Copyright

A copyright provides its holder the right to restrict unauthorized copying and reproduction of an original expression (i.e. literary work, movie, music, painting, software, mask work, etc.) Copyright stands in contrast to other forms of intellectual property, such as patents, which grant a monopoly right to the use of an invention, because it is not a monopoly right to do something, merely a right to prevent others doing it.

Background

Rights of copyright holder

A copyright holder typically has exclusive rights:

to make and sell copies of the work (including, typically, electronic copies)
to import or export the work
to make derivative works
to publicly perform the work
to sell or assign these rights to others

What is meant by the phrase "exclusive right" is that the copyright holder and only the copyright holder is allowed to do these things; everyone else is prohibited from doing them without the copyright holder's consent. Copyright is often called a "negative right", to stress that it has less to do with permitting people (e.g. authors) to do anything, and more to do with prohibiting people (e.g. readers, viewers, or listeners) from doing something: reproducing the copyrighted work. In this way it is similar to the Unregistered Design Right in English Law and European Law.

Transfer of rights

Copyrights may be granted, sold, or relinquished. Very often, a copyright holder will, by contract, transfer his copyrights to a corporation. For example, a writer who writes a novel will sign a publication agreement with a company such as Random House in which the writer agrees to transfer all copyrights to Random House in exchange for royalties and other terms. One might ask why a copyright holder would ever give up his rights. The answer is that large companies such as Random House generally have production and marketing capabilities far beyond that of the author. In the digital age of music, music may be copied and distributed for a minimal cost through the Internet, but record labels attempt to provide the service of promoting and marketing the artist so that his work can reach a much larger audience. A copyright holder does not have to transfer all rights completely. 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.

Idea-expression dichotomy and the Merger Doctrine

Main article: Idea-expression divide

Copyright covers the expression of an idea, not the idea itself—this is called the idea-expression divide. For example, if a book is written describing a new way to organize books in library, a reader can freely use that method without being sued and even describe it to others; it is only the particular way in which the original author described that process that is protected by copyright. One might be able to obtain a patent for the method, but that is a different subject. Compilations of facts or data may be copyrighted if the facts are selected and arranged in an original manner, though protection will only apply to wholesale copying of that selection and arrangement and not to the facts themselves.

In some cases, ideas may only be capable of intelligible expression in only one or a limited number of ways. Therefore even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only. 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 infringement, though some believe that it should prevent the material at issue from being copyrighted in the first place.

Doctrine of first sale

Note that copyright law does not restrict resale of copies of works, provided those copies were made by or with the permission of the copyright holder. Thus it is legal, for example, to resell a book or a CD that you have purchased, provided you do not keep a copy for yourself. In the US this is known as the First Sale Doctrine, and was established in the US court system to clarify the legality of reselling books in used book stores. Elsewhere it has other names; in the United Kingdom it is known as "Exhaustion of rights" and is a principle which applies to other Intellectual property rights.

Subject to moral rights, copyright also does not prohibit the owner of a physical copy of a work from modifying, defacing, destroying, etc. the work, so long as this does not involve duplication.

Fair use

Copyright also does not prohibit all forms of copying. In the United States, the fair use clause of the Copyright Act (17 U.S.C. Section 107) allows copying and distribution when done fairly. The statute does not clearly define fair use, but examples of fair use are given, and four non-exclusive factors are offered for a fair use analysis. Copyrighted works may also be available for copying through a statutory compulsory license scheme or via a copyright collective or performing rights organisation such as ASCAP or BMI.

How copyrights are obtained and enforced

Typically, works must meet minimal standards of originality in order to qualify for a copyright, and the copyright expires after a set period of time. Different countries impose different tests, although generally the test is 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.

In the United States, the original owner 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 1988 provides that where a work in which copyright subsists is made by an employee in the course of his employment, the copyright is automatically assigned to the employer.

Copyrights are generally enforced by the owner in a civil law court, but there are also criminal infringement statutes. Criminal sanctions are generally aimed at serious counterfeiting activity.

How copyrighted material is identified

In general when a piece of material such as a film (including DVDs and Videos) and/or music is registered with the appropriate country's copyright office, the material at the beginning or end may contain a copyright notice which can be a c inside a circle ©, or the word "copyright", followed by the year(s) of the copyright and the copyright owner's name. However, such notice is not required in nations that have acceded to the Berne Convention. In one way or another, under nearly any copyright regime, a work is generally protected by copyright from the moment of its creation (in the United States the usual phrase is "fixed in a tangible medium of expression") whether it displays a notice or not.

Year(s) of copyright

The year(s) of copyright are listed after the © symbol. If the work has been modified (ie. a new edition) and recopyrighted there will be more than one year listed.

All rights reserved

The phrase, All rights reserved, is a formal notice that all rights granted under existing copyright law are retained by the copyright holder and that legal action may be taken against copyright infringement.

Copyrighting fonts

In the United States, font design is not copyrightable, but it is patentable if novel enough. Stone and Lucida are the only two patented typefaces, and this may not hold up in court.

Europe used to have the same "can't copyright typefaces" laws as the United States, but Germany (in 1981) and the UK (in 1989) have passed laws making typeface designs copyrightable. The UK law is even retroactive, so designs produced before 1989 are also copyrighted, if the copyrights wouldn't have already expired (the German one is not retroactive).

Rights beyond copyright

Many European countries (and other countries as a result of the GATT Trade Related Intellectual Property or "TRIPs" agreement) further provide for moral rights in addition to copyrights possessed by authors, such as the right to have their work acknowledged and not be disparaged. (Famously, the Monty Python team managed to use these rights to stop the Monty Python TV programme being shown in the US because the US TV station was putting so many adverts into the program the Monty Python team claimed that it was being ruined as a serious comedy programme.)

While copyright is normally assigned or licensed to the publisher, authors generally retain their moral rights (although in some jurisdictions these can be excluded under contract). In most of Europe it is not possible for authors to assign their moral rights (unlike the copyright itself, which is regarded as an item of property which can be sold, licensed, lent, mortgaged or given like any other property). They can agree not to enforce them (and such terms are very common in contracts in Europe). There may also be a requirement for the author to 'assert' these moral rights before they can be enforced. In many books, for example, this is done on a page near the beginning, in amongst the British Library/Library of Congress data.

Some European countries also provide for artist resale rights, which mean that artists are entitled to a portion of the appreciation of the value of their work each time it is sold. These rights are granted on the background of a different tradition, which granted droits d'auteur rather than copyright also granting all creators various moral rights beyond the economic rights recognized in most copyright jurisdictions. (see also parallel importation.)

History of copyright

Main article: History of copyright

While governments had previously granted monopoly rights to publishers to sell printed works, the modern concept of copyright originated in 1710 with the British Statute of Anne. This statute first recognized that authors, rather than publishers, should be the primary beneficiary of such laws, and it included protections for consumers of printed work ensuring that publishers could not control their use after sale. It also limited the duration of such exclusive rights to 28 years, after which all works would pass into the public domain.

The Berne Convention of 1886 first established the recognition of copyrights between sovereign nations. (Copyrights were also provided by the Universal Copyright Convention of 1952, but that convention is today largely of historical interest.) Under the Berne convention, copyright is granted automatically to creative works; an author does not have to "register" or "apply for" a copyright. As soon as the work is "fixed", that is, written or recorded on some physical medium, its author is automatically granted all exclusive rights to the work and any derivative works unless and until the author explicitly disclaims them, or until the copyright expires.

Critique of copyright

Critiques of copyright fall broadly into two camps, those who assert that the very concept of copyright has never been of net benefit to society, and has always served simply to enrich a few at the expense of creativity, and those who feel that the current copyright system doesn't work in the new Information society. The general problem is that the current (international) copyright system undermines its own goal (Boyle 1996, 142). The concept of public domain, needed as a pool for future creators, is far too often forgotten or repressed, due to the strong position of the concept of the romantic author, and selective blindness for the possibilities concerning copyright that the Internet and computers offer. Except for unlimited copying, it offers, as said, also new ways for marketing and, more important, the possibilities of code; much depends of course on how code is used (code can be used and is in most of the cases also used in a positive way), but in various cases it threatens not only the public domain in a serious way, but is also ignored when talking about "restoring the balance" which is said to be gravely disturbed by the so called unlimited copying possibilities the Internet creates. [1]

Others believe that irrespective of contemporary advances in technology, copyright has been and remains the fundamental way by which authors, sculptors, artists, musicians and others can fund the creation of new works. This view espouses that copyright is the only reason some valuable books and art would be created.

In the US in 2003, controversial changes implemented by the Sonny Bono Copyright Term Extension Act extending the length of copyright under U.S. copyright law by 20 years were constitutionally challenged unsuccessfully in the Supreme Court. The Court, in the case called Eldred v. Ashcroft, held inter alia that in placing existing and future copyrights in parity in the CTEA, Congress acted within its authority and did not transgress constitutional limitations.

External links

A brief intro to copyright (by Brad Templeton, with more in-depth links)
10 Big Myths about copyright explained
Responses to the Copyright Crisis - what can be done?
Thomas Babbington Macaulay on copyright (1841)
The Free Expression Policy Project report on copyright
The differences between the length of copyright provided by different countries creates situations where it is legal to publish a work on the Web in one country (e.g., Bulgaria), but illegal to view that Web page in another country (e.g., the United States): http://onlinebooks.library.upenn.edu/nonus.html
The Origin of Two American Copyright Theories --A Case of the Reception of English Law -- , The Journal of Arts Management, Law and Society, Vol. 30, No. 3, (Fall 2000, [Heldref Publications ]) by Hideaki Shirata
Libraries in Today's Digital Age: The Copyright Controversy
Copyright Background on infoanarchy.org including links to many countries laws, and economics of copyright
MP3Board.com - News site which aggregates copyright news (and other IP news).
B. Gates Rants About Software Copyrights - in 1980