Copyright

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A copyright is a form of intellectual property which secures to its holder the exclusive right to produce copies of his or her works of original expression, such as a literary work, movie, musical work or sound recording, painting, computer program, or industrial design, for a defined, yet extendable, period of time.

Copyrights do not cover ideas or facts, only the particular expressions of such. A copyright on a Mickey Mouse cartoon, for example, does not prevent others from creating artistic works about talking mice. It only prohibits them the right to distribute Disney's cartoon, and to create derivative works closely copying that particular talking mouse.

Both copyrights and patents grant certain exclusive rights over their respective subject matter that are enforceable against everyone (with some exceptions, discussed below). This is in contrast to trademarks, which are almost always only enforceable against competitors in the same product market, and only against certain limited commercial uses. For instance, in the case of the Mickey Mouse cartoon, the image and name of Mickey Mouse is trademarked, while the cartoon itself is copyrighted. Also in contrast to trademarks, copyrights (and patents) are limited to a statutorily-defined, though extendable, number of years, during which the copyright owner does not actually have to make use of his work in order to keep others from doing so. After the term is up, the copyrighted work enters the public domain and is available for anyone to freely use, as courts in the United States and the United Kingdom have rejected the doctrine of a common law copyright.

Background

Rights of copyright holder

A copyright holder is typically secured exclusive rights:

  • to produce copies of the work and to sell those copies (including, typically, electronic copies)
  • to import or export the work
  • to create derivative works
  • to perform or display the work publicly
  • to sell or assign these rights to others

What is meant by the phrase "exclusive right" is that the copyright holder and only the copyright holder is free to do these things; everyone else is prohibited from doing them without the copyright holder's consent. Copyright is often called a "negative right", to stress that it has less to do with permitting people (e.g. authors) to do anything, and more to do with prohibiting people (e.g. readers, viewers, or listeners) from doing something: reproducing the copyrighted work. In this way it is similar to the Unregistered Design Right in English law and European law. This assertion however is based on a philosophical interpretation of copyright law as an entity, and is not universally shared. Equally there is debate as to whether copyright should be considered a property right or a moral right. Many argue that justifying copyright purely as a negative right misses the whole point, which is to encourage authors to create new works, thus enriching the public domain, and not merely to restrict others from publishing information.

United States Constitution, Article I, Section 8, Clause 8: "Congress shall have Power [...] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The terms "copyright" and "patent" do not occur in the U.S. Constitution; they are merely the forms of exclusive rights that the American legislature is constitutionally empowered to secure to accomplish the stated purpose of promoting the progress of science and useful arts.

Transfer of rights

Copyrights may be granted, sold, or relinquished. Very often, a copyright holder will, by contract, transfer his copyrights to a corporation. For example, a musician who records an album will sign an agreement with a record company in which the musician agrees to transfer all copyrights in the recordings to the company in exchange for royalties and other terms. One might ask why a copyright holder would ever give up his rights. The answer is that large companies generally have production and marketing capabilities far beyond that of the author. In the digital age of music, music may be copied and distributed for a minimal cost through the Internet, but record labels attempt to provide the service of promoting and marketing the artist so that the work can reach a much larger audience. A copyright holder does not have to transfer all rights completely. Some of the rights may be transferred, or else the copyright holder may grant another party a non-exclusive license to copy and/or distribute the work in a particular region.

Idea-expression dichotomy and the merger doctrine

Main article: Idea-expression divide

A copyright covers the expression of an idea, not the idea itself — this is called the idea/expression or fact/expression dichotomy. For example, if a book is written describing a new way to organize books in a library, a copyright does not prohibit a reader from freely using and describing that concept to others; it is only the particular expression of that process as originally described that is protected by copyright. One might be able to obtain a patent for the method, but that is a different subject. Compilations of facts or data may also be copyrighted, but such a copyright is thin; it only applies to the particular selection and arrangement of the facts, not to the particular facts themselves.

In some cases, ideas may be capable of intelligible expression in only one or a limited number of ways. Therefore even the expression in these circumstances is not covered. In the United States this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. Merger is often pleaded as an affirmative defense to charges of infringement.

The first-sale doctrine

Main article: first-sale doctrine

Note that copyright law does not restrict anyone from reselling legitimately obtained copies of copyrighted works, provided that those copies were originally produced by or with the permission of the copyright holder. Thus it is legal, for example, to resell a copyrighted book or CD you have purchased. In the United States this is known as the first-sale doctrine, and was established in the U.S. court system to clarify the legality of reselling books in used book stores. Elsewhere it has other names; in the United Kingdom it is known as "exhaustion of rights" and is a principle which applies to other intellectual property rights.

Of course, it may be wondered why the exclusive right to sell copies of one's work needs to be specifically provided for by law, as the sale of unauthorized copies necessarily means the copyright holder's exclusive right to produce such copies has been breached.

In addition, copyright, in most cases, does not prohibit one from acts such as modifying, defacing, or destroying his or her own legitimately obtained copies of copyrighted works, so long as duplication is not involved. However, in countries that implement moral rights, a copyright owner can in some cases successfully prevent the mutilation or destruction of a work that is publicly visible.

Fair use and fair dealing

Main articles: fair use and fair dealing.

Copyright does not prohibit all copying. In the United States, the fair use doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. Section 107, permits some copying and distribution. The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider in a fair use analysis. In the United Kingdom and many other countries in the former British Empire, a similar notion of fair dealing exists. Built by judicial precedent, it tends to be quite ill defined, except in Canada, where private copying for personal use has been expressly permitted by statute since 1999.

In the United States the AHRA (Audio Home Recording Act Codified in Section 10, 1992) prohibits action against consumers making noncommercial recordings of music, in return for royalties on both media and devices plus mandatory copy-control mechanisms on recorders.

Section 1008. Prohibition on certain infringement actions
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Later acts amended US Copyright law so that making as few as 10 copies are considered commercial, and the Digital Millennium Copyright Act effectively permits DRM (Digital Rights/Restrictions Management) to prevent manufacture, importation, or distribution of recording devices if the device bypasses an access or copy control.

Statutory and compulsory licenses

Some jurisdictions may provide that certain classes of copyrighted works (for example, musical works in the United States) be made available under a statutory license. This is also called a compulsory license, because under this scheme, anyone who wishes to copy a covered work does not need the permission of the copyright owner, but instead merely files the proper notice and pays a set fee established by statute (or by agency decision under statutory guidance) for every copy made. Failure to follow the proper procedures would then result in the copyist being vulnerable to an infringement suit. Because of the difficulty of following this process for every individual work, copyright collectives and performing rights organisations (such as ASCAP, BMI, RIAA and MPAA) have been formed to sell the rights to hundreds of works at once. Though this market solution bypasses the statutory license, the availability of the statutory fee still helps dictate the price per work that collective rights organizations charge, driving it down to what the avoidance of procedural hassle would justify.

How copyrights are obtained and enforced

Typically, a work must meet minimal standards of originality in order to qualify for a copyright, and the copyright expires after a set period of time if not extended. Different countries impose different tests, although generally the requirements are low; in the United Kingdom there has to be some 'skill, originality and work' which has gone into it. However, even fairly trivial amounts of these qualities are sufficient for determining whether a particular act of copying constitutes an infringement of the author's original expression.

In the United States, copyright has relatively recently been made automatic, which has had the effect of making it more like a property right. Thus, as with property, a copyright need not be granted or obtained through official registration with the government. Once such an expression as may be copyrighted is secured in a fixed medium (such as a drawing, sheet music, a videotape or a letter), the copyright holder is prepared to enforce his or her exclusive rights. However, while a copyright need not be officially registered for the author to begin excercising his exclusive rights, registration of works does have its benefits: serving as prima facie evidence of a valid copyright and enabling the copyright holder to seek statutory damages and attorney's fees (whereas registering after an infringement only enables one to receive actual damages and profits). The original owner of the copyright may be the employer of the actual author rather than the author himself if the work is a "work for hire". Again, this principle is widespread; in English law the Copyright Designs and Patents 1988 provides that where a work in which copyright subsists is made by an employee in the course of that employment, the copyright is automatically assigned to the employer.

Copyrights are generally enforced by the owner in a civil law court, but there are also criminal infringement statutes. Criminal sanctions are generally aimed at serious counterfeiting activity, but may now become more commonplace as the copyright collectives like the RIAA are more and more targeting the file sharing home Internet user. Thus far however, these cases have usually been settled outside of court, with demands of payment of several thousand dollars accompanied by nothing more than a threat to sue the file sharer, thus such cases do not even make it to civil law courts in reality.

Copyright notices

Due to previously mandatory requirements, in general when a work such as a book or movie was created the material contained a copyright notice. This notice was specified by the statutes as requiring a letter c inside a circle ©, or the word "copyright", followed by the year(s) of the copyright and the copyright owner's name. Certain alternative formats were permitted for certain types of works. This functioned to inform any potential users that the work is covered by copyright.

This requirement was generally the result of United States legal requirements and has, since 1989 in the United States, almost completely been made optional. With the exception of a small number of countries which still require notice to be on the work, this requirement is generally optional except for works which were originally created before the particular country became a member of the Berne Convention for the Protection of Literary and Artistic Works, otherwise known as the Berne Union, or Berne Convention.

Notice is not required for the work to be legally protected in nations that have acceded to the Berne Convention, which did away with such formalities. Under nearly all current copyright régimes, a work is generally covered by copyright from the moment of its creation whether it displays a notice or not. However, the presence of a notice may make it easier to claim certain damages in infringement lawsuits, because of the presumption notice may bring that a defendant's infringement was intentional.

The symbol, ©, is Unicode symbol 00A9 in hexadecimal, and can be entered into (X)HTML as ©, ©, or ©

Year(s) of copyright

The year(s) of copyright are listed after the © symbol. If the work has been modified (i.e., a new edition) and recopyrighted, there will be more than one year listed.

All rights reserved

The phrase, All rights reserved, was a formal notice that all rights granted under existing copyright law are retained by the copyright holder and that legal action may be taken against copyright infringement. It was provided as a result of the Buenos Aires Convention of 1910, which required some statement of reservation of rights to grant international coverage in all the countries that were signatory to that convention. While it is commonplace to see it, this notice is now superfluous, as every country that is a member of the Buenos Aires Convention is also a member of the Berne Convention, which requires copyright to be valid without any formality of notice.

Copyrighting fonts

In the United States, typeface designs are not copyrightable, but may be patentable if novel enough.

In Europe, Germany (in 1981) and the UK (in 1989) have passed laws making typeface designs copyrightable. The UK law is even retroactive, so designs produced before 1989 are also copyrighted, if the copyrights wouldn't have already expired (the German one is not retroactive).

Rights beyond copyright

Many European countries (and other countries as a result of the GATT Trade Related Intellectual Property or "TRIPs" agreement) further provide for moral rights in addition to copyrights possessed by authors, such as the right to have their work acknowledged and not be disparaged. (Famously, the Monty Python comedy troupe managed to use these rights to sue American TV network ABC in 1975 for airing re-edited versions of Monty Python's Flying Circus.)

The American exclusive rights tradition is inconsistent with the notion of moral rights as it was constituted in the Civil Code tradition stemming from France's revolution. In the United States, exclusive rights are statutory and granted by Congress. The first major copyright case in the United States, Wheaton v. Peters, established that copyright was not a natural right or a common law right. When the United States signed the Berne Convention, they stipulated that the Convention's "moral rights" provisions were addressed sufficiently by other statutes, such as laws covering libel and slander.

In most of Europe it is not possible for authors to assign their moral rights (unlike the copyright itself, which is regarded as an item of property which can be sold, licensed, lent, mortgaged or given like any other property). They can agree not to enforce them (and such terms are very common in contracts in Europe). There may also be a requirement for the author to 'assert' these moral rights before they can be enforced. In many books, for example, this is done on a page near the beginning, in amongst the British Library/Library of Congress data.

Some European countries also provide for artist resale rights, which mean that artists are entitled to a portion of the appreciation of the value of their work each time it is sold. These rights are granted on the background of a different tradition, which granted droits d'auteur rather than copyright, also granting all creators various moral rights beyond the economic rights recognized in most copyright jurisdictions. (see also parallel importation.)

History of copyright

Main article: History of copyright

Authors, patrons, and owners of works throughout the ages have tried to direct and control how copies of such works could be used once disseminated to others. Mozart's patron, Baroness von Waldstätten, allowed his compositions to be freely performed, while Handel's patron (George I, the first of the Hanoverian kings) jealously guarded "Water Music."

Access control was always used as a measure to disallow works from being copied without the consent of the author/owner. The Library of Alexandria (aka “The Kings Library”) wasn’t a place that an average person could walk into and borrow a book from. Ptolemy III paid the sum of fifteen talents of silver to be allowed to copy the works of Aeschylus, Sophocles and Euripides.

While monopolies in general were certainly conceived of well before the invention of the printing press, copyright in particular does not appear to have been developed as a concept until then. Prior to Gutenberg's development of movable type, which made mass reproduction of printed works quick and cheap, the process of copying a work was as labor intensive and expensive as creating the original. It appears publishers, rather than authors, were the first to seek restrictions on copying printed works. Given that publishers now obtain the copyright from the authors as a condition of mass reproduction of a work, one of the criticisms of the current system is that it benefits publishers more than it does authors. This is a chief argument of the proponents of peer-to-peer file sharing systems.

While governments had previously granted monopoly rights to publishers to sell printed works, the modern concept of copyright originated in 1710 with the British Statute of Anne. This statute first accorded exclusive rights to authors rather than publishers, and it included protections for consumers of printed work ensuring that publishers could not control their use after sale. It also limited the duration of such exclusive rights to 28 years, after which all works would pass into the public domain.

The Berne Convention of 1886 first established the recognition of copyrights between sovereign nations. (Copyrights were also provided by the Universal Copyright Convention of 1952, but that convention is today largely of historical interest.) Under the Berne convention, copyrights for creative works generally are not granted, but rather automatically assumed; an author does not have to "register" or "apply for" a copyright. As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all exclusive rights to the work and any derivative works unless and until the author explicitly disclaims them, or until the copyright expires.

Critique of copyright

Critiques of copyright as a whole fall broadly into two camps: Those who assert that the very concept of copyright has never been of net benefit to society, and has always served simply to enrich a few at the expense of creativity; and those who assert that the current copyright system doesn't work in the new Information society.

Among the latter group, there are also some who continue to agree with copyright as a concept to protect authors' rights, but feel that it 'outlives its welcome' by granting protection for too long, often far beyond the lifetime of its owner, and is therefore of little direct benefit to him or her. This is typically attributed to corporate lobbying.

To most critics, the general problem is that the current (international) copyright system undermines its own goal (Boyle 1996, 142). The concepts of the public domain and the intrinsic freedom of information are necessary precepts for creators to be able to build on published expression. But these are gradually being eroded, as copyright terms are repeatedly extended to last beyond the lifetime of the audience which experienced and knows of the original work.

Other copyright scholars believe that irrespective of contemporary advances in technology, copyright remains the fundamental way by which authors, sculptors, artists, musicians and others can fund the creation of new works, and that absent legal protection, many valuable books and pieces of art would not be created. This interest is arguably served even by repeated extension of copyright terms to encompass multiple generations beyond the copyright holder's life, not only because many "authors" and copyright holders are corporations, but also because the right of an author's heirs to continue to profit from a protected work may provide a substantial part of the incentive to create.

One counter-argument to this, however, is the recent success of free software projects such as Linux, Mozilla Firefox, and the Apache web server. These popular products have demonstrated that quality works can be created, even in the absence of copyright-enforced monopoly rents[1]. It should be noted, however, that these products still use copyright in order to enforce their license terms, even if those licenses are not for monetary gain. In particular, the GNU General Public License uses copyright itself to ensure the free nature of a work (copyleft), rather than securing exclusive rights for the owner.

Copyrighted works replicated onto digital media are easily and trivially copied via file sharing, and those who do this routinely break copyright laws hundreds or thousands of times, typically with minimal thought or concern. Attempts to prevent this have been largely unsuccessful, and file sharing almost never results in severe consequences for the violators. Producers of copyrighted material often attribute losses in their sales to online copying, yet they generally continue to produce material and make profits. This lack of apparent effect has been gradually eroding the belief that copyright as presently constructed is indispensable. A few artists actually support the file sharing of their own works, arguing that it expands their audience to include people who would not otherwise be able or willing to legally purchase their material.

It can be argued that, rather than criminalise the many millions of file sharers around the world who now routinely use the internet to commit acts that breach copyright (given that copyright laws have proven unenforceable), copyright holders use the legal system to apply extortion by charging for products that are readily available for free. Bill Gates is on record as saying that there is no way technically of preventing copyrighted digital material being replicated, so it is likely that future attempts to enforce copyrights will become uneconomic, as well as unpopular politically.

Copyright can also be used to stifle political criticism. For example, in the US the contents of talk shows and similar programs are covered by copyright. Robert Greenwald, a director of Uncovered: The Whole Truth About the Iraq War documentary was refused the right to use a clip of a George W. Bush interview from NBC's Meet the Press. Although the fair use provisions may apply in such cases, the risks and the pressure from insurance companies usually prevents the use of materials without permission.

In the US in 2003, controversial changes implemented by the Sonny Bono Copyright Term Extension Act extending the length of copyright under U.S. copyright law by 20 years were constitutionally challenged unsuccessfully in the Supreme Court. The Court, in the case called Eldred v. Ashcroft, held inter alia that in placing existing and future copyrights in parity in the CTEA, Congress acted within its authority and did not transgress constitutional limitations.

Some online authors, such as Cory Doctorow, retain the copyright to their work but license it for free distribution (for example under a Creative Commons License). This has the benefit of letting authors loosen some of the barriers that copyright imposes, allowing them to partially contribute the work to the community while retaining other exclusive rights they hold in it.

The current battle on copyright

See main article: copyright social conflict

In the past few years, as filesharing is growing, newer generations are more comfortable with digital technological freedom, and the major record labels and Hollywood are losing profits, there has been a move by industry and public interest groups alike to enter the public education system to teach about curriculum from their perspectives. The lobbying group for MPAA have a curriculum called What's the Diff? taught by a hired group of volunteers called Junior Achievement - but has since been removed. The Business Software Alliance also has their own curriculum program called Play it Cybersafe, which is distributed to school children through a Teacher's magazine called the Weekly Reader. There seems to be a general consensus that there needs to be some curriculum materials for school-aged children on copyright. A public-wiki has been installed by Downhill Battle to build a copyright curriculum called Copyright Curriculum for teachers to download and use in their classrooms. The American Librarian Association will also be releasing their own curriculum for librarians to distribute in winter 2004.

Unusual copyright grants

On rare occasions, rights can be granted outside of usual legislation. When the current UK copyright legislation was debated in parliament, former Prime Minister Lord Callaghan successfully proposed an amendment entitling the Great Ormond Street Hospital for Sick Children to indefinitely retain the rights to payments of royalties for performances of Peter Pan. This privelege can be seen explicitly written into Schedule 6 of the Act.

The King James Version of the bible also has an unusual status: While it is in the public domain throughout most of the world, in the UK production must be authorized by the Crown. Lillys Latin Grammar was also under perpetual crown copyright as of 1911.

Related topics

National copyright laws

International treaties concerning copyright

Advocates of copyright law reform

See also

Further reading

  • Bruce Lehman: Intellectual Property and the National Information Infrastructure (Report of the Working Group on Intellectual Property Rights, 1995)
  • John Gantz & Jack B. Rochester: Pirates of the Digital Millenium, Financial Times Prentice Hall, 2005, ISBNO-13-146315-2

External links

Adapted from the Wikipedia article, "Copyright" http://en.wikipedia.org/wiki/copyright April 18. 2005