This article examines copyright laws and the process of protecting works by registering copyrights. The history of copyrights is reviewed along with the types of works that can be copyrighted. International trends and activities in copyright law and copyright protection are explained. The concept and process of fair use of copyrighted materials is examined along with the some of the problems that creators have encountered when using the copyrighted material of others to create a parody. Issues in combating piracy and copyright infringement are reviewed along with some of the social issues surrounding various antipiracy efforts.
Keywords Copyright Infringement; Copyright Law; Copyright Registration; Fair Use; Intellectual Property; Intellectual Property Piracy
A copyright gives the owner of a created work the right to use, sell, or license the creation and prohibits others from doing so without appropriate approval from the copyright owner. A copyright extends protection for the work as long as the author is alive plus 70 years after the author's death. This duration enables the estate of the author to collect royalties from the work (United States Copyright Office, 2008). Central to the concept of copyright are economic rights that are recognized by copyright laws around the world and generally apply to any commercial activity including physical reproduction of books, public performances, and electronic distribution (UNESCO, 2009).
The United States Copyright Office
The United States Copyright Office has several strategic goals and responsibilities.
- First, the Office works to support Congress, the executive branch, and the courts on issues related to copyright policy and regulations.
- Second, the Office serves the public with registration services and information on copyright processes and issues.
- Third, the Office is responsible for acquiring copyrighted works to be deposited in the Library of Congress. Since 1870, copyright deposits have formed the bulk of the library's best-in-class collections of books, sound recordings, photographs, motion pictures, and other creative works.
- Finally, the Office strives to be a leader in educating the public about copyright issues such as piracy and the affect of emerging technologies on copyrights (United States Copyright Office, 2008).
In 2007, the United States Copyright Office registered over 500,000 claims to copyright. More than one million items were transferred to the Library of Congress and were valued at over $45 million, half of which were obtained through the mandatory deposit requirements set in copyright law. The Office collected licensing royalties of $234 million and distributed $280 million in royalties. In addition, the Office responded to over 300,000 inquires for information (United States Copyright Office, 2007).
U.S. Copyright Law
The Copyright Act of 1976 is the basis of copyright law. In the United States, the Federal Copyright Office manages the process of registering copyrights. Once a work is filed with the Copyright Office, a public record of the copyright claim is established (United States Copyright Office, 2008)
"Copyright protection is available for original works or authorship in a tangible medium. Works of authorship include: Literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works" (United States Copyright Office, 2007). Copyright protection is also available for computer chip designs and vessel hull designs. In addition, computer programs or software packages sold for commercial or private use can also be copyrighted (United States Copyright Office, 2008).
International Copyright Law
International action on the protection of copyrights dates back to the Berne Convention for the Protection of Literary and Artistic Works held in 1896. The convention has been revised and updated several times since it was first developed. International activity and cooperation on copyright administration and protection accelerated after World War II. With the support of The United Nations Educational, Scientific, and Cultural Organization (UNESCO), the Universal Copyright Convention was adopted in 1952 (UNESCO, 2009).
The World Intellectual Property Organization (WIPO) continues to work on copyright issues with countries around the world. The WIPO Standing Committee on Copyright and Related Rights (SCCR) meets frequently to discuss ongoing as well as emerging issues, including the protection of broadcasting organizations and the protection of audiovisual performances. Work is also continuing on the WIPO Copyright Treaty, and discussions have focused on software, databases, and Internet distribution and content (WIPO, 2009).
Similar to the patent process, the copyright process is becoming more harmonized around the world. Most countries have an established copyright office and a registration process. The procedures for managing copyrights at the national level, as with managing patent applications and grants, are evolving consistently toward the recommendations and standards of WIPO. However, not all countries are in step with international efforts to protect copyrights, especially those copyrights that are registered in other countries (Crockford, 2008).
Under United States law, copyright protection is automatic when an original work is created and is put into a tangible form. The work does not need to be published or registered with the Copyright Office (Dames, 2009). However, many people feel that it is prudent to register their creation with the Copyright Office, and there are national offices in virtually every country in the world where they can accomplish this.
The Copyright Process
The process of registering a copyright is not overly complicated and can be done online or by competing paper forms and filing them with the Copyright Office. The electronic process and the paper process are not substantially different but the electronic process is not equipped to handle all items that can be copyrighted at this time. Each of the methods requires three basic steps: completing a form, paying a fee, and submitting a copy of the work (United States Copyright Office, 2009).
Fees for registering a copyright vary, and other fees are applicable for a variety of services provided by the Copyright Office. These services include searches, copying, and bulk registration (United States Copyright Office, 2009).
Economic Implications of Copyright Law
The economic importance of copyrights cannot be overstated. The International Intellectual Property Alliance (IIPA), a coalition of seven trade associations with members that produce and distribute copyrighted materials, contends that in 2010, the value added to the United States Gross Domestic Product (GDP) by copyrighted materials was $1.627 trillion. This is equivalent to about 11.1% of the 2010 GDP (IIPA, 2011).
IIPA members are very serious about protecting their industry and the economic benefit of their members as derived from copyrights. The members of the IIPA are the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Entertainment Software Association (ESA), the Independent Film & Television Alliance (IFTA), the Motion Picture Association of America (MPAA), the National Music Publishers' Association (NMPA), and the Recording Industry Association of America (RIAA) (Siwek, 2011).
An Ever Evolving Prospect
Copyright laws will continue to evolve. More countries will adopt mainstream copyright practices and copyright protection. New technologies will continue to change how the distribution of copyrighted material is managed and licensed (Kaushik & Prakash, 2009) (Quint, 2009). As distribution systems such as cable and satellite television add more features and services, lawmakers will be faced with more copyright protection issues as well as more regulatory challenges ("Cable, satellite," 2009).
Balancing Owner Rights
There has been ongoing debate, as well as numerous court cases, regarding the concept and practice of the fair use of copyrighted material. The purpose of the fair use process is to allow creativity, scholarship and research to continue and to promote the creation of knowledge and the perpetuation of culture (Kirsch & Klett, 2009). As new technologies emerge and the consumer demand for content continues to grow, the boundaries of fair use have often become blurred and violated.
The goal of copyright protection is to provide the owner "the right to reproduce or to authorize others to reproduce their work" and to receive economic gain for doing so (UNESCO, 2009). The primary limitations to these rights are established in sections 107 through 118 of the Copyright Act (title 17, U.S. Code) and are centered in the doctrine of "fair use." Section 107 provides "a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research" (United States Copyright Office, 2006) (Mattingly & Samardzija, 2009).
Section 107 also provides four factors that need to be considered in determining whether or not a specific use is fair:
1) The purpose and character of the use, including whether such use is of 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. 4) The effect of the use upon the potential market for or value of the copyrighted work (United States Copyright Office, 2006).
Determining Copyright Infringement
The determination as to whether use is a copyright infringement or use is fair is not easily defined. There is a lack of structure and formula in making the determination. For example, there is not a specific number of words, lines, or notes that automatically constitute fair use. In addition, citing the source does not also automatically constitute fair use (United States Copyright Office, 2006).
The courts have agreed that a use is fair in many generic circumstances including excerpts in a review or criticism and brief quotations in a news report. Other court rulings have included reproduction by a library of a portion of a work to replace part of a damaged copy and reproduction by a teacher of a small part of a work for use in a lesson, or to illustrate a lesson. Not surprisingly, fair use has also been expanded to include reproduction of a work in legislative or judicial proceedings or reports (United States Copyright Office, 2006).
On November 14, 2013, a federal judge ruled that Google did not violate copyright with its massive book scanning project, arguing that the project was fair use under copyright law and provided ï¿½significant public benefitsï¿½ (The Authors Guild, Inc. vs. Google, Inc., 2013).
Over time, the use of copyrighted material in a parody has also been covered under the concept of fair use (United States Copyright Office, 2006). The creation of parodies has also been considered free speech and is protected by the First Amendment (Celedonia and Doyle, 2007). However, because the goal of a parody is basically to make fun of a person, product, idea, or belief, it is not likely that a copyright owner would grant a parody creator permission to use the work. Thus, any parody creator that uses the original work of another person or company will assume some risk of being accused of infringement (Johnson & Spilger, 2000).
The parody creator faces many challenges in avoiding or maintaining innocence in an infringement lawsuit. First, the court must determine that a work is indeed a parody. Second, the parody creator must be able to demonstrate that the use of the material falls within the guidelines and is consistent with previous court rulings as to what is fair use (Johnson & Spilger, 2000). It is important that the parody creator note that courts have anguished over the fair use defense when dealing with works of parody, and just because the creator thinks something is a parody does not dissolve possible litigation and rather costly legal fees (Eisenstein, 2000).
Case Study: Al Franken's "Lies and the Liars Who Tell Them"
One of the many parodies to draw backlash in the 2000swas Al Franken's book "Lies and the...
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