Intellectual Property Law: Paraphrasing of copyrighted material (Part 1 of 2)

Paraphrasing of copyrighted material may reduce the probability that a court will find that copyright has been infringed; however, there have been many cases where a paraphrase that uses quite different words and sentence structure has been found to infringe on a prior work's copyright.

The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case.

Legal traditions.

Early years.

An early example of the concept of paraphrasing as a copyright issue arose with Johann Heinrich Zedler's application in 1730 for copyright protection in Saxony for his Grosses vollständiges Universal-Lexicon, one of the first encyclopedias. The publisher of a rival General Historical Lexicon said that Zedler's Universal Lexicon would not differ in content from this and other existing lexicons apart from paraphrasing. On 16 October 1730, the Upper Consistory court in Dresden rejected Zedler's request, and warned that he would be subject to confiscation and a fine if he reproduced any material from the General Historical Lexicon in his Universal Lexicon.

Laws on the degree of copying or paraphrasing that is considered permissible have become steadily more restrictive over the years. In his 2008 book Copyright's Paradox, discussing the conflict between protecting copyright and protecting free speech, Neil Netanel says, "Yeats  from Shelley; Kafka from Kleist and Dickens; Joyce from Homer; and T S Eliot from Shakespeare, Whitman and Baudelaire, all in ways that would infringe today's bloated copyright." Paraphrase may apply to music as well as to writing. It was commonplace for Baroque, Classical and Romantic composers to create variations on each other's work without permission. This would not be allowed today.

Copyright protection in Britain dates back to the 1556 Charter of the Worshipful Company of Stationers and Newspaper Makers. The Licensing of the Press Act 1662 gave publishers exclusive printing rights, but did not give any rights to authors. Parliament failed to renew the act in 1694, primarily to remove monopoly and encourage a free press. The Statute of Anne in 1710 prescribed a copyright term of fourteen years, and let the author renew for another fourteen years, after which the work went into the public domain. Over the years, additional acts and case law steadily refined the definitions of what could be protected, including derivative works, and the degree of protection given.

The Soviet Union's Copyright Act of 1925 in essence said that a work created by a minimal paraphrase of an existing text could be considered a new work eligible for copyright. By 1991, the Copyright law of the Soviet Union had evolved to give much more protection to the author. Free use, similar to the English common law concept of fair use, was only allowed if it did not infringe upon the normal exploitation of the work or the legitimate interests of the author.