theory require that the reviewers and editors release their contribution under an irrevocable license to the authors. In practice, all goes to the publisher. The financial structure is irrelevant The fact that authors (and reviewers, and editors) are not paid by the publisher is irrelevant. Yes, a contract (in common-law countries) requires consideration from both sides; however, consideration needs not be monetary. There is not much doubt that publication of an article is &quot;consideration&quot;, at the very least because that is considered prestigious among a significant fraction of the population. In addition, there is ample evidence that funding agencies and university HR staff evaluate and promote scientists based primarily on the papers they publish in scientific journals. In practice, preprint rules are lax The vast majority of academic publishers allow authors to publish the preprint version although conditions vary (only the preprint, only on a personal website, only for a limited time, only after some embargo period, only if you cite the final article with the correct DOI, etc.). I would speculate that this is the result of cultural pressure. Many academics decided to post their articles (sometimes the preprint before sumbission, sometimes the published version) on the internet without much regard to pesky questions of copyright law, because they viewed publishers as gatekeeping greedy monopolistic parasites. The publishers decided to embrace the practice in order to be able to put some limits on it, rather than try to mass-fire lawsuits against the people who provided them with free labor. Regardless of whether that speculation is correct, the current arrangement is not the inevitable result of legal rules, and publishers could conceivably decide to change their preprint sharing policies at any moment. Limitations to the copyright of research papers This section is quite obviously not exhaustive, but given that the original question does not specify a jurisdiction, I did not search beyond what I already know. In the united-states, works produced by employees of the federal government as part of their work duties are generally public domain (17 U.S. Code § 105; do note that subsection (b) means certain works produced by certain institutions still are under copyright). Hence, if the authors were both researchers at a federal research institution, the preprint is public domain and can be republished irrespective of the publisher’s will. (I am led to believe, however, that most US researchers are not employees of the federal governments, but rather of private or state universities.) In europe, as a result of public pressure against publishers (see &quot;greedy monopolistic parasites&quot;, above), the European Commission published non-binding guidelines (2012/417/EU) asking that there should be open access to publications resulting from publicly funded research as soon as possible, preferably immediately and in any case no later than 6 months after the date of publication, and 12 months for social sciences and humanities That (non-binding) recommendation has been adopted with varying adaptations in various EU countries. The exact implementation in a given country should be checked before relying on it. For instance, in France, article L533-4 du code de la Recherche allows authors (after the six or twelve months embargo period) to post the published version (not just the preprint), irrespective of what what signed with the publisher, as long as at least half of the funding for the research came from public funds. I will assume neither of those apply. The copyright owner is likely still around Academic journals are born and die regularly. However, academic publishers rarely do (Elsevier is almost 150 years old). As ohwilleke says, the copyright release contract signed 40 years ago is likely still valid; even if the publisher folded, it would apply to the publisher’s legal successor. (The question of how legal rights are liquidated in a bankruptcy would be an interesting question that I am not competent to answer; it is plausible that under certain circumstances the contract would be dissolved.) If the authors can access the copyright release they signed back when they submitted the article, you might be able to determine that posting the preprint or the final article is acceptable. (I realize that this is a fairly ludicrous hypothetical, given that the paper was published 40 years ago.) Otherwise, it is extremely likely that the publisher would be able to sue, even if the publication occurs with the authors’ full support. Whether they are likely to do so, and whether publishing anyway is ethical, are of course non-legal questions.
Yes Loss of income that is directly attributable to a loss of reputation can be part of the damages in a libel case. However, the plaintiff must prove the connection, must show that had the libel and the resulting loss of reputation not occurred, the income would have been received. This can be hard to establish. Testimony from specific people who say that they would have hired the plaintiff or done business with the plaintiff but for the libel is a common way to establish this kind of damage. Showing a sudden drop of income after the libel can also help such a case. And of course, the plaintiff must establish the other elements of libel: (in the US) a negative factual statement, communicated to others, the falsity of the statement, and a resulting loss of reputation.
Since the effective date of the US 1976 Copyright act, a copyright notice is not required at all on works published in the US, nor is it required on works published in any other country that adheres to the Berne Convention (which is adhered to by almsot every country in the world at this time). A copyright notice, if present, may specify a pseudonym, a business name, or a form of the author's name other than his or her legal name. The validity of the copyright does not depend on the name in the notice. This is true in all Berne Convention countries. Even under the 1909 US copyright law, when a notice was required for protection, the exact form of the name used was not important, and pseudonyms and variant forms were permitted, as well as DBA names, which might not be easy to associate with the actual copyright holder. Nor do I know of any other country in which an error in the name in the notice would invalidate the copyright. Aside from people changing names, a copyright can be sold or otherwise transferred. This does not require changing the copyright notice to reflect the changed ownership of the copyright, although it is often done with new versions or printings. The name on a copyright notice is at best suggestive or helpful; it does not define the owner.