I recently did some reading on copyright in relation to early Buddhist texts in the Australian Copyright Council's informations sheets, and wrote to the Attorney General's department. Here are my conclusions, as I understand it these points apply in Australia but British and American copyright law are different on a couple of crucial points:

 Authorship copyright

  • Author's copyright lasting 75 years cannot be considered to apply to any ancient texts that have been published much longer than this and treated as public domain for hundreds or thousands of years.
  • In Australian copyright law, a transliteration, edition or even a translation of an original work does not itself count as an original work nor incur author's copyright as long as its distinctive and most important characteristic is still its continuity with the previous work; so, applying the same principle consistently, a transliteration, edition or translation of a public domain text cannot become an 'original work' unless it is substantially dis-continuous with the previous work. (This was confirmed by the AG's department to me.)
  • It seems therefore that under Australian copyright law, even an edition which involves quite a lot of reconstruction work is not 'original'.  

    Typographic copyright 

  • There is also a kind of copyright over typography and layout, but this only tyrannises the public for 25 years, and it only applies to making an identical facsimile copy. So re-typing a text, or even just copying and pasting it so that the formatting is not identical, would be enough to avoid infringing this kind of copyright.

    Fair use 

  • In most countries, for personal study and research, one is allowed to copy up to 10% or one chapter of a book, and one article in a journal, or if there are several articles on the same subject in a journal one can copy several.
  •  Australia, under a clause 'excepting publications 'not available through normal commercial means at a normal commercial price', books that are out of print can be copied in their entirety for personal study or research. Unfortunately, UK doesn't have this clause.  

    Differences in UK and USA

    In UK (and probably USA?) there is no exception for out of print books.

    In USA (and UK?) the definition of a derivative work would normally make even a direct translation into an 'original work'. 

If you are a lawyer, or a publisher (!), and you know any of the above to be mistaken, particularly in the specific case of any of the texts I have uploaded here for free redistribution, please just let me know.

In my opinion, copyright law needs drastically reducing because currently it favours publishers against the general public to an absurd extent, and sometimes in ways that actually do not benefit even the publishers at all.  I would like to see a general condition at least on authorship copyright that if the publication goes out of print for a year or more then the copyright automatically lapses and cannot be restored. This would allow publishers their profits, but would at the same time give them an incentive to keep rare publications in print for the benefit of the general public and scholars, and if they weren't interested in reprinting then anyone could redistribute without being able to claim copyright again.

Copyright infringement and the Vinaya

In my opinion, copyright infringment (even if it is conscious and deliberate), cannot be straightforwardly equated with ādinnādāna (taking what is not given) under parajika 2.

This doesn't necessarily mean that in some cases it would not be unethical, but the notion of 'intellectual property' is dubious in itself, and it certainly cannot be neatly fitted into either the 'moveable' or 'immoveable' categories of stealable objects since one is actually duplicating the item.

(As an example of another case similar to stealing but not technically so, consider how diverting a gift before it is given is a nissaggiya-pacittiya offence but not stealing, but after it has been given to a bhikkhu for another or for the sangha to divert it to oneself would be stealing.)

This is supported by the fact that under secular law the fact of copyright infringement is only decided retrospectively by a court, in this way it seems more like the commentarial concept of 'obligatory compensation' (bhandadeyya) that has been disprooved as a notion of 'taking what is not given', for example in BMC I. 

Even if one accepted the commentarial notion of obligatory compensation and copyright infringement as a possible basis for a parajika offence, then the point at which the offence would fall would be when the claimant of compensation gave up their case in or after a court case, just as in the case of  knowingly laying a false claim to ownership over land. 

There is an essaylette on copyright in relation to the Vinaya by Ven. Varado also, here:  How Copyright Law Relates to Vinaya 

I  don't totally agree with Ven. Varado' s reasoning here, but I quote it as another opinion on the same matter and to show that I'm not the only one who doubts the assumption that copyright infringement = stealing in terms of Vinaya.

I also believe it is wrong for a Buddhist to claim ownership over Dhamma, which is a presupposition of selling Dhamma books etc. In fact I think it makes one one of the 'five greatest theives' as the Buddha said of one who claims the Dhamma proclaimed by the Tathagata as his own. The Buddha gave the Dhamma freely, so it is wrong for any of his disciples to sell it.  (This would apply to the content of a Dhamma book but not necessarily the typography, the materials used to make the physical book, etc. so selling Dhamma books at the cost of printing would not necessarily be wrong, but it's a shame to waste the opportunity to make all-conquoring merit!