Copyright (West's Encyclopedia of American Law)
A bundle of intangible rights granted by statute to the author or originator of certain literary or artistic productions, whereby, for a limited period, the exclusive privilege is given to that person (or to any party to whom he or she transfers ownership) to make copies of the same for publication and sale.
A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called infringement.
Copyright is distinct from other forms of creator protection such as PATENTS, which give inventors exclusive rights over use of their inventions, and TRADEMARKS, which are legally protected words or symbols or certain other distinguishing features that represent products or services. Similarly, whereas a patent protects the application of an idea, and a trademark protects a device that indicates the provider of particular services or goods, copyright protects the expression of an idea. Whereas the operative notion in patents is novelty, so that a patent represents some invention that is new and has never been made before, the basic concept behind copyright is originality, so that a copyright represents something that has originated from a particular author and not from another. Copyrights, patents, and trademarks are all examples of what is known in the law as INTELLECTUAL PROPERTY.
As the media on which artistic and intellectual works are recorded have changed with time, copyright protection has been extended from the printing of text to many other means of recording original expressions. Besides books, stories, periodicals, poems, and other printed literary works, copyright may protect computer programs; musical compositions; song lyrics; dramas; dramatico-musical compositions; pictorial, graphic, and sculptural works; architectural works; written directions for pantomimes and choreographic works; motion pictures and other audiovisual works; and sound recordings.
History of Copyright Law
U.S. copyright law grew out of English COMMON LAW and statutory law. When the printing press was developed in the fifteenth century, rights for the reproduction of written works extended to printers rather than to authors. In England, a printers' guild, the Stationers' Company, claimed for itself the exclusive rightn effect, a monopolyn written works. It was not until 1710 that Parliament passed a statute relating to copyright. That law, called the Statute of Anne, established authors' rights to control the reproduction of their work after it was published. It also created a term of protection of 28 years from the date of publication. After that time, an author's work entered the public domain, meaning that anyone could print or distribute it without obtaining the author's permission or paying a royalty, or fee, to the author. Other European countries developed similar laws in the late eighteenth and early nineteenth centuries.
Under the British system, the author retained a common-law right to ownership of his or her work until publication. After publication, copyright was established as a statutory right, protected by the Statute of Anne. U.S. copyright law retained this distinction between prepublication common-law rights and post-publication statutory rights, until 1976.
By the late eighteenth century, the protection of intellectual property as a means of advancing the public interest was considered important enough to receive mention in the U.S. Constitution. The Patent and Copyright Clauserticle I, Section 8, Clause 8f the U.S. Constitution empowers Congress "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." Congress passed its first copyright statute in 1790nd has substantially revised copyright law four times, in 1831, 1870, 1909, and 1976.
Revisions in the copyright law have been driven largely by commercially significant changes in technology. In 1802, for example, graphic prints came under copyright protection, establishing the notion that the Constitution's
language regarding copyright not be interpreted to apply literally to "Writings" alone. In 1831, musical compositions were incorporated into copyright protection, and in 1870, paintings, statues, and other works of fine art were placed under copyright protection.
The distinction between common-law protection for unpublished works and statutory protection of published works received increasing criticism in the twentieth century, particularly as the notion of publication changed greatly with technological innovations in communication. Congress removed this distinction in the landmark Copyright Act of 1976 (17 U.S.C.A. § 102(a)). According to this statute, an author receives copyright protection as soon as a work is recorded in a concrete wayhen, for example, it is written on a piece of paper, recorded on an audiotape, or stored on a computer disk. Any unauthorized copying of the work is subject to an infringement suit and criminal charges. The 1976 act also allows copyright protection of works that derive from the original, such as motion pictures, CD-ROM multimedia editions, and other adaptations. These subsequent creations are known as derivative works.
Many features of the 1976 act make U.S. copyright law conform more to international copyright standards, particularly with regard to the duration of copyright protection and to the formalities of copyright deposit, registration, and notice. These changes have been greatly influenced by the most important international copyright treaty, the Berne Convention for the Protection of Literary and Artistic Works (828 U.N.T.S. 221, S. Treaty Doc. No. 99-27). In 1988, the United States passed the Berne Convention Implementation Act (102 Stat. 2853), which made the nation an official member of the treaty as of 1989. Section 2(a) of this act holds that provisions of the treaty are not legally binding in the United States without domestic legislation that specifically implements them.
U.S. copyright law has continued to evolve toward greater conformity with international copyright standards. In the 1990s, for example, the Berne Convention added 20 years to the minimum standard for copyright duration, changing it to the length of the author's life plus 70 years. U.S. copyright law followed suit in 1998, with the passage of the Sonny Bono Copyright Term Extension Act.
The 1976 Copyright Act provides that copyright protection "subsists in original works of authorship fixed in any tangible medium of expression, now known or later developed" (17 U.S.C.A. § 102(a)). Thus, virtually any form of fixed recording is protected, no matter how new the technology.
Originality is the most important quality needed by a work in order for it to receive copyright protection. Originality is not dependent on the work's meeting any standard of aesthetic or artistic quality. Thus, a work need not be fine art to be copyrightable.
Works That Are Not Copyrightable
Copyright protects the expression of an idea or vision, not the idea itself. In legal terminology, this concept is called the idea-expression dichotomy, and it has been an important feature of legal reasoning related to copyright. Ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries are not within the scope of copyright protection. Other works that are not copyrightable are words and short phrases, including slogans; blank forms for recording information (such as bank checks); and works containing no original authorship (such as standard calendars or simple phone listings).
Some works are not copyrightable because they are not fixed in a tangible medium. These include unrecorded dance choreography, and unrecorded speeches, lectures, and other vocal performances. Although typefaces are tangible, they traditionally have been regarded as lying outside of copyright protection. A dramatic character is not copyrightable.
Holders of a Copyright
A copyright is initially owned by the author or authors of the work, except in the case of a "work for hire." A work for hire can arise in two situations: (1) where an employee creates a work within the scope of his or her employment, in which case the employer owns the copyright to the work upon its creation; (2) where two parties enter a written agreement designating the creation as a work for hire and the work falls within one of nine specific categories of work designated by copyright law. If the work does not fit one of the specified categories, it will not be a work for hire even if the parties have called it one. In such a case, the author or authors retain the copyright, and transfer must be accomplished through a written assignment of copyright. Where there is a valid work for hire, the employer who owns the copyright has the same rights as any copyright holder, including the right to initiate an action for copyright infringement.
The ownership of a copyright, or the ownership of any of the five exclusive rights afforded by a copyright (discussed later in this article), can be transferred to another and is regarded as PERSONAL PROPERTY upon the death of the copyright holder. Copyright ownership and ownership of the material object in which the copyrighted work is embodied are two entirely separate legal entities. Furthermore, transfer of an object and transfer of the copyright to that object are separate, independent transactions, neither of which, by itself, has any effect on the other. Therefore, transfer of a material object, such as an original manuscript, photograph negative, or master tape recording, does not transfer the copyright to that work. Likewise, transfer of the copyright to a work does not require transfer of the original copy of the work.
Copyright affords an author a number of exclusive rights: (1) the exclusive right to reproduce, or copy, the work; (2) the exclusive right to prepare new works that derive from the copyrighted work; (3) the exclusive right to distribute the work to the public by sale or other arrangement; (4) the exclusive right to perform the work publicly; and (5) the exclusive right to display the work publicly. The first two rights, involving reproduction and derivation, are infringed whether violated in public or in private, or whether violated for profit or not. The last three rights are infringed only when violated publicly, that is, before a "substantial number of persons" outside of family and friends (17 U.S.C.A. § 101).
All of the exclusive rights afforded by copyright may have significant economic value. For example, derivative works, which may include translations, dramatizations, films, recordings, and abridgments, can offer substantial rewards to the author. An author may sell, license, or transfer one or all of the exclusive rights.
Duration of Ownership
Under the original provisions of the Copyright Act of 1976, copyright protection of an authored work extended through the life of the author and to fifty years after the author's death. However, in a major piece of legislation, Congress extended copyright terms in 1998 in the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (17 U.S.C.A. §§ 101 et seq.). Title I defines the terms of the copyright extension, while Title II provides a "music licensing exemption for food service or drinking establishments." This portion of the law is also known as the Fairness in Music Licensing Act of 1998.
The duration of copyright law under the 1998 act was extended for all copyrighted materials. Works created on January 1, 1978, or after are protected from the time the work was "fixed in a tangible medium of expression." The term is for life of the creator plus 70 years. If the creator is a corporation, then the term is 95 years from publication or 120 years from the date of creation, whichever is shorter.
Works published between 1923 and 1963 are protected, if they were published with notice, for 28 years and can be renewed for 67 years. If not renewed, they will fall into the public domain. Materials that were published during this period without notice entered the public domain upon publication.
Items published between 1964 and 1977 are protected if they were published with notice. They are protected for 28 years, and the copyright has been automatically extended for 67 years. Works created before January 1, 1978, but not published, are protected for the life of the creator plus 70 years or until December 31, 2002, whichever is later. Materials created before January 1, 1978, but published between then and December 31, 2002, are protected for the life of the creator plus 70 years or until December 31, 2002, whichever is later.
Libraries, archives, museums, and scholars expressed concerns about the 20-year extension. Items created in 1923 would have passed into the public domain on January 1, 1999, if the law had not been changed. At the beginning of 2000, works created in 1924 would have fallen under the public domain. The act's opponents argued that original scholarly research would be hampered by the extension.
In answer to those concerns, a special clause was included in the Copyright Term Extension Act for libraries, archives, and nonprofit educational institutions. Such institutions are permitted to "reproduce, distribute, display, or perform in facsimile or digital form" a copy of any copyrighted, published work during the last 20 years of its term "for purposes of preservation, scholarship, or research." However, the work must not be used in such a manner if it "can be obtained at a reasonable price."
The changes in the duration of copyrights were made partly to keep pace with the evolution of European copyright laws. In 1995, Europe extended its copyright protection to life of the creator plus 70 years, but in the United States it remained the life of the creator plus 50 years.
Copyright infringement involves any violation of the exclusive rights of the copyright owner. It may be unintentional or intentional. When unintentional, it is called innocent infringement. An example of innocent infringement occurred when former Beatle George Harrison created his song "My Sweet Lord." Harrison was found to have unconsciously copied the tune of another song, "He's So Fine," by the Chiffons, and thus was liable for infringement (Bright Tunes Music Corp. v. Harrisongs Music, 420 F. Supp. 177 [S.D.N.Y. 1976]). Vicarious or related infringement refers to those who profit indirectly from the infringement of copyright, as in the case of a theater owner who profits from booking a band that illegally performs copyrighted works.
Since evidence of direct copying or PLAGIARISM of an authored work is difficult to obtain, infringement of copyright is usually established through CIRCUMSTANTIAL EVIDENCE. Such evidence typically must show a substantial similarity between the original and the copy, as well as prove that the copier had access to the original. This means that where two works are similar or identical, there is nevertheless no infringement if each work was produced through the original and independent work of its creator. An infringer is not relieved of liability by crediting the source or the creator of the infringed work. Although infringement does not require that
even a large portion of the work be similar, it does require that a substantial part be similar. It is irrelevant if the copied work is an improvement of the original work.
The Copyright Act of 1976 recognizes a copyright not only in a publisher's collective work, but also a separate copyright for each author's contribution to the work. With the growth in the use of electronic databases and disk to store data, some freelance authors began to object to their articles being sold to companies that produced these databases and disks. The Supreme Court, in New York Times v. Tasini, 533 U.S. 483, 121 S. Ct. 2381, 150 L. Ed. 2d 500 (2001), held that the Act protects the copyrights of the writers, rejecting an argument by the publishers that the conversion of the original works to an electronic format constituted a "revision" of the collective work, which would have been permissible under the Copyright Act.
Remedies for Infringement
Because the owner loses the value of a copyright when infringement occurs, relief is often sought through filing a lawsuit in federal court. If infringement is established, the court can grant preliminary and permanent injunctions, or court orders that restrain the offending party from continuing to infringe the copyright. A court may also award monetary damages as a remedy for copyright infringement. The copyright owner can recover for actual financial losses and any additional profits that the infringer earned from the infringement.
The copyright owner may instead choose to receive statutory damages, which range from a minimum of $250 to a maximum of $10,000. The court may adjust these limits based on the innocence or willfulness of the infringer. Innocent infringers may prove their GOOD FAITH and may have damages reduced to as little as $100, whereas willful infringers may be punished by the court with damages as high as $50,000. Courts may also impound and even destroy illicit reproductions of copyrighted works.
Willful copyright infringement can be a federal misdemeanor, punishable by as much as $10,000 or one year's imprisonment. Criminal prosecutions on this basis require that infringement be for the "purposes of commercial advantage or private financial gain"(17 U.S.C.A. § 506(a)). Criminal prosecutions for copyright infringement are generally rare. Nevertheless, PIRACY of music and motion picture recordingsn which criminals mass-produce such recordings without permission and without paying royaltiesas become increasingly common. This fact led to the passage of the Piracy and Counterfeiting Amendments Act of 1982 (18 U.S.C.A. § 2318), which allows punishment of up to $250,000 in fines or five years in prison for pirating 1,000 phonorecords or 65 films within 180 days. The fraudulent use or removal of copyright notices is also a punishable offense.
Fair use is a judicial doctrine that refers to a use of copyrighted material that does not infringe or violate the exclusive rights of the copyright holder. Fair use is an important and well established limitation on the exclusive right of copyright owners. Examples of fair use include the making of braille copies or audio recordings of books for use by blind people, and the making of video recordings of broadcast television programs or films by individuals for certain private, noncommercial use.
Examples of fair use typically involve, according to the Copyright Act of 1976, the reproduction of authored works for the purpose of "criticism, comment, news reporting, teaching scholarship, or research" (17 U.S.C.A. § 107). The same act also establishes a four-part test to determine fair use according to the following factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work (17 U.S.C.A. § 107).
It is usually considered fair use of an authored work to take small quotations or excerpts and to include them in another work, as when quotations are taken from a book and inserted into a book review. However, courts have found that such quotation is not fair use when material is taken from unpublished sources, as happened in the 1985 case Harper & Row v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218, 85 L. Ed. 2d 588.
The Harper case involved publication by The Nation magazine of quotations from Gerald R. Ford's unpublished memoir, A Time to Heal. Harper & Row, publisher of the memoir, sued The Nation, claiming that the magazine's actions had caused it to lose a lucrative contract with Time Magazine to publish excerpts from the memoir. The Court ruled in favor of Harper, citing the economic value of first publication to the copyright holder as an important factor in its decision. It found that The Nation had infringed Ford's copyright by becoming the first publisher of his original expression, thereby inflicting economic losses on Ford. It rejected The Nation's argument that it was simply reporting news. Lower courts have subsequently applied the Court's reasoning to other cases involving quotations from unpublished works. In Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987), a federal appeals court blocked publication of a book that used extensive quotations from unpublished letters of the author J. D. Salinger. The court ruled that the author retained copyright ownership of the "expressive content" of the letters, even when the letters themselves were deposited in university library collections.
PARODY often constitutes fair use of copyrighted material. In cases involving parodies of copyrighted works, courts typically assess the purpose and intent involved in taking material from the original expression, and whether or not the author of the parody has borrowed a reasonable amount of material in producing the parody. For example, in the 1994 case of Campbell v. Acuff-Rose Music, 501 U.S. 569, 114 S. Ct. 1164, 127 L. Ed. 2d 500hich involved a parody by the rap group 2 Live Crew of the Roy Orbison song "Pretty Woman"he U.S. Supreme Court ruled that a parody could be fair use under copyright law even if it is created for commercial purposes.
Copyright Registration, Deposit, and Notice
Registration of copyright involves recording the existence of an authored work and the identity of its author with the U.S. Copyright Office, which is a part of the LIBRARY OF CONGRESS. Deposit involves placing the work in its recorded, physical form with the same office. Notice, or notification, involves placing on an authored work the © or the word Copyright or the abbreviation Copr., along with the year of first publication and the name of the owner of the copyright.
Many of the major copyright acts in U.S. history have required that works be registered and deposited with a U.S. district court or with the U.S. Copyright Office, in order to be legally enforceable. Over time, however, deposit, registration, and notice of copyright have increasingly become formalities. Under the Copyright Act of 1976, authors automatically receive federal copyright protection when they fix their work in a tangible medium. Even if a copyright is not registered and an authored work is not deposited, the author maintains exclusive rights to the work.
Nevertheless, registration and deposit may have significant legal consequences. Most importantly, owners of copyright cannot sue for copyright infringement until they have registered the copyright (17 U.S.C.A. § § 411, 412). Deposit is not a requirement for copyright protection, but federal law requires that two copies of a published work be deposited within three months of publication. Failure to deposit a copy after it has been demanded by the U.S. Copyright Office is an offense punishable by a fine. Registration of copyright requires the deposit of at least one copy of a work and two copies of a published work. The U.S. Copyright Office has the power to vary these requirements.
Copyright notice serves a number of functions. A lack of copyright notice has traditionally informed users that a particular work is in the public domain, whereas the presence of a notice has warned users that a work is copyrighted and identifies the date and year of the work. Despite these traditions, copyright notice is optional for works distributed after October 31, 1988. Under prior law, an omission of copyright notice resulted in a loss of copyright protection.
Digital Millennium Copyright Act
Copyright laws have had to evolve in order to protect the interests of owners of copyrights from infringement through transfer of digital copies of protected works. INTERNET users may employ a myriad of methods to transmit digital files, and much of the information contained in these files consists of copyrighted works. Given the sheer number of Internet usersstimated by some at more than 500 million in 2002nd trillions of pages on the World Wide Web, protection of electronic publications and media is a global concern.
In 1998, then-President WILLIAM JEFFERSON CLINTON signed the Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860 (17 U.S.C.A. §§ 101 et seq.) into law following a 99-0 vote in the U.S. Senate. This legislation was the focus of intense LOBBYING efforts on the part of a wide range of interest groups. These groups included TELECOMMUNICATIONS companies and online service providers; consumer-electronics manufacturers, library, museum, and university groups; and the publishing, recording, film, and software industries. The primary goal of this legislation was to adapt U.S. copyright laws for the digital age.
Passage of the DMCA was also required for the United States to keep pace with changes in international copyright treaties. In December 1996, the World Intellectual Property Organization (WIPO), an agency of the UNITED NATIONS, negotiated the Copyright Treaty and the Performances and Phonograms Treaty at a meeting in Geneva, Switzerland. WIPO is responsible for the advancement and safeguarding of intellectual property throughout the world, and it has 170 member countries.
The treaties, ratified in 2002, provide increased protection for copyrighted materials in the digital world. By signing, each country agrees to put into place laws, based on their own legal system, in order to enforce the treaties. The DMCA serves that purpose for the United States.
The DMCA consists of five main sections: WIPO Treaties Implementation, Online Copyright Infringement Liability Limitation, Computer Maintenance or Repair Copyright Exemption, Miscellaneous Provisions, and Protection of Certain Original Designs. Title I, WIPO Treaties Implementation, contains an "anti-circumvention" provision, making it illegal to "manufacture, import, offer to the public, provide, or otherwise traffic any technology, product, service, device, component, or part thereof," for the primary purpose of "circumventing a technological measure that effectively controls access to" a copyrighted work. Thus, technologies that are designed to protect digital material are safeguarded.
Moreover, this provision makes the act of circumventing a "technological measure that effectively controls access to a work protected" by copyright illegal. Every three years, the librarian of Congress, the register of copyrights, and the assistant secretary for communications and information of the COMMERCE DEPARTMENT must determine whether people with legitimate noninfringing uses of copyrighted materials are being unfavorably affected by the law. The law does state that fair use is not affected, but this nevertheless has been a controversial provision. Libraries, museums, and scholars were concerned about digital materials only being available on a pay-per-use basis. An exemption was included for nonprofit libraries, archives, and educational institutions allowing them to circumvent technical protection measures for the purpose of determining whether or not to purchase the copyrighted work.
Title I of the DMCA contains another addition to U.S. copyright law required by the WIPO treaties. This section prohibits the deletion or alteration of information associated with copyrighted material. Organizations will benefit from this provision because it will help protect information and images on their web sites. Furthermore, it prohibits the distribution of false copyright-management information. The DMCA provides for civil and criminal enforcement. However, archives, schools, nonprofit libraries, and public broadcasting stations are exempt from criminal prosecution.
The DCMA also limits the liability for copyright infringement by providing safe harbors for online service providers. The definition of an online service provider is generous. Other organizations may qualify for protection, which could be useful if they provide Internet access, have a company bulletin board or inhouse E-MAIL system, or chat rooms. Prior to the passage of the DMCA, online service providers could have been liable if infringing materials were posted on their sites, even if they were unaware of the problem. The DMCA explains the responsibilities of copyright owners and service providers. Under specific conditions, online service providers are exempt from having to pay monetary damages as long as they are not benefiting financially from infringing activity and as long as they remove the material promptly from the Internet.
Limitations have also been set on exclusive rights for computer programs. A provision allows users to copy programs that are needed in order to maintain and repair a machine. Any such copies must be destroyed as soon as the machine is repaired, however.
One significant exemption for libraries and archives was included in Title IV of the DMCA. Up to three copies may be made of a copyrighted work without the permission of the copyright owner for research use in other libraries or archives through interlibrary loan. The word "facsimile" has been struck from the former copyright law, thus allowing for digital formats. Libraries and archives can now loan digital copies of works to other libraries and archives by electronic means. Copies for preservation and security purposes are also permitted when the existing format in which the material is stored becomes outdated, or if the work is lost, stolen, damaged, or deteriorating.
Title IV also established guidelines for licensing and ROYALTIES in regard to copyrighted music transmitted over the Internet and in other digital forms. Transmissions are not subject to licensing if transmitted with encoded copyright information and with permission from the copyright owner of the sound recording.
No Electronic Theft Act
The concerns surrounding the protection of the copyrights of electronic data extend to computer software. In 1997, Congress approved the No Electronic Theft (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678, which substantially enhanced existing federal copyright law. Aimed primarily at the rampant theft of computer software, it allows the prosecution of anyone who violates the copyright of materials worth more than $1,000 in a six-month period by copying, distributing, or receiving software.
Congress passed the law in November 1997 after the software and entertainment industries strongly lobbied for it, claiming losses amounting to $2 billion in 1996 in the United States alone. In particular, the law closed a narrow loophole in existing federal law, which made criminal prosecution for copyright violation only possible if the violation resulted in financial gain. Under the NET Act, individuals face fines and jail sentences even if they do not profit financially from the violation. The law was enacted over protests by scientists who feared that it would hinder their research.
Lobbyists pointed to what became known as the "LaMaccia loophole." This term refers to an unforeseen weakness in federal law that was exposed by the failed federal prosecution of computer hacker David LaMacchia in 1994 (United States v. LaMacchia, 871 F. Supp. 535 [D. Mass. 1994]). LaMacchia, then a 21-year-old student at the Massachusetts Institute of Technology, had used an electronic bulletin board to freely distribute countless commercial software programs. Although he was indicted for wire FRAUD under 18 U.S.C.A. § 1343 for allegedly causing software companies losses of more than $1 million, the case was dismissed. U.S. District Court Judge Richard Stearns ruled that criminal sanctions did not apply because LaMacchia had not profited from his actions.
According to the software industry, the decision paved the way for piracy of material through web pages and other commonly used Internet sites. Software manufacturers were not only concerned about deliberate piracy by computer hackers; they also wanted to stop the casual lending and copying of computer software between consumers and within offices as well. Joining them in this effort were the music and film industries, which have increasingly become partners of software companies in the production of multimedia CD-ROMs. Additionally, the music industry viewed with alarm the widespread distribution of commercial recordings by fans, which became popular over the Internet in 1997 with the development of new software technology for digitally copying songs.
The NET Act was designed to close the LaMacchia loophole. Swiftly passed by the House and subsequently approved by the Senate, the act accomplished this by amending two key parts of federal copyright law: Titles 17 and 18 of the United States Code. These laws previously defined copyright violation strictly in terms of financial gain. The NET Act broadened them to include the reproduction or distribution of one or more copies of copyrighted works and considers financial gain simply to be the possession of copyrighted work. It defines a misdemeanor violation as occurring when the value of the copied material exceeds $1,000 over a 180-day period; a felony occurs if the value exceeds $2,500. Penalties range from a one-year jail sentence and up to $100,000 in fines for first-time offenders, to five years' imprisonment, and up to $250,000 in fines for repeat offenders.
Electronic Frontier Foundation. 1995. To Have and to Hold: Can Copyrights Extend to Cyberspace Without Increased Costs and Threats to Privacy? (June 8).
Goldstein, Paul. 2003. Copyright's Highway: From Gutenberg to the Celestial Jukebox. Rev. ed. Stanford, Calif.: Stanford Univ. Press.
Vaidhyanathan, Siva. 2001. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York Univ. Press.
- Copyright, International; Intellectual Property.
Copyright (Encyclopedia of Small Business)
Copyright is a kind of protection offered by the laws of the United States to the authors of "original works of authorship," including literary, musical, dramatic, artistic, and other intellectual works. Copyright law thus protects a wide variety of creative compositions, including books, magazine articles, songs (both lyrics and music), plays (and any accompanying music), choreography, photographs, drawings, sculptures, and films and other audiovisual works. This protection is extended to both published and unpublished works. Copyright experts note that the definition of "intellectual works" should be interpreted quite broadly in this regard. For example, computer software programs can be registered as "literary works," and maps and architectural blueprints can be registered as "pictorial, graphic, and sculptural works."
Once the author or creator of an intellectual work secures a copyright for that work, he or she has exclusive rights to do whatever he or she wishes with it. The owner can reproduce and/or distribute copies of it for sale; transfer ownership via sale, lease, rental, or lending; prepare derivative works based on the copyrighted work; or provide public displays or performances of the work.
Several categories of material are generally not eligible for copyright protection. These include ideas, methods, concepts, principles, titles, names, slogans, familiar symbols or designs, listings of ingredients or contents, coloring, and variations of typographic ornamentation. Other material not eligible for copyright include works consisting entirely of information that is common property and contains no original authorship (standard calendars, height and weight charts, tables taken from public documents) and works that, in the words of the Copyright Office, "have not been fixed in a tangible form of expression." Examples of the latter include improvisational performances or choreographic works that have not been written or recorded.
CORNERSTONES OF COPYRIGHT LAW
The basic philosophy underlying American copyright law can be found in Article 1, Section 8 of the Constitution, which stipulates that "Congress shall have Power o 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 sentiments embodied in this proclamation were given added legal heft in 1909 and 1976, years that saw major copyright legislation become law.
A major change in American copyright law came in the late 1970s, as Congress passed new laws addressing the length and character of copyright protection. As a result of that legislation, which took effect on January 1, 1978, all works created on or after that date automatically receives legal protection from the moment of its creation (before then a work did not receive copyright protection until it had been published or registered with the Copyright Office). The new legislation expanded the duration of copyright protection as well. It provided authors with legal protection that ordinarily lasts for the entire life of the author, plus an additional 50 years after the author's death. In the case of "joint works" (works created by two or more authors under circumstances that were not "for hire"), the copyright protection lasts for 50 years after the last surviving author's death. For works made for hire, anonymous works, and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the copyright on the work in question last for 75 years from publication or 100 years from creation, whichever is shorter. Creative works that came into being prior to January 1, 1978, but had not yet been published or registered by that date are given similar protection under the terms of the statute.
Copyright protection is somewhat different for works originally created and published or registered prior to January 1, 1978. For works created during this period, authors could secure copyright protection for 28 years, with an option to renew that protection for another 28 years as the initial term expired. The new copyright law extended the length of that second term from 28 years to 47 years, thus making pre-1978 works eligible for a total of 75 years of copyright protection. In addition, a 1992 amendment to the Copyright Act of 1976 automatically extended the term of copyrights obtained from January 1, 1964, through December 31, 1977, to the full renewal limit of 47 years.
American copyright law underwent another change in 1989, when copyright notices on copyrighted material become optional. Prior to March 1, 1989, copyright notices had been mandatory on all published works; any works not carrying a copyright notice risked loss of copyright protection. After March 1, 1989, however, that notice was no longer requiredhough it was still highly recommendedecause works created after that date were automatically copyrighted the moment they were presented in a fixed form (generally print, audio, or video).
The most recent significant legislation impacting copyright protection was signed into law by President Clinton in October 1998. This legislation, called the Digital Millennium Copyright Act, included a number of significant provisions, including the following:
- Made it illegal to circumvent anti-piracy measures in commercial software.
- Outlawed the manufacture, sale, or distribution of devices used to illegally copy software.
- Placed limits on the copyright infringement liability of Internet service providers who transmit information over the Internet (although the Act also called for ISPs to remove materials that infringe on legitimate copyright claims)
- Limits liabilities of nonprofit institutions of higher learning for acts of copyright infringement committed by student or faculty.
- Requires payment of licensing fees to record companies for "webcasting."
Despite the changes that have taken place in American copyright rules over the past 200 years, in many respects copyright protection has always beennd continues to beairly simple. "Basically, copyright law says that if you create something and express it in a fixed and tangible form, you own it," wrote William Rodarmor in Newmedia. "Ownership means you can pretty much control what other people do with it. The two major exceptions are material in the public domain and so-called "fair use."
PUBLIC DOMAIN Once the term of a copyright (or a patent) expires, it is said to become a part of the "public domain." In essence, this means that it becomes community property that anyone can use. Photographs, magazine articles, and books are among the most common "public domain" materials used today.
Another potentially valuable source of public domain material is works produced by the United States government. While state and local governments often copyright their documents, reports, and other publications, the federal government does not do so.
"FAIR USE" Perhaps no other aspect of copyright law concerns writers, publishers, multimedia developers, graphic artists, and others as much as the issue of "fair use." As Rodarmor stated in Newmedia, "fair use is a tricky doctrine and a trap for the unwary." Fair use concerns the use of copyrighted material without securing the explicit permission of the copyright holder. Even copyright experts admit that the rules regarding fair use are kind of hazy, but they basically boil down to the following questions:
- Is the excerpted material intended for news reporting, critical commentary, scholarship, research, or teaching purposes? (Scholars, teachers, critics, and commentators have greater leeway in using copyrighted material, provided that they are using it for scholarly/educational purposes rather than for commercial use, and provided that they attribute the material.)
- Is the excerpted material appearing in a primarily commercial work?
- What is the nature of the copyrighted work?
- What percentage of the copyrighted work is being excerpted? (Publishers generally require writers to err on the side of caution; no full-proof formula to determine what is acceptable currently exists.)
What effect could use of the copyrighted material have on the potential market for or value of the copyrighted work?
Adherence to fair use guidelines and other aspects of copyright law is particularly important for entrepreneurs/small business owners engaged in activities that lead them to deal with copyrighted works. Both freelancers and those who employ freelancers need to understand what is and is not acceptable in this realm. For instance, lawsuits that charge small business owners with copyright infringement can be quite costly. Indeed, even if the owner is found not guilty, the legal costs of mounting a defense are often considerable. Of course, securing adequate permissions rights through licensing, etc., puts more of a burden on small businesses and entrepreneurs as well, since their financial resources are not as great as those of bigger companies. Rodarmor, for example, noted that small multimedia developers hoping to enter into commercial markets face sometimes daunting realities in this regard: "Companies like Time Warner and Sony can afford platoons of savvy lawyers to acquire content for their own multimedia projects and to protect the content they own, but the legal costs of acquiring rights to video, audio, photographs, and text may swamp the small developers."
WORK FOR HIRE AND COPYRIGHT
In situations where a work software program, an essay, a mural, an advertising design, or another intellectual workas been produced for someone who is working for someone else, the copyright for the work may belong to the person or business that arranged to have the work done, rather than the creator of the work itself. Such arrangements are known as work for hire. Copyright law defines "work for hire" as either: 1) a work prepared by an employee within the scope of his or her employment, or 2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, provided that the parties involved expressly agree in a written contract signed by both of them that the work shall be considered a work made for hire. Indeed, contracts that specifically define copyright ownership for work performed are essential, especially for small business owners who contract work out to freelancers. "Put your employment contracts in writingven with your friends (maybe especially with your friends)," counseled Rodarmor. "When using freelancers, the contract must state that the project is work for hire or that the freelancer grants you all the rights you need and it belongs to you. If not, you may discover that your former buddies (and some forgotten freelancer in Wisconsin) are all joint owners of your new CD-ROM." In addition, he notes, distributors are typically very wary of products that do not have exclusive licenses.
Although attaching a formal notice of copyright to a work is no longer required by law (it was required prior to March 1, 1989), it is still a good idea. "Use of the notice is recommended because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication," stated the Copyright Office. "Further-more, in the event that a work is infringed, if the work carries a proper notice, the court will not allow a defendant to claim 'innocent infringement'hat is, that he or she did not realize that the work is protected. (A successful innocent infringement claim may result in a reduction in damages that the copyright owner would otherwise receive.)"
According to the Copyright Office, forms of notice vary for different kinds of intellectual works. For books, articles, sheet music, architectural plans, designs, and other kinds of "visually perceptible" works, copyright notice should contain all of the following three elements:
- The copyright symbol (the letter "C" in a circle) or the word "Copyright," or the abbreviation "Copr."
- The year of first publication of the work (in cases where the work is a compilation or derivation that incorporates previously published material, the year date of first publication of the compilation or derivation is acceptable). The year date may be omitted in instances where a pictorial, graphic, or sculptural work, with accompany text (if any) is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article.
- The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
For works that are fixed through audio meansassette tapes, CDS, "books-on-tape," etc.he requirements for copyright notice are somewhat different. Copyright notice for these types of works should contain all of the following:
- The sound recording copyright symbol (the letter "P" in a circle).
- The year of first publication of the sound recording.
- The name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. In addition, if the producer of the recording is named on the label or containers of the work, and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice.
Notice of copyright can also be extended to unpublished works. Finally, when affixing notice of copyright to intellectual works of any kind, it is important to make sure that the notice is plainly visible.
Registration of copyrighted material may be made at any time during the life of the copyright. It is no longer required under American copyright law, but there are advantages associated with taking such a step.
- Registration establishes a public record of the copyright claim
- Certificates of registration are required if the copyright owner wants to file an infringement suit
- Registration establishes prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate in instances where the registration is made within five years of original publication
- Registrations made within three months of the work's publicationr prior to any infringement of the workntitle the copyright owner to statutory damages and coverage of attorney's fees in court; otherwise, only an award of actual damages and profits is available to the copyright holder
- Registration gives the copyright owner additional protection against the importation of infringing copies
To register a copyright, the Copyright Office must receive a properly completed application form, a nonrefundable filing fee for each work that is being registered, and a nonreturnable copy of the work that is being registered. There are variations to the above rules depending on the kind of work that is being registered, so registration seekers should contact the Office beforehand to get a full rundown on what is required for their particular work. The Copyright Office uses a variety of forms for the various intellectual works that people register; copyright owners need to make sure that they use the correct one. Form TX, for example, covers published and unpublished non-dramatic literary works such as board game instructions, computer programs, and books, while Form VA is intended for use in registering published and unpublished visual works such as photographs, sculptures, and architectural designs.
All applications and materials related to copyright registration should be sent to the Register of Copyrights, Copyright Office, Library of Congress, in Washington, DC. The Copyright Office also maintains an Internet site.
INTERNATIONAL COPYRIGHT PROTECTION
As the Copyright Office itself admits, "there is no such thing as an 'international copyright' that will automatically protect an author's writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions."
The two major copyright treaties to which the United States belongs are the Universal Copyright Convention (UCC) and the Berne Convention for the Protection of Literary and Artistic Works. The United States was actually a founding member of the UCC, which came into being in September 1955. Under the rules of the UCC, a work by a citizen or resident of a member nation or a work first published in a member nation may claim protection.
The Berne Convention, meanwhile, was first established more than a century ago, in 1886. The central feature of the Berne Convention is the automatic copyright protection that it extends to all citizens of member nations. If a country is a signatory to the Berne Convention, it must extend to nationals of other member nations the same copyright protection and copyright restrictions afforded to its own citizens. The United States joined the Berne Conventionhich is regarded as the wellspring of most other national and international copyright regulationsn 1989, becoming its 77th member. In recent years, the United States has also entered into international copyright agreements enacted by the World Intellectual Property Organization (WIPO).
COPYRIGHT LAW AND THE INTERNET
The emergence of electronic commerce and digital technology triggered a fundamental reevaluation of U.S. copyright law in the 1990s. The Copyright Office has firmly supported the rights of companies to limit access to their Internet content, and the government has passed laws that make it illegal for Internet users to negate copyright protection mechanisms meant to protect Internet content. However, libraries, universities, research institutions, and other critics have charged that the Copyright Office position will unduly impede fair-use access to content in its zeal to protect owners of copyrighted material on the Internet.
In the meantime, companies are gearing up to protect electronic copyrighted material from illegal distribution. They are doing so through a variety of schemes collectively known as Digital Rights Management (DRM). These content control measures include: locking access to content through encryption schemes, plug-ins, and new markup languages. Other options include the traditional "honor system," in which permissions and payments are provided by the Copyright Clearance Center or other similar entities. Prosecution of copyright violators is another option, but Robin Peek notes in Information Today that "policing the Internet is a very expensive proposition" that is ineffective in pursuing "thousands of smallscale offenders The problem is finding a way tofight a good fight where the costs of enforcing the copyright don't exceed the cost of lost revenues in question. This difficulty is so pronounced that some experts believe that copyright, as we know it, is ultimately doomed." She goes on to note that the general counsel for the New York Times has commented that "the biggest threat to the copyright industry is the growth of a worldwide generation that really doesn't understand or respect copyright."
The Copyright Office's response to growing Internet use is not limited to policymaking. In recognition of the growing reliance on and use of the Internet, the Copyright Office is also in the process of installing an electronic registration, recordation and deposit system, dubbed CORDS. This program will ultimately provide users with the ability to register copyrights and deposit dissertations online. According to the Library of Congress, "creators will register their works electronically, transmitting both the application and the works in digital form, with registration information then incorporated into the centralized online database of copyright registration records." In addition, the program will enable copyright owners and agents to record transfers of copyright ownership (including assignments, licenses, and security interests) on an online database.
In July 1999 the Copyright Office increased its fees for a variety of services it provides, including basic registration, document recordation, supplementary and/or renewal registration, search services (including reference and bibliographic reports), and certificates. But these increases do not provide full cost recovery for its various services. Since the Copyright Office is not self-supporting, it relies on assistance from the Library of Congress general budget to fulfill its many obligations.
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Ardito, Stephanie C. "Copyright Web Sites." Online. January 1999.
Copyright Basics From the U.S. Copyright Office. Copyright Office, n.d.
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Fishman, Stephen. The Software Developer's Legal Guide. Nolo Press, 1994.
Harmon, Amy. "Copyright and Copying Wrongs: A Web Rebalancing Act." New York Times. September 10, 2000.
Kaye, Laurie. "Owning and Licensing Contentey Legal Issues in the Electronic Environment." Journal of Information Science. January 1999.
Levy, Richard C. The Inventor's Desktop Companion. Visible Ink, 1995.
Matthews, Anna Wilde. "Copyrights on Web Content are Backed." Wall Street Journal. October 27, 2000.
Peek, Robin. "The Digital Rights Management Dilemma." Information Today. November 2000.
Retsky, Maxine Lans. "Do Your Copy Right by Copyrighting It." Marketing News. December 6, 1999.
Rodarmor, William. "Copyright Rules to Live By." Newmedia. September 1993.
Wolter, Robert L. "The Basics on Patents, Copyrights, and Trademarks." Orlando Business Journal. January 17, 1997.
SEE ALSO: Trademarks
Copyright (Encyclopedia of Business)
Copyright protection provides the author of an original work in any tangible medium of expression with certain rights to use and to authorize the use of the work. Copyright law provides the copyright holder with several effective remedies when there is copyright infringement. The copyright holder may obtain an injunction to restrain the infringer from using the copyrighted material. In addition, the holder has the right to impound and destroy any reproductions of the copyrighted work that were made in violation of the copyright. The copyright holder may also seek to recover damages and attorneys' fees involved in the case.
Article I, Section 8, of the U.S. Constitution gives Congress the power to enact copyright laws "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 creations of inventors are protected by patents. Manufactured goods and other tangibles may be protected through trademarks. When Congress passed the Copyright Act of 1790, it granted copyright protection to "the authors and proprietors" of maps, charts, and books. Subsequent acts and revisions have taken technological advances into account and expanded copyright protection to include musical and dramatic compositions, computer programs and software, sound recordings, and paintings and drawings, among other items.
The copyright laws of the United States are contained in Title 17 of the U.S. Code Annotated (USCA). The Copyright Act of 1976 was the first major revision since 1909. Among other things, the 1909 act established the office of Register of Copyrights as part of the Library of Congress. The Copyright Act of 1976, which became effective January 1, 1978, established federal statutory protection for seven classes of original works of authorship, with copyright protection beginning as soon as the work was fixed in a copy or phonorecord.
DURATION OF COPYRIGHT PROTECTION
Since Article I, Section 8, of the Constitution contains the phrase "for limited times," copyright protection cannot be extended indefinitely. The term of protection granted by the Copyright Act of 1790 was 14 years plus a renewable term of an additional 14 years. The 1909 Copyright Act doubled the term of protection to 28 years plus a renewable term of another 28 years, providing a maximum protection of 56 years. Then the Copyright Act of 1976 expanded the duration of copyright protection for works created after January 1, 1978. Legal copyright protection for such works ordinarily lasted for the entire life of the author, plus an additional 50 years after the author's death. Works published prior to January 1, 1978, were subject to different rules contained in Section 303 of the Copyright Act.
The most recent legislation to affect copyrights was passed on October 27, 1998. The Copyright Term Extension Act added another 20 years of copyright protection, so that works would now be protected for the life of the author plus another 70 years. Works with corporate authorship as well as anonymous and pseudonymous works would be protected for 95 years after the date of first publication or 120 years after creation, whichever came first. In 1998 Congress also passed the Digital Millennium Copyright Act, which addressed some of the copyright issues relating to digital technology. It established penalties for circumventing protection technologies, limited online-service provider liability, and allowed digital preservation, among other things.
INTERNATIONAL COPYRIGHT PROTECTION
During the 20th century, international copyright protection has been afforded by countries that were signees to the Berne Convention for the Protection of Literary and Artistic Works (1886) and the UNESCO Universal Copyright Convention (1952). In the United States, the Copyright Act of 1976 removed many of the barriers to the United States signing the Berne Convention, and in 1988 the United States became a member of the Berne Union. The United States has been a member of the Universal Copyright Convention (UCC) since 1956, the year in which the UCC took effect. The World Intellectual Property Organization (WIPO), an agency of the United Nations headquartered in Geneva, Switzerland, promotes the international protection of intellectual property and administers various multilateral treaties covering copyright and other types of protection. The Digital Millennium Copyright Act, passed by the U.S. Congress in 1998, implemented the most recent WIPO treaties for the United States.
INTERPRETING COPYRIGHT LAW
Like other laws, copyright laws are subject to interpretation by the courts. Copyright protection does not give the copyright owner complete control over all possible uses of the copyrighted work. Rather, it provides five specific rights, which the holder may exercise or authorize others to exercise. These are the right to reproduce the copyrighted work, the right to prepare derivative works based on the copyrighted work, the right to distribute copies of the copyrighted work (or, in the case of dramatic, audiovisual, and similar works, the right to perform the copyrighted work publicly), and the right to display the copyrighted work publicly.
Not all uses of copyrighted material are subject to copyright protection. The doctrine of fair use allows individuals to reproduce a copyrighted work for a "fair use." The notion of fair use is subject to a variety of interpretations, however, and often involves legal proceedings to determine if a particular use is in fact "fair." Four factors are usually considered when determining fair use. These are the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market or value of the copyrighted work.
Not all original works are subject to copyright protection. For example, "useful articles" are not copyrightable under copyright law. In the case of a work that combines artistic and useful features, it may be necessary to obtain a court judgment to determine if the article may be copyrighted. There is also a category of works that are said to be in the public domain; these are not copyrightable. An example of a work in the public domain might be a book that was never copyrighted or whose copyright had expired, or a traditional song whose composer is unknown. Facts cannot be copyrighted, although compilations of factual material can be. Ideas cannot be copyrighted, nor can titles of books or songs. Works produced by the U.S. government are also in the public domain.
Copyright law provides that where a work was made for hire, the copyright belongs to the employer rather than to the creator. This is the single major exception to copyright ownership vesting in the author or creator of the work. There are two major sets of circumstances where a work is said to be made for hire. One is when the work is prepared by an employee within the scope of his or her employment. The other is when the work is specially ordered or commissioned, and there is an express written agreement between the parties that the work shall be considered a work made for hire.
In order to enforce one's copyright against infringers, it is necessary to register the work with the Register of Copyrights at the Library of Congress before a suit may be filed. A work need not be registered to have copyright protection, but it must carry a notice of copyright that includes the copyright symbol, the year, and the name of the copyright holder. Copyright notice is essential to obtain copyright protection unless one of the following conditions exists:
- The notice was omitted in violation of an express written agreement.
- The notice was omitted from only a few publicly distributed copies.
- The owner registered the work within five years after publication without notice and made every reasonable attempt to add the notice to all publicly distributed copies after discovering the omission.
SEE ALSO: Licensing Agreements
[David P Bianco]
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