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Copyright
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Copyright

A copyright is a form of intellectual property that grants its holder the legal right to restrict the copying and use of an original, creative expression, such as a literary work, movie, musical work or sound recording, painting, computer program, or industrial design. The rights enforceable under copyright protection cover the use only of intangible creations—the story told within a book is protected from misuse as opposed to the printed copy itself, or the form of a sculpture as opposed to the actual carved rock. Copyrights do not protect ideas, however, which are the domain of patents (if at all), but only the particular expression of an idea. A copyright on the cartoon character Mickey Mouse, for example, would not prevent others from creating talking mice, but only from too closely copying the character and traits of that talking mouse in particular.

Copyrights function similarly to patents, in that both grant exclusive rights over their respective subject matter that are enforceable against everyone (with some exceptions, discussed below). This is in contrast to trademark protection, which is almost always only enforceable against competitors in the same product market, and only against certain limited commercial uses. Also in contrast to trademarks, copyright (and patent) protection is set for a limited, statutorily-defined number of years, during which the copyright owner does not actually have to make use of his work in order to keep others from doing so. After the term is up, the copyrighted work enters the public domain and is available for anyone to freely use.

Table of contents
1 Background
2 Statutory and compulsory licenses
3 How copyrights are obtained and enforced
4 Copyright notices
5 Rights beyond copyright
6 History of copyright
7 Critique of copyright
8 Unusual copyright grants
9 Related topics
10 See also
11 Further reading
12 External links

Background

Rights of copyright holder

A copyright holder typically has exclusive rights:

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.

United States Constitution, Article I, Section 8, Clause 8: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" Copyright is this protection of "Progress of Science" (patents cover the "useful Arts").

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 musician who records an album will sign an agreement with a record company in which the musician agrees to transfer all copyrights in the recordings to the company 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 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 the 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 a library, a reader can freely use that method without being sued and can 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.

The first sale doctrine

Main article: First sale doctrine

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 United States this is known as the first sale doctrine, and was established in the U.S. 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 doctrine, codified as 17 U.S.C. Section 107, allows copying and distribution. The statute does not clearly define fair use, but rather gives four non-exclusive factors to consider in a fair use analysis.

Statutory and compulsory licenses

Some jurisdictions may provide that certain classes of copyrighted works (for example, musical works in the United States) are available under a statutory license. 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 owner, but instead merely files the proper notice and pays a set fee established by statute (or by agency decision under statutory guidance) for every copy made. Failure to follow the proper procedures would then result in the copyist being vulnerable to an infringement suit. Because of the difficulty of following this process for every individual work, copyright collectives and performing rights organisations (such as ASCAP or BMI) have been formed to sell the rights to hundreds of works at once. Though this market solution bypasses the statutory license, the availability of the statutory fee still helps dictate the price per work that collective rights organizations charge, driving it down to what the avoidance of procedural hassle would justify.

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 that 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.

Copyright notices

In general when a work such as a book or movie 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. This functions to inform any potential users that the work is protected from copying. Notice is not required for the work to be legally protected in nations that have acceded to the Berne Convention, which did away with such formalities. Under nearly any modern copyright régime, a work is generally protected by copyright from the moment of its creation whether it displays a notice or not. However, the presence of a notice may make it easier to claim certain damages in infringement lawsuits, because of the presumption notice may bring that a defendant's infringement was intentional.

The symbol, ©, is Unicode symbol 00A9 in hexadecimal, and can be entered into (X)HTML as © or ©.

Year(s) of copyright

The year(s) of copyright are listed after the © symbol. If the work has been modified (i.e., 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. Two countries require this text for a copyright notice to be valid, so it is normal to see it even when a work is in fact being made available for copying.

Copyrighting fonts

In the United States, typeface designs are not copyrightable, but may be patentable if novel enough.

In Europe, 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 comedy troupe managed to use these rights to sue American TV network ABC for airing re-edited versions of Monty Python's Flying Circus.)

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 as a whole fall broadly into two camps, asserting 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, or asserting 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 gradually being eroded, as copyright terms are extended to last beyond the lifetime of the audience which experienced and knows of the original work.

Other copyright scholars believe that irrespective of contemporary advances in technology, copyright remains the fundamental way by which authors, sculptors, artists, musicians and others can fund the creation of new works, and that absent legal protection, many valuable books and art would not be created. This interest is arguably served even by repeated extension of copyright terms to encompass multiple generations beyond the author's life, not only because many "authors" and copyright holders are corporations, but also because the ability of an author's heirs to continue to profit from a protected work may provide a substantial part of the incentive to create.

The ease of copying digital materials and the apparent lack of severe consequences for either the producers or the reusers, has been gradually eroding the belief that copyright as presently constructed is indispensable. It can be argued that, rather than criminalise the many millions of file sharers around the world who now routinely use the internet to breach copyright (because copyright laws have proven unenforcible), copyright holders use the legal system to apply extortion by charging for products that are readily available for free. Bill Gates is on record as saying that there is no way technically of preventing copyrighted digital material being replicated, so it is likely in future that attempts to protect copyrighted works will become uneconomic, as well as unpopular politically. Open source software and projects like Wikipedia have demonstrated that even in the absence of copyright-enforced monopoly rents, quality works can be created. Some online authors, such as Cory Doctorow, retain the copyright to their work but license it for free distribution (for example under a Creative Commons License). This has the benefit of allowing the author to loosen some of the restrictions that copyright imposes while retaining control over other aspects of the work.

Copyright can also be used to stiffle political criticism. For example, in the US the contents of talk shows and similar programs are protected by copyright. Robert Greenwald, a director of Uncovered: The Whole Truth About the Iraq War documentary was refused the right to use a clip of the G. Bush's interview from NBC's Meet the Press. Although the fair use provisions may apply in such cases, the risks and the pressure from insurance companies usually prevents the use of materials without permission.

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.

Unusual copyright grants

On rare occasions, rights can be granted outside of usual legislation. When the current UK copyright legislation was debated in parliament, former Prime Minister Lord Callaghan successfully proposed an amendment allowing the Great Ormond Street Hospital for Sick Children to retain indefinitely the rights to payments of royalties for performances of Peter Pan. This allowance can be seen explicitly written into Schedule 6 of the Act.

Related topics

National copyright laws

International treaties concerning copyright

Advocates of copyright law reform

See also

Further reading

External links