Copyright and Intellectual Property Rights on the Internet
Copyright 2000, 2004, 2016 Rev. Gary Helm. All Rights Reserved.
Originally published as a Case Study: "Who Owns the Content?" as a part of my Graduate Studies in E-Commerce Business Legal Issues and the Internet, this article is a case study and not intended as legal advise. Individuals are advised to consult with Legal Council for legal advise.

Several years ago I invited a retired minister to be a revival speaker at the church where I was serving as the pastor.
The visiting minister was relatively well known for the quality and the content of his sermons.
The revival was to last five nights and the guest minister would deliver five sermons.
On the first night of the revival, I was impressed by the quality of the sermon content; I had not been disappointed.
The sermon had been longer than I had expected, but the content quality was superb.
The second night was also lengthy, but the content was superb and members of the congregation were talking about how much they had learned during the two sermons.
The third night I recognized part of the sermon content as being similar to the content in a book that had recently been published.

I decided to see how the sermon material compared to the content of the book.
I listened to the tape of the sermon, and found the location of the similar content in the book.
The material in the third sermon was from the third chapter of the book, and to my surprise the material was not merely similar, the content in both the sermon and the book were identical.

I then went back and listened to the first and second sermons, and their content was verbatim from the book.
That is when I realized the visiting minister had a photographic memory.

I did not say anything about my discovery to the visiting minister, and by the end of the fifth night of sermons he had in essence read the first five chapters of the book to the congregation.

At the time, I did question the ethical issues of plagerism related to reciting the book to the congregation and not giving credit where credit was due. And do admit there have been times when I wished I were one of those with a memory that could grasp the content of a book so readily.

However, the question I am posing in this article is not the ethics of plagerism, but of legal issues of copyright. Were the sermons an infringement of copyright, and relevant to content on a religious web site, what lessons can be learned from this illustration?

A definitive answer to the question, “was this an infringement of copyright,” may hinge on answers to additional questions relevant to the revival minister being a guest minister receiving financial benefit from delivering the five sermons, and the fact he did not give credit to the author for the content.

I will not address these issues in this article; what I will address is the application of the Copyright Act, 17 USC 106, in relationship to the exemption found in the Copyright Act, 17 USC 110(3).[1]

The Copyright Act, 17 USC 106, provides the owner of the copyright with “the exclusive right to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;
(4) in the case of literary, musical, dramatic, choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.[2]

One of the least obvious infringements of a copyright may be the use of copyrighted translations of religious texts.
For example, although the 1611 edition of the King James Version of the Bible is within the public domain, only the content of the scriptural text is within the public domain. Most modern translations of the Bible expressly state limitations on the use of their translations and extemporaneous material.

In the case of the visiting minister’s sermons, if the sermons had been reproduced in print, this would have been a copyright infringement.
The fact that taped copies of the sermons were made constitutes a copyright infringement.
Had copies of the tapes been made, or if the sermons had been made available on the Internet through streaming video or an audio presentation, these too would have been infringements of the copyright.

The copyright owner has the exclusive right to make or authorize copies of the copyrighted work.
Preparing derivative works is another area for potential copyright infringement by a religious organization.
The tapes of the sermons that were made when the minister preached the sermons could be considered a derivative work.

In addition to taping the minister’s sermon, many churches tape their worship services, make copies of the tapes, and distribute the tapes to interested persons.
More often than not, churches may be unaware their distribution of copyrighted works performed in the course of services constitutes an infringement of the copyright owner’s exclusive right to distribute their work.
Performance of copyrighted material may be an infringement of the copyright owner’s right “to perform the copyrighted work publicly,” however, the exemption found in the Copyright Act, 17 USC 110(3), can be taken into consideration at this point.

The Copyright Act, 17 USC 110(3), states: “Notwithstanding the provisions of section 106, the following are not infringements of copyright:” … “(3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly;”[5]

Because the guest minister’s use of the copyrighted work was performed in the context of the worship service, the minister is able to claim an exception to the copyright owner’s exclusive right.

Even though the guest minister’s presentation of the material was in whole from the book, and his use of the material from the book was complete, this use may have not constitute copyright infringement because the material was from a nondramatic literary work, and it was performed during the course of worship, and in the course of services at a place of worship.

In addition to the illustration using the guest minister’s sermon, which was a verbatim presentation of the book’s content, the exemption in the copyright code is that portion of the code that permits the public reading of copyrighted versions of scripture, the singing of hymns from hymnals, and the use of other copyrighted materials commonly sold for use in worship services.
This is the exemption that allows worship materials to be used as worship materials, while providing copyright owners the maximum protection against infringement.
Display can be an infringement, however, the display a copyrighted work in the order of service is included in the 17 USC 110(3) exemptions.

An example of an increasingly common violation of copyright owners right of display is in the use of overhead cells and computer generated visual displays used in worship services.
When the cell or display is produced in such a way as to violate the rights of the copyright owner, the display is also an infringement of the copyright.
In order for the display to be exempt from infringement under the 17 USC 110(3) exemptions allowing the display of copyrighted material in the order of worship, the item being displayed must itself be a legal copy.

The sixth right of the copyright owner can be relevant to the church’s use of sound recordings in the course of worship, especially when the worship service is subsequently streamed to the public via the Internet.

As current and future technologies provide churches with greater ease of infringing on the rights of copyright owners, churches need to become more diligent in making certain they are not infringing upon the rights of copyright owners.
I believe the sixth right of the copyright owner makes this all the more apparent.
The copyright code does provide a special exemption for the performance and display of copyrighted materials in the context of the worship service.
However, the exemption is not an all-inclusive exemption from other forms of infringement.

Reproduction of copyrighted works, derivative works, distribution, some forms of presentation, some forms of display, and “in the case of sound recording, to perform the copyrighted work publicly by means of a digital audio transmission,” may be an infringement of a copyright.

Churches and religious organizations need to be aware as they publish information to the Internet, they have entered the international market, where anyone in the world has general access to what the church has put on the Internet.
This brings to the forefront a host of international legal issues, and the potential for litigation in other parts of the world.

Before churches place information on the Internet, the question should be asked, “Can you do that on the Internet?” and unless you are thinking of publishing content that is uniquely your own, the answer is, probably not. -----------------------------------------------------------------------------

END NOTES
[1] http://www.loc.gov/copyright Copyright Laws of the United States of America and Related Laws Contained in Title 17 of the United States Code. Circular 92
[2] http://www.loc.gov/copyright Copyright Laws of the United States of America and Related Laws Contained in Title 17 of the United States Code. Circular 92
[3] http://www.loc.gov/copyright Copyright Laws of the United States of America and Related Laws Contained in Title 17 of the United States Code. Circular 92