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The legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work.
adj.To secure a copyright for.
copyrightable cop'y·right'a·ble adj.The legal ownership of a "work," which can take any of the following forms: written text, program source code, graphics images, sculpture, music, sound recording, motion picture, pantomime, choreograph and architecture. Before January 1, 1978, a work had to be published to be copyrighted. After that date, any work expressed in paper or electronic form is automatically copyrighted for the life of the author plus 70 years. Registration with the Copyright Office is not required, although it is beneficial if there are disputes later on. In the U.S., a copyright symbol is not mandatory, but recommended.
For works by an anonymous author or an author who uses a fictitious name (pseudonymous) as well as works "made for hire," such as a publication written by an employee of a company, the copyright lasts 120 years from date of creation or 95 years from date of publication, whichever is shorter. For more information, visit www.copyright.gov. See Creative Commons, copyleft, trademarks, DRM and image protection.
Form of protection granted by United States law to authors, artists, and musicians for their original work (including advertisements and commercials). A copyright protects the work from being copied, reprinted, sold, or used by someone else without the consent of the owner of the work. The Copyright Act of 1976, which became effective in January 1978, provides this protection for the period of the owner's lifetime plus an additional 50 years. (Previous to 1978, a copyright had been in force for 28 years and was subject to renewal for another 28 years, providing protection for a maximum of only 56 years.) Under this new law, a work is considered copyrighted immediately upon creation and need not be published or registered in order to be considered copyrighted. However, registration does offer certain advantages-for example, it establishes a public record and validity of the copyright, and if registration is made within three months after publication (or prior to an infringement), statutory damages and attorney fees will be available to the copyright owner. For this reason, it is advisable that advertisers copyright their advertisements and commercials. When the copyright expires, the work comes into the category of public domain and can then be used by anyone. It is important to note that copyrighting protects the expression of an idea but not the idea itself. Also, names, titles, systems, and methods cannot be copyrighted.
Protection given by law to authors of literary, musical, artistic, and similar works. The copyright holder enjoys the following exclusive rights: (1) to print, reprint, and copy the work; (2) to sell, assign, or distribute copies; and (3) to perform the work. A copyright is recorded at its acquisition price. The legal life of a copyright is the life of the author plus 70 years. Rarely will the economic life of a copyright exceed its legal life. For example, some textbooks become obsolete in five years. As other limited life intangible assets, copyrights are amortized over the period benefited.
The Constitution empowers Congress “[t]o promote the Progress of Science … by securing for limited Times to Authors … the exclusive Right to their … Writings.” Long described simply as the law of literary property, today copyright law affords to creators not only of most literary, musical and artistic works, but also of architectural works and computer software and databases, a limited monopoly on the use of the products of their minds—a powerful incentive to create.
The foundational decision was Wheaton v. Peters (1834), in which the Supreme Court, denying claimed ownership of its opinions by the Court's own Reporters of Decisions, held that copyright exists primarily to benefit the public rather than authors or assigns.
At times, the Court has struggled when asked to extend copyright protection to new technologies, for example, piano rolls (White‐Smith v. Apollo, 1908) and VCRs (Sony v. Universal City Studios, 1984). The risk of failing to provide protection in such instances, observed Justice Oliver Wendell Holmes, Jr. (concurring in White‐Smith), is that the result may accord copyright “less scope than its rational significance and the ground on which it is granted seem … to demand” (p. 19).
In general, the Court has displayed marked flexibility in interpreting key terms of the Copyright Clause, for example, by recognizing photographs as “Writings” (Burrow Giles Lithographic v. Sarony, 1884) and corporations as “Authors” (Bleistein v. Donaldson Lithographing, 1903), as well as by deferring to Congress in approving repeated extensions of the “limited Times” for which copyright may be granted (Eldred v. Ashcroft, 2003).
Overall, however, the dominant themes in the Court's copyright jurisprudence have been promoting the general welfare and protecting the public domain, including recognizing statutory limitations on copyright grants (Wheaton, supra), according protection for expression but not underlying ideas (Baker v. Selden, 1880), declaring that the first sale of a copy of a work precludes the copyright owner from controlling future sales of that copy (Bobbs‐Merrill v. Straus, 1908), reaffirming constitutional minima for protectible authorship (Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 1991), and implementing the fair use doctrine to assure reasonable use of protected matter by subsequent authors (Campbell v. Acuff‐Rose Music, 1994).
In the twenty‐first century, as technologies for creating and distributing works expand rapidly along with economic pressures on Congress to protect copyright owners, the Court's challenge, as always, will be to subject both to the overriding public purposes of copyright envisioned by the Founders.
— Craig Joyce
For more information on copyright, visit Britannica.com.
Copyright is the ownership of and right of control over the means of reproducing works of literature, art, drama, film, sound, and computer technology. Until the 18th cent. authors had little protection against pirate publication of their works. An important step forward was a statute of 1709 ‘to encourage learned men’ (8 Anne c. 19) by granting the author sole right of publication for fourteen years, with the possibility of a further extension of another fourteen years. Copyright now lasts 70 years after the death of an author. Under the terms of the Public Lending Rights scheme, introduced in 1983, authors can receive royalties on the use of their books in libraries in Britain and elsewhere.
Copyrightable Materials
Literary matter, periodicals, maps, photographs, works of art, textile and other designs, sound recordings, musical compositions, photoplays, and radio and television programs are among the commodities that may be copyrighted. Material for copyright in the United States must be registered and deposited with the Library of Congress. The law makes special provision for the transmission of copyright material over cable television, jukeboxes, and public broadcasting stations. It also specifies circumstances under which the reproduction of copyrighted works by libraries and archives is permissible. Since 1980, computer software has been eligible for the same copyright protection as printed matter, and in 1984, a ten-year period of copyright protection was extended to semiconductor chips. The Supreme Court ruled in 1987 that neither the home use of television video recorders nor their manufacture violated the copyright laws.
The Bern and Universal Copyright Conventions
Copyrighting of foreign materials in the United States is a relatively recent development. After 1891, foreign language material was easily copyrighted in the United States; material in English, however, could not be copyrighted if it was imported, unless type was set and material printed and bound in the United States. Most of the major countries of the world, with the exception of the United States, adhered to the Bern Convention of 1887, which provided that literary material copyrighted in any signatory country automatically enjoys copyright in all the signatory countries.
The Universal Copyright Convention (UCC), which had as a main purpose the inclusion of the United States in a general system of international copyright, was signed at Geneva in 1952. It was accepted by the United States in 1954 and came into effect the following year. The U.S. copyright law was modified to conform to the convention, notably by elimination of procedural steps for the establishment of U.S. copyright in works published in other signatory countries and of the requirement that works in the English language by foreign authors be manufactured in the United States to obtain U.S. copyright protection. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) played a leading part in the negotiations for the UCC, which was revised in 1971. In 1989 the United States became a member of the Bern Convention, which was most recently revised in 1971. Most nations subscribe to the convention, and most of those who do not are parties to the UCC or members of the World Trade Organization, whose agreements cover copyright and other intellectual property rights.
History
Protection of rights in literary property did not appear necessary in Europe prior to the invention of printing from movable type in the 15th cent. The sovereign asserted control over printing by issuing patents or privileges to individuals or by organizing publishers' guilds with monopoly rights. Through such devices, the state was able to censor heresy and sedition, while at the same time fostering literature. The only protection that the common law extended to the author was against publication of the work without permission; once publication was allowed, the work passed completely out of the author's control.
The first English copyright act (1710), while maintaining the common-law right, allowed the author to copyright a work for 14 years (with a like period of renewal); it also required deposition of copies and a notice that the work was copyrighted. That law was the model for the earliest American copyright statute, passed in 1790. Wheaton v. Peters (1834; see Henry Wheaton) established that copyright exists primarily for the public benefit rather than for the creator of the work. The current copyright statute became effective in 1978, superseding an act of 1909. The law provides copyright for the duration of the author's life plus 70 years.
Bibliography
See B. Kaplan, An Unhurried View of Copyright (1967); W. S. Strong, The Copyright Book (1986); H. G. Henn, Copyright Law (1988); J. M. Samuels, ed., Patent, Trademark, and Copyright Laws (1989); E. Samuels, The Illustrated Story of Copyright (2000).
An intangible right 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 the person 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 author protection such as patents, which give inventors exclusive rights over use of their inventions, and trademarks, which are legally protected words or symbols that represent products or services. 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. And 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; 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 right — in effect, a monopoly — on written works. It was not until 1710 that Parliament passed a statute related to copyright. This 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 twenty-eight 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 postpublication 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 Clause — Article I, Section 8, Clause 8 — of the U.S. Constitution empowers Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries." Congress passed its first copyright statute in 1790 — and 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 law.
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 act, an author receives copyright protection as soon as a work is recorded in a concrete way — when, 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.
Many features of the 1976 Copyright 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 twenty-five years to the minimum standard for copyright duration, changing it to the length of the author's life plus seventy-five years. U.S. copyright law is expected to follow suit.
Copyrightable Works
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 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); works containing no original authorship (such as standard calendars or simple phone listings); and works produced for the officers and employees of companies and organizations.
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 have traditionally 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 work 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.
Exclusive Rights
Copyright affords an author a number of exclusive rights: (1) to reproduce, or copy, the work; (2) to prepare new works that derive from the copyrighted work; (3) to distribute the work to the public by sale or other arrangement; (4) to perform the work publicly; and (5) 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 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 Copyright Act of 1976, copyright protection of an authored work extends throughout the life of the author and to fifty years after the author's death. Thus, it is possible for authors to benefit from royalties on their works until their death, and to pass on copyright and associated royalties to their heirs. In the case of joint works, the termination date of the copyright is fifty years after the death of the last surviving author.
As for works made for hire, pseudonymous works, and anonymous works, the copyright generally expires seventy-five years after publication or one hundred years after creation, whichever occurs first. However, in the case of an anonymous or pseudonymous work, an author or interested party, such as an heir, may reveal to the Copyright Office the true identity of at least one author of the work, and be eligible for the full duration of copyright until fifty years after the author's death.
Infringement
Infringement involves any violation of the exclusive rights of the copyright owner. Infringement may be unintentional or intentional. When unintentional, it is called innocent infringement. An example of innocent infringement occurred when George Harrison, of the rock band the Beatles, created his song "My Sweet Lord." Harrison unconsciously copied the tune of another song, "He's So Fine," by the Chiffons, and was found guilty of 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 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.
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 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 recordings — in which criminals mass-produce such recordings without permission and without paying royalties — has 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 one thousand phono records or sixty-five films within 180 days. The fraudulent use or removal of copyright notices is also a punishable offense.
Fair Use
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. Well-tested 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 TV programs or films by individuals for 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 that considers 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 from it and 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 Nation magazine of quotations from Gerald R. Ford's unpublished memoir, A Time to Heal. Harper & Row, publisher of the memoir, sued 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. The Court found that Nation had infringed on Ford's copyright by becoming the first publisher of his original expression, thereby inflicting economic losses on Ford. It rejected 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 and satire often constitute 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 500— which involved a parody by the rap group 2 Live Crew of the Roy Orbison song "Pretty Woman" — the U.S. Supreme Court ruled that a parody can 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 Copyright Office 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 ;cW 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 required that works be registered and deposited with a U.S. district court or with the register of copyrights at the Library of Congress, 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 still have significant legal consequences. Most important, 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 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 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.
See: copyright, international.
The legal protection given to published works, forbidding anyone but the author from publishing or selling them. An author can transfer the copyright to another person or corporation, such as a publishing company.
A grant of an exclusive right to produce or sell a book, motion picture, work of art, musical composition, software, or similar product during a specified period of time.
Writers are wise to get a copyright for their magazine articles.
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.
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 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.
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)
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]
Several exclusive rights typically attach to the holder of a copyright:
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.
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.
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
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.
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:
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.
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.
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
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.
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
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.
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.
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.
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]
