Wikilegal/Close Paraphrasing

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Members of the Wikimedia community are often concerned about the use of close paraphrasing on Wikipedia articles and query whether such paraphrasing is copyright infringement. If close paraphrasing is copyright infringement, why is not every Wikipedia article a copyright violation?

Is close paraphrasing of a copyrighted work a copyright infringement?

Yes. Among other rights, copyright law grants a copyright owner exclusive control over any unauthorized copying of the copyrighted work.^[1] Paraphrasing may be construed as copying if it is “substantially similar” to the copyrighted material. Such paraphrasing infringes on one of the exclusive rights of the copyright owner. There is no hard and fast rule to determine what is substantially similar. Substantial similarity need not be a “virtual copy” of the protected work, nor does the ordinary observer need to confuse the work entirely.^[2] Ultimately, the question boils down to whether there is enough similarity between the allegedly infringing work and the original elements of the copyrighted work to convince the ordinary observer that the alleged infringer wrongfully took something of significance from the copyright owner. ^[3]

If close paraphrasing is a copyright infringement, why is not every Wikipedia article a copyright violation?

While most articles on Wikipedia do not engage in close paraphrasing, the ones that do may not be copyright violations for several reasons. First, to have a copyright infringement, there must be a valid pre-existing copyright. The underlying facts of a work are not copyrightable.^[4] For example, a list of names and numbers listed in alphabetical order in a phone book does not qualify for copyright protection.^[5] The idea or a genre of a story is also not copyrightable.^[6] Copyrights are granted to expressions of the idea, not the idea itself.^[7] Expressions must have at least a modicum of creativity to qualify for copyright protection.^[8] The way an author describes a set of real life events in a biography may qualify as such an expression and will likely have copyright protection.^[9] As underlying facts and ideas, without more, are not copyrightable, some content in sources on Wikipedia will not qualify for copyright protection.

Another consideration is that the underlying work might be in the public domain or available under an open license, such as the Creative Commons Attribution-ShareAlike 3.0 Unported License. In this instance, paraphrasing is permissible, so long as the terms of the appropriate license are met, and will not be a copyright infringement. Even if a source being used in a Wikipedia article contains copyrighted content that is not available in the public domain or under an applicable license, paraphrasing may still be permissible with a fair use defense. The four factors that courts use to decide if a work qualifies for fair use 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.^[10]

With regard to the purpose and character of use, the fact that a publication is commercial as opposed to nonprofit tends to weigh against a finding of fair use.^[11] The law generally recognizes a greater need to disseminate works of factual nature than works of fiction or fantasy.^[12] As such, news reporting is one example of the type of activity a court might regard as fair use under the circumstances.^[13] Therefore, paraphrasing for nonprofit purposes and dissemination of factual information leans toward fair use. Nevertheless, the law will also consider the commercial value of a work and the potential harm to the copyright owner before making a fair use determination.^[14] The fair use doctrine is an equitable rule, with no generally applicable definition, and must be evaluated on a case-by-case basis. To find more information about how fair use may apply to a particular work or paraphrasing, one should contact an attorney.

References

↑ Copyright Act, 17 U.S.C. §106.
↑ Country Kids ‘N City Slicks v. Sheen, 77 F.3d 1280, 1288 (10th Cir. 1996).
↑ Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946).
↑ See Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
↑ See id.
↑ See Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (9th Cir. 1984).
↑ See Mazer v. Stein, 347 U.S. 201, 217 (1954); See also, Baker v. Seldon, 101 U.S. 99 (1879) (providing that a work on the subject of bookkeeping may have copyright protection, but a claim to the exclusive property in a peculiar system of bookkeeping is not subject to the law of copyright).
↑ See Feist, 499 U.S. at 340.
↑ See Harper & Row Publishers v. Nation Enterprises, Inc., 471 U.S. 539 (1984).
↑ Campbell v. Acuff-Rose, 510 U.S. 569, 576 (1994) (citing Copyright Act, 17 U.S.C. § 107).
↑ Harper & Row, 471 U.S. 539.
↑ Id. at 544.
↑ Id. at 539.
↑ See Perfect 10 v. Amazon, 508 F3.d 1146, 1168 (2006) (finding that fair use applied to copyrighted screenshots images when copyright owner was not substantially harmed because the risk of users downloading the screenshot thumbnails was slight and the potential loss in revenue was minimal).

[1] Copyright Act, 17 U.S.C. §106.

[2] Country Kids ‘N City Slicks v. Sheen, 77 F.3d 1280, 1288 (10th Cir. 1996).

[3] Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946).

[4] See Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).

[5] See id.

[6] See Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (9th Cir. 1984).

[7] See Mazer v. Stein, 347 U.S. 201, 217 (1954); See also, Baker v. Seldon, 101 U.S. 99 (1879) (providing that a work on the subject of bookkeeping may have copyright protection, but a claim to the exclusive property in a peculiar system of bookkeeping is not subject to the law of copyright).

[8] See Feist, 499 U.S. at 340.

[9] See Harper & Row Publishers v. Nation Enterprises, Inc., 471 U.S. 539 (1984).

[10] Campbell v. Acuff-Rose, 510 U.S. 569, 576 (1994) (citing Copyright Act, 17 U.S.C. § 107).

[11] Harper & Row, 471 U.S. 539.

[12] Id. at 544.

[13] Id. at 539.

[14] See Perfect 10 v. Amazon, 508 F3.d 1146, 1168 (2006) (finding that fair use applied to copyrighted screenshots images when copyright owner was not substantially harmed because the risk of users downloading the screenshot thumbnails was slight and the potential loss in revenue was minimal).

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