From Wikipedia, the free encyclopedia
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time.
The creative work may be in a literary, artistic, educational, or
musical form. Copyright is intended to protect the original expression
of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.
Some jurisdictions require "fixing" copyrighted works in a
tangible form. It is often shared among multiple authors, each of whom
holds a set of rights to use or license the work, and who are commonly
referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and moral rights such as attribution.
Copyrights can be granted by public law and are in that case
considered "territorial rights". This means that copyrights granted by
the law of a certain state, do not extend beyond the territory of that
specific jurisdiction. Copyrights of this type vary by country; many
countries, and sometimes a large group of countries, have made
agreements with other countries on procedures applicable when works
"cross" national borders or national rights are inconsistent.
Typically, the public law duration of a copyright expires 50 to 100 years after the creator dies, depending on the jurisdiction. Some countries require certain copyright formalities
to establishing copyright, others recognize copyright in any completed
work, without a formal registration. When the copyright of a work
expires, it enters the public domain.
History
European output of books before the advent of copyright, 6th century to 18th century. Blue shows printed books.
Log-lin plot; a straight line therefore shows an exponential increase.
Background
The concept of copyright developed after the printing press came into use in Europe in the 15th and 16th centuries.
The printing press made it much cheaper to produce works, but as there
was initially no copyright law, anyone could buy or rent a press and
print any text. Popular new works were immediately re-set
and re-published by competitors, so printers needed a constant stream
of new material. Fees paid to authors for new works were high, and
significantly supplemented the incomes of many academics.
Printing brought profound social changes. The rise in literacy across Europe led to a dramatic increase in the demand for reading matter. Prices of reprints were low, so publications could be bought by poorer people, creating a mass audience.
In German language markets before the advent of copyright, technical
materials, like popular fiction, were inexpensive and widely available;
it has been suggested this contributed to Germany's industrial and
economic success.
After copyright law became established (in 1710 in England and
Scotland, and in the 1840s in German-speaking areas) the low-price mass
market vanished, and fewer, more expensive editions were published;
distribution of scientific and technical information was greatly
reduced.
Conception
The concept of copyright first developed in England. In reaction to the printing of "scandalous books and pamphlets", the English Parliament passed the Licensing of the Press Act 1662, which required all intended publications to be registered with the government-approved Stationers' Company, giving the Stationers the right to regulate what material could be printed.
The Statute of Anne,
enacted in 1710 in England and Scotland provided the first legislation
to protect copyrights (but not authors' rights). The Copyright Act of
1814 extended more rights for authors but did not protect British from
reprinting in the US. The Berne International Copyright Convention
of 1886 finally provided protection for authors among the countries who
signed the agreement, although the US did not join the Berne Convention
until 1989.
In the US, the Constitution grants Congress the right to
establish copyright and patent laws. Shortly after the Constitution was
passed, Congress enacted the Copyright Act of 1790,
modeling it after the Statute of Anne. While the national law protected
authors’ published works, authority was granted to the states to
protect authors’ unpublished works. The most recent major overhaul of
copyright in the US, the 1976 Copyright Act,
extended federal copyright to works as soon as they are created and
"fixed", without requiring publication or registration. State law
continues to apply to unpublished works that are not otherwise
copyrighted by federal law.
This act also changed the calculation of copyright term from a fixed
term (then a maximum of fifty-six years) to "life of the author plus 50
years". These changes brought the US closer to conformity with the Berne
Convention, and in 1989 the United States further revised its copyright
law and joined the Berne Convention officially.
Copyright laws allow products of creative human activities, such
as literary and artistic production, to be preferentially exploited and
thus incentivized. Different cultural attitudes, social organizations,
economic models and legal frameworks are seen to account for why
copyright emerged in Europe and not, for example, in Asia. In the Middle Ages
in Europe, there was generally a lack of any concept of literary
property due to the general relations of production, the specific
organization of literary production and the role of culture in society.
The latter refers to the tendency of oral societies, such as that of
Europe in the medieval period, to view knowledge as the product and
expression of the collective, rather than to see it as individual
property. However, with copyright laws, intellectual production comes to
be seen as a product of an individual, with attendant rights. The most
significant point is that patent and copyright laws support the
expansion of the range of creative human activities that can be
commodified. This parallels the ways in which capitalism led to the commodification of many aspects of social life that earlier had no monetary or economic value per se.
Copyright has developed into a concept that has a significant
effect on nearly every modern industry, including not just literary
work, but also forms of creative work such as sound recordings, films, photographs, software, and architecture.
National copyrights
Often seen as the first real copyright law, the 1709 British Statute of Anne gave the publishers rights for a fixed period, after which the copyright expired.
The act also alluded to individual rights of the artist. It began,
"Whereas Printers, Booksellers, and other Persons, have of late
frequently taken the Liberty of Printing ... Books, and other Writings,
without the Consent of the Authors ... to their very great Detriment,
and too often to the Ruin of them and their Families:".
A right to benefit financially from the work is articulated, and court
rulings and legislation have recognized a right to control the work,
such as ensuring that the integrity of it is preserved. An irrevocable
right to be recognized as the work's creator appears in some countries'
copyright laws.
The Copyright Clause
of the United States, Constitution (1787) authorized copyright
legislation: "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." That is, by guaranteeing
them a period of time in which they alone could profit from their works,
they would be enabled and encouraged to invest the time required to
create them, and this would be good for society as a whole. A right to
profit from the work has been the philosophical underpinning for much
legislation extending the duration of copyright, to the life of the
creator and beyond, to their heirs.
The original length of copyright in the United States was
14 years, and it had to be explicitly applied for. If the author wished,
they could apply for a second 14‑year monopoly grant, but after that
the work entered the public domain, so it could be used and built upon by others.
Copyright law was enacted rather late in German states,
and the historian Eckhard Höffner argues that the absence of copyright
laws in the early 19th century encouraged publishing, was profitable for
authors, led to a proliferation of books, enhanced knowledge, and was
ultimately an important factor in the ascendency of Germany as a power
during that century.
However, empirical evidence derived from the exogenous differential
introduction of copyright in Napoleonic Italy shows that "basic
copyrights increased both the number and the quality of operas, measured
by their popularity and durability".
International copyright treaties
The Pirate Publisher—An International Burlesque that has the Longest Run on Record, from
Puck,
1886, satirizes the then-existing situation where a publisher could
profit by simply copying newly published works from one country, and
publishing them in another, and vice versa.
The 1886 Berne Convention first established recognition of copyrights among sovereign nations, rather than merely bilaterally. Under the Berne Convention, copyrights for creative works
do not have to be asserted or declared, as they are automatically in
force at creation: an author need not "register" or "apply for" a
copyright in countries adhering to the Berne Convention.
As soon as a work is "fixed", that is, written or recorded on some
physical medium, its author is automatically entitled to all copyrights
in the work, and to any derivative works unless and until the author
explicitly disclaims them, or until the copyright expires. The Berne
Convention also resulted in foreign authors being treated equivalently
to domestic authors, in any country signed onto the Convention. The UK
signed the Berne Convention in 1887 but did not implement large parts of
it until 100 years later with the passage of the Copyright, Designs and Patents Act 1988.
Specially, for educational and scientific research purposes, the Berne
Convention provides the developing countries issue compulsory licenses
for the translation or reproduction of copyrighted works within the
limits prescribed by the Convention. This was a special provision that
had been added at the time of 1971 revision of the Convention, because
of the strong demands of the developing countries. The United States did
not sign the Berne Convention until 1989.
The United States and most Latin American countries instead entered into the Buenos Aires Convention in 1910, which required a copyright notice on the work (such as all rights reserved), and permitted signatory nations to limit the duration of copyrights to shorter and renewable terms. The Universal Copyright Convention was drafted in 1952 as another less demanding alternative to the Berne Convention, and ratified by nations such as the Soviet Union and developing nations.
The regulations of the Berne Convention are incorporated into the World Trade Organization's TRIPS agreement (1995), thus giving the Berne Convention effectively near-global application.
In 1961, the United International Bureaux for the Protection of Intellectual Property signed the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. In 1996, this organization was succeeded by the founding of the World Intellectual Property Organization, which launched the 1996 WIPO Performances and Phonograms Treaty and the 2002 WIPO Copyright Treaty, which enacted greater restrictions on the use of technology to copy works in the nations that ratified it. The Trans-Pacific Partnership includes intellectual Property Provisions relating to copyright.
Copyright laws are standardized somewhat through these
international conventions such as the Berne Convention and Universal
Copyright Convention. These multilateral treaties have been ratified by
nearly all countries, and international organizations such as the European Union or World Trade Organization require their member states to comply with them.
Obtaining protection
Ownership
The original holder of the copyright may be the employer of the author rather than the author themself if the work is a "work for hire". For example, in English law
the Copyright, Designs and Patents Act 1988 provides that if a
copyrighted work is made by an employee in the course of that
employment, the copyright is automatically owned by the employer which
would be a "Work for Hire". Typically, the first owner of a copyright is
the person who created the work i.e. the author. But when more than one person creates the work, then a case of joint authorship can be made provided some criteria are met.
Eligible works
Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works". Specifics vary by jurisdiction, but these can include poems, theses, fictional characters, plays and other literary works, motion pictures, choreography, musical compositions, sound recordings, paintings, drawings, sculptures, photographs, computer software, radio and television broadcasts, and industrial designs. Graphic designs and industrial designs may have separate or overlapping laws applied to them in some jurisdictions.
Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed. For example, the copyright to a Mickey Mouse cartoon restricts others from making copies of the cartoon or creating derivative works based on Disney's particular anthropomorphic
mouse, but does not prohibit the creation of other works about
anthropomorphic mice in general, so long as they are different enough to
not be judged copies of Disney's. Note additionally that Mickey Mouse is not copyrighted because characters cannot be copyrighted; rather, Steamboat Willie is copyrighted and Mickey Mouse, as a character in that copyrighted work, is afforded protection.
Originality
Typically, a work must meet minimal standards of originality
in order to qualify for copyright, and the copyright expires after a
set period of time (some jurisdictions may allow this to be extended).
Different countries impose different tests, although generally the
requirements are low; in the United Kingdom there has to be some "skill, labour, and judgment" that has gone into it. In Australia
and the United Kingdom it has been held that a single word is
insufficient to comprise a copyright work. However, single words or a
short string of words can sometimes be registered as a trademark instead.
Copyright law recognizes the right of an author based on whether the work actually is an original creation, rather than based on whether it is unique;
two authors may own copyright on two substantially identical works, if
it is determined that the duplication was coincidental, and neither was
copied from the other.
Registration
In all countries where the Berne Convention
standards apply, copyright is automatic, and need not be obtained
through official registration with any government office. Once an idea
has been reduced to tangible form, for example by securing it in a fixed
medium (such as a drawing, sheet music, photograph, a videotape, or a
computer file), the copyright holder is entitled to enforce their
exclusive rights.
However, while registration is not needed to exercise copyright, in
jurisdictions where the laws provide for registration, it serves as prima facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney's fees. (In the US, registering after an infringement only enables one to receive actual damages and lost profits.)
A widely circulated strategy to avoid the cost of copyright registration is referred to as the poor man's copyright. It proposes that the creator send the work to themself in a sealed envelope by registered mail, using the postmark to establish the date. This technique has not been recognized in any published opinions of the United States courts. The United States Copyright Office says the technique is not a substitute for actual registration. The United Kingdom Intellectual Property Office
discusses the technique and notes that the technique (as well as
commercial registries) does not constitute dispositive proof that the
work is original or establish who created the work.
Fixing
The Berne Convention
allows member countries to decide whether creative works must be
"fixed" to enjoy copyright. Article 2, Section 2 of the Berne Convention
states: "It shall be a matter for legislation in the countries of the
Union to prescribe that works in general or any specified categories of
works shall not be protected unless they have been fixed in some
material form." Some countries do not require that a work be produced in
a particular form to obtain copyright protection. For instance, Spain,
France, and Australia do not require fixation for copyright protection.
The United States and Canada, on the other hand, require that most works
must be "fixed in a tangible medium of expression" to obtain copyright
protection.
US law requires that the fixation be stable and permanent enough to be
"perceived, reproduced or communicated for a period of more than
transitory duration". Similarly, Canadian courts consider fixation to
require that the work be "expressed to some extent at least in some
material form, capable of identification and having a more or less
permanent endurance".
Note this provision of US law: c) Effect of Berne
Convention.—No right or interest in a work eligible for protection under
this title may be claimed by virtue of, or in reliance upon, the
provisions of the Berne Convention, or the adherence of the United
States thereto. Any rights in a work eligible for protection under this
title that derive from this title, other Federal or State statutes, or
the common law, shall not be expanded or reduced by virtue of, or in
reliance upon, the provisions of the Berne Convention, or the adherence
of the United States thereto.
Copyright notice
A copyright symbol used in copyright notice
A copyright symbol embossed on a piece of paper.
Before 1989, United States law required the use of a copyright notice, consisting of the copyright symbol (©, the letter C
inside a circle), the abbreviation "Copr.", or the word "Copyright",
followed by the year of the first publication of the work and the name
of the copyright holder.
Several years may be noted if the work has gone through substantial
revisions. The proper copyright notice for sound recordings of musical
or other audio works is a sound recording copyright symbol (℗, the letter P inside a circle), which indicates a sound recording copyright, with the letter P indicating a "phonorecord". In addition, the phrase All rights reserved
was once required to assert copyright, but that phrase is now legally
obsolete. Almost everything on the Internet has some sort of copyright
attached to it. Whether these things are watermarked, signed, or have
any other sort of indication of the copyright is a different story
however.
In 1989 the United States enacted the Berne Convention Implementation Act,
amending the 1976 Copyright Act to conform to most of the provisions of
the Berne Convention. As a result, the use of copyright notices has
become optional to claim copyright, because the Berne Convention makes
copyright automatic.
However, the lack of notice of copyright using these marks may have
consequences in terms of reduced damages in an infringement lawsuit –
using notices of this form may reduce the likelihood of a defense of
"innocent infringement" being successful.
Enforcement
Copyrights are generally enforced by the holder in a civil law court, but there are also criminal infringement statutes in some jurisdictions. While central registries
are kept in some countries which aid in proving claims of ownership,
registering does not necessarily prove ownership, nor does the fact of
copying (even without permission) necessarily prove
that copyright was infringed. Criminal sanctions are generally aimed at
serious counterfeiting activity, but are now becoming more commonplace
as copyright collectives such as the RIAA are increasingly targeting the file sharing home Internet user. Thus far, however, most such cases against file sharers have been settled out of court. (See Legal aspects of file sharing)
In most jurisdictions the copyright holder must bear the cost of
enforcing copyright. This will usually involve engaging legal
representation, administrative or court costs. In light of this, many
copyright disputes are settled by a direct approach to the infringing
party in order to settle the dispute out of court.
"...by 1978, the scope was expanded to apply to any 'expression'
that has been 'fixed' in any medium, this protection granted
automatically whether the maker wants it or not, no registration
required."
Copyright infringement
For a work to be considered to infringe upon copyright, its use must
have occurred in a nation that has domestic copyright laws or adheres to
a bilateral treaty or established international convention such as the Berne Convention or WIPO Copyright Treaty. Improper use of materials outside of legislation is deemed "unauthorized edition", not copyright infringement.
Statistics regarding the effects of copyright infringement are
difficult to determine. Studies have attempted to determine whether
there is a monetary loss for industries affected by copyright
infringement by predicting what portion of pirated works would have been
formally purchased if they had not been freely available.
Other reports indicate that copyright infringement does not have an
adverse effect on the entertainment industry, and can have a positive
effect. In particular, a 2014 university study concluded that free music content, accessed on YouTube, does not necessarily hurt sales, instead has the potential to increase sales.
According to the IP Commission Report the annual cost of
intellectual property theft to the US economy "continues to exceed $225
billion in counterfeit goods, pirated software, and theft of trade
secrets and could be as high as $600 billion." A 2019 study sponsored by the US Chamber of Commerce Global Innovation Policy Center (GIPC), in partnership with NERA Economic Consulting "estimates that global online piracy costs the U.S. economy at least $29.2 billion in lost revenue each year." An August 2021 report by the Digital Citizens Alliance
states that "online criminals who offer stolen movies, TV shows, games,
and live events through websites and apps are reaping $1.34 billion in
annual advertising revenues." This comes as a result of users visiting
pirate websites who are then subjected to pirated content, malware, and
fraud.
Rights granted
According to World Intellectual Property Organisation,
copyright protects two types of rights. Economic rights allow right
owners to derive financial reward from the use of their works by others.
Moral rights allow authors and creators to take certain actions to
preserve and protect their link with their work. The author or creator
may be the owner of the economic rights or those rights may be
transferred to one or more copyright owners. Many countries do not allow
the transfer of moral rights.
Economic rights
With any kind of property, its owner may decide how it is to be used,
and others can use it lawfully only if they have the owner's
permission, often through a license. The owner's use of the property
must, however, respect the legally recognised rights and interests of
other members of society. So the owner of a copyright-protected work may
decide how to use the work, and may prevent others from using it
without permission. National laws usually grant copyright owners
exclusive rights to allow third parties to use their works, subject to
the legally recognised rights and interests of others.
Most copyright laws state that authors or other right owners have the
right to authorise or prevent certain acts in relation to a work. Right
owners can authorise or prohibit:
- reproduction of the work in various forms, such as printed publications or sound recordings;
- distribution of copies of the work;
- public performance of the work;
- broadcasting or other communication of the work to the public;
- translation of the work into other languages; and
- adaptation of the work, such as turning a novel into a screenplay.
Moral rights
Moral rights are concerned with the non-economic rights of a creator.
They protect the creator's connection with a work as well as the
integrity of the work. Moral rights are only accorded to individual
authors and in many national laws they remain with the authors even
after the authors have transferred their economic rights. In some EU
countries, such as France, moral rights last indefinitely. In the UK,
however, moral rights are finite. That is, the right of attribution and
the right of integrity last only as long as the work is in copyright.
When the copyright term comes to an end, so too do the moral rights in
that work. This is just one reason why the moral rights regime within
the UK is often regarded as weaker or inferior to the protection of
moral rights in continental Europe and elsewhere in the world. The Berne Convention, in Article 6bis, requires its members to grant authors the following rights:
- the right to claim authorship of a work (sometimes called the right of paternity or the right of attribution); and
- the right to object to any distortion or modification of a work, or
other derogatory action in relation to a work, which would be
prejudicial to the author's honour or reputation (sometimes called the
right of integrity).
These and other similar rights granted in national laws are generally
known as the moral rights of authors. The Berne Convention requires
these rights to be independent of authors’ economic rights. Moral rights
are only accorded to individual authors and in many national laws they
remain with the authors even after the authors have transferred their
economic rights. This means that even where, for example, a film
producer or publisher owns the economic rights in a work, in many
jurisdictions the individual author continues to have moral rights. Recently, as a part of the debates being held at the US Copyright Office on the question of inclusion of Moral Rights as a part of the framework of the Copyright Law in United States,
the Copyright Office concluded that many diverse aspects of the current
moral rights patchwork – including copyright law's derivative work
right, state moral rights statutes, and contract law – are generally
working well and should not be changed. Further, the Office concludes
that there is no need for the creation of a blanket moral rights statute
at this time. However, there are aspects of the US moral rights
patchwork that could be improved to the benefit of individual authors
and the copyright system as a whole.
The Copyright Law in the United States, several exclusive rights are granted to the holder of a copyright, as are listed below:
- protection of the work;
- to determine and decide how, and under what conditions, the work may
be marketed, publicly displayed, reproduced, distributed, etc.
- to produce copies or reproductions of the work and to sell those copies; (including, typically, electronic copies)
- to import or export the work;
- to create derivative works; (works that adapt the original work)
- to perform or display the work publicly;
- to sell or cede these rights to others;
- to transmit or display by radio, video or internet.
The basic right when a work is protected by copyright is that the
holder may determine and decide how and under what conditions the
protected work may be used by others. This includes the right to decide
to distribute the work for free. This part of copyright is often
overseen. The phrase "exclusive right" means that only the copyright
holder is free to exercise those rights, and others are prohibited from
using the work without the holder's permission. Copyright is sometimes
called a "negative right", as it serves to prohibit certain people
(e.g., readers, viewers, or listeners, and primarily publishers and
would be publishers) from doing something they would otherwise be able
to do, rather than permitting people (e.g., authors) to do something
they would otherwise be unable to do. In this way it is similar to the unregistered design right in English law and European law.
The rights of the copyright holder also permit him/her to not use or
exploit their copyright, for some or all of the term. There is, however,
a critique which rejects this assertion as being based on a philosophical interpretation of copyright law that is not universally shared. There is also debate on whether copyright should be considered a property right or a moral right.
UK copyright law
gives creators both economic rights and moral rights. While ‘copying’
someone else's work without permission may constitute an infringement of
their economic rights, that is, the reproduction right or the right of
communication to the public, whereas, ‘mutilating’ it might infringe the
creator's moral rights. In the UK, moral rights include the right to be
identified as the author of the work, which is generally identified as
the right of attribution, and the right not to have your work subjected
to ‘derogatory treatment’, that is the right of integrity.
Indian copyright law is at parity with the international standards as contained in TRIPS.
The Indian Copyright Act, 1957, pursuant to the amendments in 1999,
2002 and 2012, fully reflects the Berne Convention and the Universal
Copyrights Convention, to which India is a party. India is also a party
to the Geneva Convention for the Protection of Rights of Producers of Phonograms and is an active member of the World Intellectual Property Organization (WIPO) and United Nations Educational, Scientific and Cultural Organization
(UNESCO). The Indian system provides both the economic and moral rights
under different provisions of its Indian Copyright Act of 1957.
Duration
Expansion of US copyright law (currently based on the date of creation or publication)
Copyright subsists for a variety of lengths in different
jurisdictions. The length of the term can depend on several factors,
including the type of work (e.g. musical composition, novel), whether
the work has been published,
and whether the work was created by an individual or a corporation. In
most of the world, the default length of copyright is the life of the
author plus either 50 or 70 years. In the United States, the term for
most existing works is a fixed number of years after the date of
creation or publication. Under most countries' laws (for example, the
United States and the United Kingdom), copyrights expire at the end of the calendar year in which they would otherwise expire.
The length and requirements for copyright duration are subject to
change by legislation, and since the early 20th century there have been
a number of adjustments made in various countries, which can make
determining the duration of a given copyright somewhat difficult. For
example, the United States used to require copyrights to be renewed
after 28 years to stay in force, and formerly required a copyright
notice upon first publication to gain coverage. In Italy and France,
there were post-wartime extensions that could increase the term by
approximately 6 years in Italy and up to about 14 in France. Many
countries have extended the length of their copyright terms (sometimes
retroactively). International treaties establish minimum terms for
copyrights, but individual countries may enforce longer terms than
those.
In the United States, all books and other works, except for sound
recordings, published before 1926 have expired copyrights and are in
the public domain. The applicable date for sound recordings in the
United States is before 1923.
In addition, works published before 1964 that did not have their
copyrights renewed 28 years after first publication year also are in the
public domain. Hirtle points out that the great majority of these works
(including 93% of the books) were not renewed after 28 years and are in
the public domain.
Books originally published outside the US by non-Americans are exempt
from this renewal requirement, if they are still under copyright in
their home country.
But if the intended exploitation of the work includes publication
(or distribution of derivative work, such as a film based on a book
protected by copyright) outside the US, the terms of copyright around
the world must be considered. If the author has been dead more than 70
years, the work is in the public domain in most, but not all, countries.
In 1998, the length of a copyright in the United States was increased by 20 years under the Copyright Term Extension Act.
This legislation was strongly promoted by corporations which had
valuable copyrights which otherwise would have expired, and has been the
subject of substantial criticism on this point.
Limitations and exceptions
In many jurisdictions, copyright law makes exceptions to these
restrictions when the work is copied for the purpose of commentary or
other related uses. United States copyright law does not cover names,
titles, short phrases or listings (such as ingredients, recipes, labels,
or formulas). However, there are protections available for those areas copyright does not cover, such as trademarks and patents.
Idea–expression dichotomy and the merger doctrine
The idea–expression divide differentiates between ideas and
expression, and states that copyright protects only the original
expression of ideas, and not the ideas themselves. This principle, first
clarified in the 1879 case of Baker v. Selden, has since been codified by the Copyright Act of 1976 at 17 U.S.C. § 102(b).
The first-sale doctrine and exhaustion of rights
Copyright law does not restrict the owner of a copy from reselling
legitimately obtained copies of copyrighted works, provided that those
copies were originally produced by or with the permission of the
copyright holder. It is therefore legal, for example, to resell a
copyrighted book or CD. In the United States this is known as the first-sale doctrine, and was established by the courts to clarify the legality of reselling books in second-hand bookstores.
Some countries may have parallel importation restrictions that allow the copyright holder to control the aftermarket.
This may mean for example that a copy of a book that does not infringe
copyright in the country where it was printed does infringe copyright in
a country into which it is imported for retailing. The first-sale
doctrine is known as exhaustion of rights in other countries and is a principle which also applies, though somewhat differently, to patent and trademark
rights. It is important to note that the first-sale doctrine permits
the transfer of the particular legitimate copy involved. It does not
permit making or distributing additional copies.
In Kirtsaeng v. John Wiley & Sons, Inc., in 2013, the United States Supreme Court
held in a 6–3 decision that the first-sale doctrine applies to goods
manufactured abroad with the copyright owner's permission and then
imported into the US without such permission. The case involved a
plaintiff who imported Asian editions of textbooks that had been
manufactured abroad with the publisher-plaintiff's permission. The
defendant, without permission from the publisher, imported the textbooks
and resold on eBay. The Supreme Court's holding severely limits the ability of copyright holders to prevent such importation.
In addition, copyright, in most cases, does not prohibit one from
acts such as modifying, defacing, or destroying one's own legitimately
obtained copy of a copyrighted work, so long as duplication is not
involved. However, in countries that implement moral rights, a copyright holder can in some cases successfully prevent the mutilation or destruction of a work that is publicly visible.
Fair use and fair dealing
Copyright does not prohibit all copying or replication. 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 without
permission of the copyright holder or payment to same. The statute does
not clearly define fair use, but instead gives four non-exclusive
factors to consider in a fair use analysis. Those factors are:
- the purpose and character of one's use;
- the nature of the copyrighted work;
- what amount and proportion of the whole work was taken;
- the effect of the use upon the potential market for or value of the copyrighted work.
In the United Kingdom and many other Commonwealth countries, a similar notion of fair dealing was established by the courts or through legislation. The concept is sometimes not well defined; however in Canada, private copying for personal use has been expressly permitted by statute since 1999. In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, the Supreme Court of Canada
concluded that limited copying for educational purposes could also be
justified under the fair dealing exemption. In Australia, the fair
dealing exceptions under the Copyright Act 1968
(Cth) are a limited set of circumstances under which copyrighted
material can be legally copied or adapted without the copyright holder's
consent. Fair dealing uses are research and study; review and critique;
news reportage and the giving of professional advice (i.e. legal advice). Under current Australian law,
although it is still a breach of copyright to copy, reproduce or adapt
copyright material for personal or private use without permission from
the copyright owner, owners of a legitimate copy are permitted to
"format shift" that work from one medium to another for personal,
private use, or to "time shift" a broadcast work for later, once and
only once, viewing or listening. Other technical exemptions from
infringement may also apply, such as the temporary reproduction of a
work in machine readable form for a computer.
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 for certain purposes
making 10 copies or more is construed to be commercial, but there is no
general rule permitting such copying. Indeed, making one complete copy
of a work, or in many cases using a portion of it, for commercial
purposes will not be considered fair use. The Digital Millennium Copyright Act
prohibits the manufacture, importation, or distribution of devices
whose intended use, or only significant commercial use, is to bypass an
access or copy control put in place by a copyright owner. An appellate court has held that fair use is not a defense to engaging in such distribution.
EU copyright laws recognise the right of EU member states to implement some national exceptions to copyright. Examples of those exceptions are:
- photographic reproductions on paper or any similar medium of
works (excluding sheet music) provided that the rightholders receives
fair compensation;
- reproduction made by libraries, educational establishments, museums or archives, which are non-commercial;
- archival reproductions of broadcasts;
- uses for the benefit of people with a disability;
- for demonstration or repair of equipment;
- for non-commercial research or private study;
- when used in parody.
Accessible copies
It is legal in several countries including the United Kingdom and the
United States to produce alternative versions (for example, in large
print or braille) of a copyrighted work to provide improved access to a
work for blind and visually impaired people without permission from the
copyright holder.
Religious Service Exemption
In the US there is a Religious Service Exemption (1976 law, section
110[3]), namely "performance of a non-dramatic 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" shall not constitute infringement of copyright.
Transfer, assignment and licensing
A copyright, or aspects of it (e.g. reproduction alone, all but moral
rights), may be assigned or transferred from one party to another.
For example, a musician who records an album will often sign an
agreement with a record company in which the musician agrees to transfer
all copyright in the recordings in exchange for royalties and other
considerations. The creator (and original copyright holder) benefits, or
expects to, from production and marketing capabilities far beyond those
of the author. In the digital age of music, music may be copied and
distributed at minimal cost through the Internet; however, the record industry
attempts to provide promotion and marketing for the artist and their
work so it can reach a much larger audience. A copyright holder need not
transfer all rights completely, though many publishers will insist.
Some of the rights may be transferred, or else the copyright holder may
grant another party a non-exclusive license to copy or distribute the
work in a particular region or for a specified period of time.
A transfer or licence may have to meet particular formal requirements in order to be effective, for example under the Australian Copyright Act 1968
the copyright itself must be expressly transferred in writing. Under
the US Copyright Act, a transfer of ownership in copyright must be
memorialized in a writing signed by the transferor. For that purpose,
ownership in copyright includes exclusive licenses of rights. Thus
exclusive licenses, to be effective, must be granted in a written
instrument signed by the grantor. No special form of transfer or grant
is required. A simple document that identifies the work involved and the
rights being granted is sufficient. Non-exclusive grants (often called
non-exclusive licenses) need not be in writing under US law.
They can be oral or even implied by the behavior of the parties.
Transfers of copyright ownership, including exclusive licenses, may and
should be recorded in the U.S. Copyright Office. (Information on
recording transfers is available on the Office's web site.) While
recording is not required to make the grant effective, it offers
important benefits, much like those obtained by recording a deed in a real estate transaction.
Copyright may also be licensed. Some jurisdictions may provide that certain classes of copyrighted works be made available under a prescribed statutory license (e.g. musical works in the United States used for radio broadcast or performance). 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 holder, but instead merely
files the proper notice and pays a set fee established by statute (or
by an agency decision under statutory guidance) for every copy made.
Failure to follow the proper procedures would place the copier at risk
of an infringement suit. Because of the difficulty of following every
individual work, copyright collectives or collecting societies and performing rights organizations (such as ASCAP, BMI, and SESAC)
have been formed to collect royalties for hundreds (thousands and more)
works at once. Though this market solution bypasses the statutory
license, the availability of the statutory fee still helps dictate the
price per work collective rights organizations charge, driving it down
to what avoidance of procedural hassle would justify.
Free licenses
Copyright licenses known as open or free licenses seek to grant several rights to licensees, either for a fee or not. Free
in this context is not as much of a reference to price as it is to
freedom. What constitutes free licensing has been characterised in a
number of similar definitions, including by order of longevity the Free Software Definition, the Debian Free Software Guidelines, the Open Source Definition and the Definition of Free Cultural Works. Further refinements to these definitions have resulted in categories such as copyleft and permissive. Common examples of free licences are the GNU General Public License, BSD licenses and some Creative Commons licenses.
Founded in 2001 by James Boyle, Lawrence Lessig, and Hal Abelson, the Creative Commons (CC) is a non-profit organization
which aims to facilitate the legal sharing of creative works. To this
end, the organization provides a number of generic copyright license
options to the public, gratis.
These licenses allow copyright holders to define conditions under which
others may use a work and to specify what types of use are acceptable.
Terms of use have traditionally been negotiated on an individual
basis between copyright holder and potential licensee. Therefore, a
general CC license outlining which rights the copyright holder is
willing to waive enables the general public to use such works more
freely. Six general types of CC licenses are available (although some of
them are not properly free per the above definitions and per Creative
Commons' own advice). These are based upon copyright-holder stipulations
such as whether they are willing to allow modifications to the work,
whether they permit the creation of derivative works and whether they
are willing to permit commercial use of the work. As of 2009 approximately 130 million individuals had received such licenses.
Criticism
Some sources are critical of particular aspects of the copyright system. This is known as a debate over copynorms.
Particularly to the background of uploading content to internet
platforms and the digital exchange of original work, there is discussion
about the copyright aspects of downloading and streaming, the copyright aspects of hyperlinking and framing.
Concerns are often couched in the language of digital rights, digital freedom, database rights, open data or censorship. Discussions include Free Culture, a 2004 book by Lawrence Lessig. Lessig coined the term permission culture to describe a worst-case system. Good Copy Bad Copy (documentary) and RiP!: A Remix Manifesto, discuss copyright. Some suggest an alternative compensation system. In Europe consumers are acting up against the raising costs of music, film and books, and as a result Pirate Parties have been created. Some groups reject copyright altogether, taking an anti-copyright stance. The perceived inability to enforce copyright online leads some to advocate ignoring legal statutes when on the web.
Public domain
Copyright, like other intellectual property rights,
is subject to a statutorily determined term. Once the term of a
copyright has expired, the formerly copyrighted work enters the public
domain and may be used or exploited by anyone without obtaining
permission, and normally without payment. However, in paying public domain
regimes the user may still have to pay royalties to the state or to an
authors' association. Courts in common law countries, such as the United
States and the United Kingdom, have rejected the doctrine of a common law copyright. Public domain works should not be confused with works that are publicly available. Works posted in the internet,
for example, are publicly available, but are not generally in the
public domain. Copying such works may therefore violate the author's
copyright.
