Copyright of briefs

The copyright of briefs deals with what content belongs to whom in a brief, and the legality of using it. Copyright itself is a legal concept which gives the author of an original work exclusive rights to dictate the use and distribution of it. It is of particular concern to debaters, because they often reproduce parts of copyrighted works (such as journals and news articles) without explicit permission from the original authors.

Background on copyright law
In 1710, Queen Ann created the first copyright statute, to encourage writers in England to publish more works. Today, the idea has spawned a morass of highly complex and sometimes unclear law. Initially, works had to be registered to benefit from copyright protection; but more recently, most countries consider all original works (even if unregistered) to be protected by copyright law.

United States copyright law "permits limited use of copyrighted material without acquiring permission from the rights holders", under the Fair Use clause. U.S. law has several criteria for determining whether or not use of copyrighted content is considered fair use. Since briefs are transformative in nature, and usually only reproduce a small portion of the original work, they are generally considered to fall squarely under Fair Use.

According to 17 U.S.C. § 107: Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:


 * 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The demarcation model
Who owns the content in a brief? The answer to this question can be complex, because briefs typically include content from a variety of sources. In 2012, Jordan Bakke and Elijah Schow developed a model to answer this question which classifies (demarcates) elements of a brief and defines who typically owns the rights to each part:


 * Citations - includes author names, credentials, URL's and other information in the citation. This information is usually in the public domain, which means it is not particularly owned by anyone. (Note that the arrangement and wording of a particular citation would be considered "added content", below. For example, if the brief author paraphrased the credentials of his source in his own words, he owns that particular wording.)
 * Quotation - is the author's direct words. This content is owned by the original author or publisher.
 * Added Content - includes taglines, subtags, strategy notes, added brackets, etc. This is owned by whoever wrote it, which is usually the brief author.
 * Internal Markup - markup is a term which simply means "formatting." It includes underlining in quotes and citations, assignment of paragraph and character styles, etc. and is owned by the person who performed the formatting, typically the brief's author.
 * External Markup - includes external template files. This is owned by the author of the template.

The Fair Use Clause
Due to an exception in U.S. copyright law called the "Fair Use Clause," unauthorized reproduction of copyrighted material may still be legal. The Fair Use clause, however, is ambiguous, so determining whether or not use of copyrighted works in a sourcebook falls under this exception can be difficult and inexact. The following is a list of sourcebook characteristics that are favorable and unfavorable for their consideration as Fair Use, based on the Fair Use checklist from Columbia university.

Favorable

 * [purpose] Transformative (uses the work for a different purpose than the original)
 * [purpose] Restricted access (sourcebooks generally aren't publically available)
 * [nature] The original work was published
 * [nature] The original work is factual or nonfiction based
 * [amount] Small quantity (the sourcebook only uses small excerpts from the original)
 * [effect] No significant effect on the market (the sourcebook does not cause the copyright holder to lose a significant amount of profit)
 * [effect] No similar product marketed by copyright holder (generally the publishers of the original work don't sell sourcebooks)

Unfavorable

 * [purpose] Commercial
 * [purpose] Profit from use
 * [effect] Numerous copies made

A Cautionary Tale
The above list may be deceiving because sourcebooks may fall outside the intent of the Fair Use Clause. According to Wiley-Blackwell, a scholarly publishing company: Generally, a use will constitute "fair use" if minimal, commercially insignificant portions of an existing work are copied, quoted or paraphrased for purposes of comment, criticism, illustration or scholarship. In a commercial context, the doctrine of "fair use" is quite limited. If you are in doubt about whether your use of copyrighted material is a fair use, go ahead and request permission. Key phrase: for purposes of comment, criticism, illustration or scholarship. Sourcebooks are neither commentaries nor scholarship, but compilations sold for profit.

It is also worth noting that one can still be sued even if a work falls squarely under fair use. What is the risk of lawsuit if one does not ask for permission to use a copyrighted work? According to "Copyright & Fair Use," an online book published by Standford University Libraries:

As explained in each chapter, the risk of being sued depends on not only your particular use, but on factors such as the likelihood that the use will be spotted, whether you are a “worthy” target for litigation, or whether the other side is inclined to sue.

This book recommends a conservative approach. Unless you are certain that the material is in the public domain or that your use is legally excusable, seeking permission is worth your time. If you are not sure, you’ll have to either make your own risk assessment or obtain the advice of an attorney knowledgeable in copyright or media law.