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How Copyright affects the MSTS Community


Every so often the same issue comes up regarding distribution of MSTS models or repainting of MSTS models in the 'community' and there are often people who really do not know (or care) about what the law is in relation to this.

As a modeller who has strong views on this I thought it time to try and explain this subject in simple terms having first verified the facts from various online legal sources.

I must explain that I am not any type of lawyer however I have done some research and believe this to be the correct interpretation of the copyright law. You will find that even experts are proved wrong by Judges sometimes, which becomes 'precedent' for future cases. This info has been gleaned from various sites on the web, but mostly from http://www.whatiscopyright.org.

This editorial is written purely from a MSTS point of view but it should be valid for pretty much every thing else.

What I intend to do is break down the law into small sections and try and explain it and finally bullet point at the end to summarise.

Introduction

This editorial covers the basic definitions regarding copyrights and does not refer to the laws of any country in particular. Therefore, comparing this document to the particular laws of your country may arise in discrepancies. However, copyright laws vary from country to country but as a rule do not contravene or provide less copyright protection than the Berne Convention, provided the country in question is a member thereof.

Works such as MSTS models and textures fall under the protection of the Berne Union for the Protection of Literary and Artistic Property (Berne Convention) as they can be considered artistic.

What is Copyright?
Copyright is a protection that covers your MSTS creation, as long as it [ the work ] exists in some form, ie it has been saved to disk (You cannot copyright an idea). Copyright laws grant the creator the exclusive right to reproduce, prepare derivative works, distribute, perform and display the work publicly. Exclusive means only the creator of such work, not anybody who has access to it and decides to grab it, which in our case means everybody who downloads it.

When does Copyright Protection begin and what is required?
Copyright protection begins when any of the above described work is actually created and fixed in a tangible form.

The proper way to place a copyright notice is as follows: Copyright (first date of creation) (name of owner). Like this: Copyright 2002 Dave Babb.

There is no need to register your work with any organisation for copyright to be in effect.

You can if you wish save your work to a floppy disk (or CDROM) and mail it to yourself, (and don't open it when you get it back), this will at least 'prove' you created the work before anyone else via the postmark, but this is not really required as file creation dates indicate when the file was created and your would be much earlier than anyone who had downloaded your work. In the case of model authors, you will have access to the source files such as the the TSM/Canvas model file, which if you have not distributed it with the model or at any other time would be another protection as this file cannot be created by anyone else from your published work.

When does Copyright Protection end, or expire?
If a copyright statement reads, " Copyright 1998, 1999 Dave Babb." does that mean that my copyright expired in 1999? The dates that you see in a copyright statement do not refer to the dates that the owner's material will expire and become public domain - they actually refer to the dates that the material was created.

When you see several dates in a copyright statement, it simply means that certain things were created in one year and modified later. It could also mean that new things were created and added in a later year. It most definitely does not refer to the date that a copyright will expire. Expiration of a copyright actually takes place much later, and this period of validity begins from the date that you see in the copyright statement. The Berne Convention establishes a general and minimum period that lasts the life of the author and fifty years after his death. This applies to any country that has signed the Berne Convention, and these are just the minimum periods of protection. A member country is entitled to establish greater periods of protection, but never less than what has been established by the Berne Convention.

The Famous Symbol
Why does it say Copyright 2002 Dave Babb at the bottom of my model readme ? Those are the dates that I created and/or modified the model shape, graphics and is the date that I saved it to my hard drive. That entitles me to claim copyright. Only I, as the author and creator of this work, am entitled to use, reproduce and distribute this material unless someone else who wishes to use it obtains my prior written permission to use it as well, and only in the manner that I previously approve.

What does this mean?
That nobody may obtain my model and copy any part of it until I provide a written document that states, "Yes, you can use my work, but only in the manner that I deem appropriate."

Anybody who uses, copies or distributes my copyighted material in any manner, for commercial or personal purposes, without my written permission, would be committing an infringement of my copyright. If I, at any moment, detect a violation of my copyright by another individual or entity, I am entitled to assert a claim. It doesn't matter if you are a "newbie" or if you "don't know any better", a principle of law states: "Ignorance of the Law does not make one exempt from compliance thereof."

Copyrights and the Internet
Just because an MSTS model is made availible on the internet that does not make it Public Domain, The general (and incorrect) notion is that anything that is on the internet is public domain and may be taken without permission from the creator/owner. The fact that a model has been uploaded to a site that's main intention is to provide a place to download MSTS models from would infer that permission to download it for personal use is granted. But your use of that download is controlled by any conditions placed in the readme included with it.

Just because your driveway is not inside of your house, is it in the public domain? Does that give anybody off the street the right to stay on your driveway without your permission, even if they can see it from the street, or easily access it? The same basic principle applies to material published on the internet. Material found on the web may be copied freely only (i) if the copyright has expired or (ii) the copyright has been abandoned by the holder. Therefore, "internet" and "public domain" are not synonymous. Any work published on the internet is not automatically placed it in the public domain, unless the material in question complies with one or more of the characteristics mentioned.

What if I take someone else's model and texture files and change it around to suit my needs? (ie. reskin a loco) I own the "new" version, right? If you did any of that with the original owner's permission, and according to his/her terms and conditions than you own the "new" version. If not you may be committing copyright infringement and/or plagiarism. When you reskin, you take the existing texture and change it to suit your new requirement, you are still going to use some part of the authors work therefore your new reskin is a derivative work [to have or take origin], which put simply is something 'based on'. So because a reskin is based on a copyrighted work it is a deritive and therefore is covered by the authors copyright. Also you would be distributing the model shape and .eng files which would need the authors permission to distribute.

Fair Use
In copyright law there is a 'fair use' clause, which allows for the use of copyrighted work in certain circumstances, I have looked into this and am happy that none of the fair use purposes do not apply here. The uses are as follows: purposes of parody, news reporting, research and education about such copyrighted work.

You would hard pushed to get anything you might do with someone's model to fall into any of those purposes.

Summary

  • The author of any work has the exclusive right to decide how and when his work is copied and distributed. This includes work based on his work (ie reskins). This means that your use of the model is limited to the conditions that the author has specified. So if the author states you may not include it on a CD or post it to a website then there is a legal requirement on you to not do those things listed.
  • Copyright infringments have nothing to do with any monetary value. ie just becuase its free does not make copyright less important.
  • Posting something on the internet does not mean this is 'public domain'.
  • Giving something away free does not mean that it is 'public domain'.
  • While its not been discussed here, if you want to reskin / edit someone's model for your own private use and do not distribute this work then my view is it's probably fine. (What you do in your own bedroom in front of your PC is up to you and your god! :-) ).
  • I also would say that the majority of authors do not have a problem with you sending a copy of a download to someone else in an email if required.
  • If you do not have the authors permission to do it, then you may not do it.

It's about showing a bit of respect for the people that spend hours upon hours working on the models, routes and so forth. Surely it's not too much to expect that an author be contacted?

Dave Babb - buffy500@uktrainsim.com
aka buffy500



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