Copyright

 What is protected by copyright?

At this post I’m going through the United States’ copyright law. The U.S. Congress first implemented its power to enact copyright legislation at 1790. The Act secured an author the exclusive right to publish and vend “maps, charts and books” for a term of 14 years, with the right of renewal for one additional 14 year term if the author was still alive. The act did not regulate other kinds of writings and specifically noted that it did not prohibit copying the works of foreign authors. The vast majority of writings were never registered.

Copyright law has been changed so many times since to cover new technologies such as music recording, to enlarge the period of protection and so on.

U.S. courts have interpreted this clause of the Constitution to say that the ultimate purpose of copyrights is to encourage the production of creative works for the public benefit, and that therefore the interests of the public are primary over the interests of the author when the two conflict. These rulings have since been formalized into fair use laws and decisions. Certain attempts by copyright owners to restrict uses beyond the rights provided for by copyright law may also subject them to the copyright misuse doctrine, preventing enforcement against infringers. [1]

Copyright Act of 1790 in Colombian Centinel

The Copyright Act of 1790 in the Columbian Centinel

Copyright protects works such as movies, poetry, video games, CD-ROMs, videos, plays, paintings, sheet music, recorded music performances, novels,software code, sculptures, photographs, choreography and architectural designs. Key laws regulating U.S. copyrights and their key effects arranged in chronological order are as below:

  • Copyright Act of 1790 – established U.S. copyright with term of 14 years with 14-year renewal
  • Copyright Act of 1831 – extended the term to 28 years with 14-year renewal
  • Copyright Act of 1909 – extended term to 28 years with 28-year renewal
  • Universal Copyright Convention – ratified by the U.S. in 1954, and again in 1971, this treaty was developed by UNESCO as an alternative to the Berne Convention
  • Copyright Act of 1976 – extended term to either 75 years or life of author plus 50 years; extended federal copyright to unpublished works; preempted state copyright laws; codified much copyright doctrine that had originated in case law
  • Berne Convention Implementation Act of 1988 – established copyrights of U.S. works in Berne Convention countries
  • Copyright Renewal Act of 1992 – removed the requirement for renewal
  • Uruguay Round Agreements Act (URAA) of 1994 – restored U.S. copyright for certain foreign works
  • Copyright Term Extension Act of 1998 – extended terms to 95/120 years or life plus 70 years
  • Digital Millennium Copyright Act of 1998 – criminalized some cases of copyright infringement”[2]

To qualify for copyright protection, a work must be

1.    Fixed in a tangible medium of expression

2.    The work must be original

3.    The work must be the result of at least some creative effort on the part of its author.

Being fixed in a tangible medium of expression means that the work must exist in some physical form for at least some period of time, no matter how brief. Virtually any form of expression will qualify as a tangible medium, including a computer’s random access memory (RAM), the recording media that capture all radio and television broadcasts, and the untidy notes on an envelope that contain the basis for an unprepared speech.

In addition, the work must be original. That means it should be independently created by the author. It doesn’t matter if an author’s creation is similar to existing works, or even if it is arguably lacking in worth, ingenuity or artistic merit. So long as the author toils without copying from someone else, the results are protected by copyright.

Finally, a work must be the result of at least some creative effort on the part of its author. There is no without doubt rule as to how much creativity is enough.

Copyright does not cover the ideas or facts upon which the expression is based. For example, copyright may protect a specific song, narrative, or computer game about a romance in space, but it cannot protect the underlying idea of having a love affair among the stars. Allowing authors to monopolize their ideas would thwart the underlying purpose of copyright law, which is to encourage people to create new work.

Differences between economic and moral copyright

Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions.

They include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work bars the work from alteration, distortion, or mutilation. Anything else that may detract from the artist’s relationship with the work even after it leaves the artist’s possession or ownership may bring these moral rights into play.

Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work. (Wikipedia)

Moral rights were first recognized in some European countries, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928. Then Canada recognizes moral rights in its Copyright Act. While the United States became a participant to the convention in 1988, it still does not completely recognize moral rights as part of copyright law, but the United States finally in the Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, although applies only to works of visual art.

One exception from copyright

There are some limitations on exclusive rights such as fair use, Reproduction by libraries and archives, Effect of transfer of particular copy or phonorecord, Secondary transmissions, and Ephemeral recordings and etc.

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [2]

 

 REFERENCES

1.    U.S. Copyright Law analysis, Fact-index.com  http://www.fact-index.com/u/un/united_states_copyright_law.html

2.    U.S. Copyright Law, U.S. Copyright Office http://www.copyright.gov/laws/

3.    Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. pp. 142.ISBN 9780275988838.

4.    Irving, Shae and Kathleen Michon.  “Copyrights.”  Nolo’s Encyclopedia of Everyday, Law 3rd Edition (June 2001)

5.    Copyright and Fair Use, Stanford University,http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html

6.    Monty Python, v. American Broadcasting Companies, Inc., 538 F.2d 14 (2d Cir 1976)

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