23.7: Copyright
The final form of intellectual property protection is copyright. A copyright is a property interest in an original work of authorship (such as literary, musical, artistic, photographic, or film work) fixed in any durable medium of expression. The owner of a copyright has the exclusive right to reproduce, adapt, distribute, perform, and display the work. The durable medium requirement exists because otherwise it would be impossible to prove who is the original author of a work. Ideas, by themselves, cannot be copyrighted.
Like patents and trademarks, federal law protects copyrights. Copyright is designed to protect creativity. It is one of the two types of IP specifically mentioned in the Copyright Clause of the US Constitution. Copyright extends to any form of creative expression, including digital forms.
Because computer software is a compilation of binary code expressed in 1 and 0, software can be copyrighted. Similarly, if a group of students were given a camera and asked to photograph the same subject, each student would frame the subject differently, which is an expression of their creativity.
A copyrighted work is automatically protected upon its creation. Unlike patents and trademarks, which must go through an expensive and rigorous application process, authors do not need to send their work to the government for approval. In 1989, the United States signed the Berne Convention, which is an international copyright treaty. This treaty eliminated the need to write “Copyright” or place a © symbol on the work itself to receive legal protection. Copyrights may be registered with the US Copyright Office, if the author chooses.
Copyright protection lasts for seventy years after the death of the author. If there is more than one author, the copyright expires seventy years after the death of the last surviving author. If a company, such as a publisher, owns a copyrighted work, the copyright expires ninety-five years from the date of publication, or one hundred twenty years from the date of creation, whichever comes first. After the copyright expires, the work falls into the public domain. The works of Shakespeare and Beethoven are in the public domain, and may be freely recorded or modified without permission.
The copyright owner may allow the public to view or use a copyrighted work for free or for a fee. This use is contained in a copyright license. A license is essentially permission from the copyright holder to use the copyrighted material, within the terms of the license. When purchasing a book, MP3 or DVD, for example, the copyright license allows the purchaser to read the book, listen to the music, and view the movie in private. The license does not allow the purchaser to show the movie to a broad audience, to modify the music, or to photocopy the book to give away or sell. These rights of reproduction, exhibition, and sale are not part of a license. The purchaser does have the right of first sale. This means that the owner of the physical work can do with it as he or she pleases, including resell the original work.
There are common licenses that authors can easily refer to if they wish to distribute their work easily. The General Public License (GPL) for software and Creative Commons (CC) license for text and media are well-known examples.
Licenses in the digital arena can be very restrictive. Copyright holders may use schemes such as Digital Rights Management (DRM) to limit ownership rights in digital media. DRM limits the number of copies and devices a digital file can be transferred to, and in some cases even permits the copyright holder to delete the purchased work.
Copyright infringement occurs when someone uses a copyrighted work without permission or violates the terms of a license. Copyright infringement is common when someone takes someone else’s work and simply repackages it as their own. For example, J. K. Rowling’s Harry Potter series created an international following, and many fans gather online to discuss her books. One website, called the Harry Potter Lexicon, served as an encyclopedia to the Harry Potter world, with reference notes on characters, places, spells, and other details. When the site announced plans to publish the contents of the Lexicon in a book format, J. K. Rowling successfully sued, claiming copyright infringement.
Copyright infringement also may be indirect, such as helping others violate a copyright. Websites such as Napster and Grokster, which existed solely for the purpose of facilitating illegal downloading of music, were copyright infringers even though the websites themselves did not directly violate any copyrights. The music recording industry pursues these cases aggressively.
Copyright law makes a distinction between “fair” and “infringing” use. Fair use includes copying a work for purposes of commentary, criticism, news reporting, teaching, or research. Just because a work is used in a news article or in a classroom, however, does not make its use fair.
| Factors to determine Fair Use of Copyrighted Materials: |
1. The purpose and character of the use
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2. The nature of the copyrighted work
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3. The amount and substance of the portion used
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4. The effect of the use on the potential market for the copyrighted work
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In an attempt to tackle the problem of copyright infringement on the Internet, Congress passed the Digital Millennium Copyright Act (DCMA) in 1998. One portion of the law helps Internet service providers by expressly stating that those providers cannot be sued for copyright infringement if others use their networks for infringing uses. Another portion of the law helps websites by stating that if a user uploads infringing material and the website complies with a copyright holder’s request to remove the material, the website is not liable for infringement. For example, if an individual uploads a portion of a copyrighted song, movie, or television show to YouTube, YouTube may remove the clip at the request of the copyright holder. Finally, the DMCA makes it illegal to attempt to disable a copy protection device, such as DVD and Blu-ray Discs. Anyone who writes software that disables a copy protection device violates the DMCA.