- For Wikipedia policy about copyright issues, see
Copyright is a set of exclusive rights that regulate the use of a particular
expression of an idea or information. At its most general, it is literally "the rights to copy" an original creation. In most
cases, these rights are of limited duration. The symbol for copyright is "©", and in some jurisdictions may alternatively be
written as either (c) or (C).
Copyright may subsist in a wide range of creative, intellectual, or artistic forms or "works". These include poems, theses, plays, and other literary works, movies, choreographic works (dances,
ballets, etc.), musical compositions, audio recordings, paintings, drawings, sculptures, photographs,
software, radio and television broadcasts of live and other performances, and, in some
jurisdictions, industrial designs.
Designs or industrial designs may have separate or overlapping laws applied to them in some
jurisdictions. Copyright is one of the laws covered by the umbrella term intellectual
property.
Copyright law covers only the form or manner in which ideas or information have been manifested, the "form of material
expression". It is not designed or intended to cover the actual idea, concepts, facts, styles, or techniques which may be
embodied in or represented by the copyright work. For example, the copyright which subsists in relation to a Mickey Mouse cartoon prohibits unauthorized parties from distributing copies of the cartoon or creating
derivative works which copy or mimic Disney's particular anthropomorphic mouse, but does
not prohibit the creation of artistic works about anthropomorphic mice in general, so long as they are sufficiently different to
not be deemed imitative of the original. In some jurisdictions, copyright law provides scope for satirical or interpretive works
which themselves may be copyrighted. Other laws may impose legal restrictions on reproduction or use where copyright does not -
such as trademarks and patents.
Copyright laws are standardized through international conventions such as the Berne Convention in some countries and are required
by international organizations such as European Union or World Trade Organization from their
member states.
History
-
Copyright was not invented until after the advent of the printing press and with wider
public literacy. As a legal concept, its origins in Britain were from a reaction to printers' monopolies at the beginning of the
eighteenth century. Charles II of England was concerned by the unregulated copying
of books and used the royal prerogative to pass the Licensing Act of 1662, which
established a register of licensed books and required a copy to be deposited with the Stationers Company, essentially continuing
the licensing of material that had long been in effect. The Statute of Anne was the
first real copyright act, and gave the author rights for a fixed period, after which the copyright expired. Copyright has grown
from a legal concept regulating copying rights in the publishing of books and maps to one with a significant effect on nearly
every modern industry, covering such items as sound recordings, films,
photographs, software, and architectural works.
The Berne Convention
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 of 1988. The USA did not sign the Berne Convention until 1989.
The regulations of the Berne
Convention are incorporated into the World Trade Organization's
TRIPS agreement, thus making the
Berne Convention practically world-wide.
Obtaining and enforcing copyright
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, originality and work' which has gone into it. However, even fairly trivial amounts of these qualities are sufficient for
determining whether a particular act of copying constitutes an infringement of the author's original expression. In
Australia and the United Kingdom it has been held that a single word is insufficient to
comprise a copyright work. In the UK, however, single words or a string of words, usually less than eight, can be registered as a
"Trade Mark" instead.
In the United States, copyright has been made automatic (in the style of the Berne
Convention) since March 1, 1989, which has had the effect of
making it appear to be more like a property right. Thus, as with some forms of personal
property, a copyright need not be granted or 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 letter), the copyright holder is entitled to enforce his or her exclusive rights. However, while a copyright
need not be officially registered for the copyright owner to begin exercising his exclusive rights, registration of works (where
the laws of that jurisdiction provide for registration) does have benefits; it serves as prima
facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney's fees (whereas in the USA, for instance,
registering after an infringement only enables one to receive actual damages and lost profits). The original holder of the
copyright may be the employer of the actual author rather than the author himself if the work is a "work for hire". Again, this principle is widespread; in English law
the Copyright Designs and Patents Act 1988 provides that where a work in which copyright subsists is made by an employee
in the course of that employment, the copyright is automatically owned by the employer which would be a "Work for Hire."
Copyrights are generally enforced by the holder in a civil law court, but
there are also criminal infringement statutes. Criminal sanctions are generally aimed at serious counterfeiting activity, but are
now becoming more commonplace as copyright collectives such as the RIAA are, more and more, targeting the file
sharing home Internet user. Thus far, however, most such cases against file sharers have been settled out of court for
several thousand dollars. (See: File sharing and the law)
Copyright notices in the U.S.
Prior to 1989, use of a copyright notice — consisting of the letter C inside of a circle (that is,
"©"), 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 — was part of United States statutory requirements.[1][2] Several years may be noted
in the case of multiple completion dates - e.g., in the case of ongoing editing. The letter C inside of parentheses ("(c)") has
never been an officially recognized designator.[citation needed] The proper copyright notice for audio recordings of musical compositions is
a "P" inside a circle (that is, "℗"), which stands for phonorecord copyright.
In 1989, the U.S. 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.[3] However, notice of copyright (using these
marks) does have consequences in terms of allowable damages in an infringement lawsuit in some places.[citation needed]
The phrase All rights reserved was once a necessary formal notice
indicating all rights granted under existing copyright law are retained by the copyright
holder and that legal action may be taken against copyright infringement. It was
provided as a result of the Buenos Aires Convention of 1910, which required some
statement of reservation of rights to grant international coverage in all the countries that were signatory to that convention.
While it is commonplace to see it, this notice is now superfluous, as every country that is a member of the Buenos Aires
Convention is also a member of the Berne Convention, which holds a copyright to be valid in all signatory states without any
formality of notice. This phrase is sometimes still used even on some documents to which the original author does not
retain all rights granted by copyright law, such as works released under a copyleft license. It
is, however, only a habitual formality and is unlikely to have legal consequences.
Absence of a copyright notice does not mean that the work is not covered by copyright. The creator of an original work
instantaneously possesses its copyright when that work is created through "mental labor" and "fixed" in tangible form. Thus, a
natural copyright exists from the time a work is invented or created, regardless of whether it has been registered with a
particular Copyright Office.
Since all countries have separate copyright laws, there is no such thing as an "international copyright". The Berne
Convention, however, makes the copyright automatic in each signatory. Should copyright infringement litigation ensue,
registration with the U.S. Copyright Office may affect the outcome.[citation needed]
Exclusive rights
Several exclusive rights typically attach to the holder of a copyright:
- 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 assign these rights to others
- to transmit or display by means of digital audio transmission (XM Satellite Radio, Sirius)
The phrase "exclusive right" means that only the copyright holder is free to exercise the attendant rights, and others are
prohibited using the work without the consent of the copyright holder. Copyright is often called a "negative right", as it serves
to prohibit people (e.g. readers, viewers, or listeners, and primarily publishers and would be publishers) from doing something,
rather than permitting people (e.g. authors) to do something. 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 its duration. This means an author
can choose to exploit their copyright for some of the duration and then not for the rest, vice versa, or entirely one or the
other.
There is however a critique which rejects this assertion as being based on a philosophical interpretation of copyright law, and is not universally shared. There is also
debate on whether copyright should be considered a property right or a moral right. Many argue that copyright does not exist merely to restrict third parties from publishing
ideas and information, and that defining copyright purely as a negative right is incompatible with the public policy objective of
encouraging authors to create new works and enrich the public domain.
The right to adapt a work means to transform the way in which the work is expressed. Examples include developing a stage play
or film script from a novel; translating a short story; and making a new arrangement of a musical work.
Limits and exceptions to copyright
-
Idea-expression dichotomy and the merger doctrine
-
Immanuel Kant in his 1785 essay Von der Unrechtmäßigkeit des Büchernachdrucks
distinguishes the physical from the ideational, the thought involved from the book. This distinction is of critical importance to
the near constant wrangling between publishers, other intermediaries, and the original, creative authors.
A copyright covers the expression of an idea, not the idea itself — this is called the idea/expression or fact/expression
dichotomy. For example, if a writer has a general concept or idea for a television program, a copyright of that "idea" does not
prohibit other writers from creating the same general idea for a project. However, if the writer develops the idea to a point of
detailed and specific aspects and storylines of the show, then that specific expression of the idea is copyrighted. Many writers
will seek electronic proof-of-creation for their developed ideas using the Writers Guild, or CreatorsVault.com online registries. Once a writer secures their copyright or registration with one of these
services, they must then take care to track all exposure with documentation, either via fax, certified mail, or electronic proof of submission.
Another example could be if a book is written describing a new way to organize books in a library, a copyright does not
prohibit a reader from freely using and describing that concept to others; it is only the particular expression of that process
as originally described that is covered by copyright. One might be able to obtain a patent for
the method, but that is a different area of law. Compilations of facts or data may also be copyrighted, but such a copyright is
thin; it only applies to the particular selection and arrangement of the included items, not to the particular items themselves.
In some jurisdictions the contents of databases are expressly covered by statute.
In some cases, ideas may be capable of intelligible expression in only one or a limited number of ways. Therefore even the
expression in these circumstances is not covered. In the United States this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. Merger is
often pleaded as an affirmative defense to charges of infringement. That doctrine is
not necessarily accepted in other jurisdictions.
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 of their licensee 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 addition, copyright, in most cases, does not prohibit one from acts such as modifying, defacing, or destroying his or her
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 your use
- the nature of the copyrighted work
- what amount and proportion of the whole work was taken, and
- 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 Australia, the fair dealing exceptions under the Copyright Act 1968 (Cth)
are a limited set of circumstances under which copyright 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 (ie
legal advice). Under current Australian law 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. 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.
Transfer and licensing
A copyright, or aspects of it, 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 his 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 and/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; see section 239 of the Australia Copyright Act 1968 (Cth). Under Australian
law, it is not enough to pay for a work to be created in order to also own the copyright. The copyright itself must be expressly
transferred in writing.
Under the U.S. 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 U.S. 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,
RIAA and MPAA) 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.
Similar legal rights
Copyright law covers the creative or artistic expression of an idea. Patent law covers
inventions. Trademark law covers distinctive
signs which are used in relation to products or services as indicators of origin, as
does (in a similar fashion), Trade dress. Registered designs law covers the look or
appearance of a manufactured or functional article. Trade secret law covers secret or
sensitive knowledge or information.
Although copyright and trademark laws are theoretically distinct, more than one type of them may cover the same item or
subject matter. For example, in the case of the Mickey Mouse cartoon, the image and name of Mickey Mouse would be the subject of
trademark legislation, while the cartoon itself would be subject to copyright. Titles and character names from books or movies
may also be trademarked while the works from which they are drawn may qualify for copyright.
Another point of distinction is that a copyright (and a patent) is generally subject to a statutorily-determined term, whereas
a trademark registration may remain in force indefinitely if the trademark is periodically used and renewal fees continue to be
duly paid to the relevant jurisdiction's trade marks office or registry. Once the term of
a copyright has expired, the formerly copyrighted work enters the public domain and may be
freely used or exploited by anyone. Courts in 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.
Useful articles
If a pictorial, graphic or sculptural work is a useful article, it is copyrighted only if its aesthetic features are separable
from its utilitarian features. A useful article is an article having an intrinsic utilitarian function that is not merely to
portray the appearance of the article or to convey information. The must be separable from the functional aspect to be
copyrighted.
There are two primary approaches to the separability issue: physical separability and conceptual separability. Physical
separability is the ability to take the aesthetic thing away from the functional thing. Conceptual separability can be found in
several different ways. It may be present if the useful article is also shown to be appreciated for its aesthetic appeal or by
the design approach, which is the idea that separability is only available if the designer is able to make the aesthetic choices
that are unaffected by the functional considerations. A question may also be asked of whether an individual would think of the
aesthetic aspects of the work being separate from the functional aspects.
There are several different tests available for conceptual separability. The first, the Primary Use test, asks how is the
thing primarily used: art or function? The second, the Marketable as Art test, asks can the article be sold as art, whether
functional or not. This test does not have much backing, as almost anything can be sold as art. The third test, Temporal
Displacement, asks could an individual conceptualize the article as art without conceptualizing functionality at the same time.
Finally, the Denicola test says that copyrightability should ultimately depend on the extent to which the work reflects
the artistic expression inhibited by functional consideration. If something came to have a pleasing shape because there were
functional considerations, the artistic aspect was constrained by those concerns.
How long copyright lasts
Copyright subsists for a variety of lengths in different jurisdictions, with different categories of works and the length it
subsists for also depends on whether a work is published or unpublished. In most of the world the default length of copyright for
many works is generally the life of the author plus either 50 or 70 years. Copyright in general always expires at the end of the
year concerned, rather than on the exact date of the death of the author. (The right to reclaim a copyright--or "terminate the
transfer" of a copyright--commences and ends on the anniversaries of exact dates in the United States.)
So when can one conclude that a book is in the public domain? In the United States, all books and other works published before
1923 have expired copyrights and are in the public domain. 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, except that books originally published
outside the US by non-Americans are exempt from this requirement, if they are still under copyright in their home country (see
How Can I Tell Whether a
Copyright Was Renewed for more details).
Under § 105[1] of
the Copyright Act, all works created by the U.S. Government (other than works of standard reference data produced by the
U.S. Secretary of Commerce under the Standard Reference Data Act,
codified at 15 U.S.C. § 290e[2]) are not subject to copyright. Note, however, that the U.S. Postal Service is a quasi-public corporation wholly owned by the U.S.
Government[3], and is not
part of the U.S. government, per se. Therefore, works of the Postal Service are not "works of the U.S. government" for
purposes of § 105 and are generally subject to copyright. See the Compendium II: Copyright Office Practices, § 206.02(b)[4].
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 U.S., 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 Italy and France, there are
wartime extensions that could increase the term by approximately 6 years in Italy and up to about 14 in France. Some works are
covered by copyright in Spain for 80 years after the author's death.
In 1998 the length of a copyright in the United States was increased by 20 years under the The Copyright Term Extension Act. Disney lobbied extensively for this legislation which
protects its exclusive rights to Mickey Mouse.
As a curiosity, the famous work Peter Pan has a very complex story of copyright expiry.
Typefaces
In the United States, the Copyright
Office maintains that typeface designs are not covered by copyright, and it will not
accept applications for their registration. See 37. C.F.R. § 202.1(e). However, if a design is novel and "non-obvious," it may be
covered by design patent. See, for example, U.S. Des. Patent No.
289,773 , May 12, 1987), Charles A. Bigelow and Kris A. Holmes, inventors.
Germany (in 1981) passed a special extension (Schriftzeichengesetz) to the design patent law
(Geschmacksmustergesetz) for protecting them. This permits typefaces being registered as designs in Germany, too.
The United Kingdom (in 1989) has passed a law making typeface designs copyrightable.
The British law also applies to designs produced before 1989.
Accessible Copies
It is legal in several countries including Great Britain and the USA to produce
alternate versions (for example, in large print or braille) of a copyrighted work to provide improved access to a work for blind
and visually impaired persons without permission from the copyright holder.[4][5]
References
- ^ Copyright Act of 1976, Pub.L. 94-553,
90 Stat. 2541, § 401(a) (October 19, 1976)
- ^ The Berne Convention Implementation Act of 1988 (BCIA), Pub.L. 100-568, 102 Stat. 2853, 2857. One of the changes introduced by the BCIA was to section 401, which governs
copyright notices on published copies, specifying that notices "may be placed on" such copies; prior to the BCIA, the
statute read that notices "shall be placed on all" such copies. An analogous change was made in section 402, dealing with
copyright notices on phonorecords.
- ^ http://www.copyright.gov/circs/circ03.html
- ^ Copyright Law of the USA, Chapter 1 Section 121: http://www.copyright.gov/title17/92chap1.html#121
- ^ Copyright (Visually Impaired Persons) Act 2002 (England): http://www.rnib.org.uk/xpedio/groups/public/documents/publicwebsite/public_cvipsact2002.hcsp
See also
National copyright laws
International treaties
Critique