About Copyright

Periodicals

Copyright

Not that long ago, all copying was done by hand. To copy a book one had to sit down with a quill, a pot of ink, and a lot paper or parchment and write out whole book by hand. The only people crazy enough to do this were monks or scribes who dedicated their lives to the effort. Needless to say, authors didn’t worry too much about people copying their books. 

The printing press changed this by allowing printers to mass produce books. It didn't take printers long to figure out that they could obtain a copy of a popular book, then print and sell copies of the book without paying the author or even putting the authors name on the book. This lead to some confusion and anger.

Statute of Anne

In 1709, the English parliament passed into law the Statute of Anne to help correct this problem.

The title of the act reads, "An act for the encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies, during the time therein mentioned." It goes on to state that the purpose of the law is, "for the Encouragement of Learned Men to Compose and Write useful Books," and that the author, “shall have the sole Liberty of Printing and Reprinting such Book and Books for the Term of fourteen [years]."

The statute was the first law to protect the rights of authors to their work. But it is important to understand that parliament saw the law as serving the greater public good: An act for the encouragement of learning.

Constitution of the United States

This idea carried over from England to her colonies. The drafters of the US Constitution, in Article 1, Section 8, Clause 8, granted congress the power:

“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.”

Like the Statute of Anne, the intent of copyright in the constitution is to promote a social good;

The progress of science and useful arts

It does so by protecting the rights of authors. This simple idea often gets lost in discussions of copyright.

US Federal Law

Copyright law in the US is contained in Title 17 of the Federal Code. It is often referred to as the Copyright Act of 1976, though it has been amended almost every year since. The law gives the author of a work these specific rights:

  • To reproduce the work in copies or phonorecords;
  • To prepare derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
  • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

All of these rights may be transferred. Authors sign contracts with publishers transferring the right to reproduce the work.

Only "original works of authorship fixed in any tangible medium of expression" may be copyrighted. Some examples of things that can be copyrighted include:

  • literary works
  • musical works, including any accompanying words
  • dramatic works, including any accompanying music
  • pantomimes and choreographic works
  • pictorial, graphic, and sculptural works
  • motion pictures and other audiovisual works
  • sound recordings
  • architectural works

Not all works fall under copyright. The law provides for several exceptions:

  • Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
  • Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
  • Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Some examples include:

  • Clothing designs
  • Jokes
  • Food recipes
  • Auto designs
  • Furniture designs
  • Magic tricks
  • Hairstyles
  • Tattoos
  • Fireworks
  • Game rules
  • Perfume smells

Note, an idea can not be copyrighted. Anyone can take an idea and use it, copy it, or distribute it. However, once an idea is fixed in a tangible medium (written on paper, recorded on a CD, captured in a photograph) then that expression of the idea is copyrighted.

For example, you compose a song in your head and play it for friends. They like it and you start playing it at parties. It becomes so popular that people ask you to play the song at clubs. Hundreds of people have now heard your song. But, you still don't have copyright ownership of your song. Only when you write down the lyrics and notes to the song will you have ownership. If you record yourself singing the song and post it on Youtube, you only have copyrights to that particular recording of the song.

Duration of copyright

The duration of copyright has changed since the Statute of Anne limited it to 14 years.

  • Works published between 1923 and 1978 are under copyright for 95 years.
  • Works published after 1978 are under copyright for the life of creator +70 years
  • Works with corporate authors (for example, a film production like Disney) are under copyright for 95 years after publication or 120 years post creation if not published

Copyright registration

Before 1989 a work had to be registered with the Library of Congress to be copyrighted in the USA. The Berne Convention of 1989 changed this so that every work is copyrighted as soon as it is created. An author can still register a work with the Library of Congress but it is no longer necessary.

Public Domain

The Public Domain consists of all those works whose terms have expired, those works created by public agencies (Federal and State government), or whose authors have voluntarily given up their copyrights. These works can be used and copied by anyone without restriction. So if you wish to make a movie based on Alice's Adventures in Wonderland, first published in 1865, you are free to do so.

Orphan Works

An orphan work is a copyrighted work for which the copyright owner cannot be contacted. An estimated 50% of books published after 1923 are orphans. These works are more important than they may initially seem. Documentary filmmakers in particular face great difficulties in locating the owners of pictures and recordings they would like to include in their films.

Legal limitations on the exclusive rights of copyright holders

Remembering the purpose of copyright, "To promote the Progress of Science and useful Arts", Congress has written exceptions to copyright into the law. Several of these exceptions explicitly address the actions of teachers and students.

Fair Use

The most common exception to copyright is the Fair Use exception. It lists four very broad tests to determine if a use of a work constitutes Fair Use. Those tests are:

  1. The purpose and character of the use, including whether such use is of 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
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

When determining if a use constitutes Fair Use all four factors must be considered. And every use must be considered independently.

Fair Use allows for things like satire and parody, book and movie reviews, quoting passages in an essay or criticism, news reporting, and some educational activities.

Other Exceptions

The law also provides for several other exceptions.

The First Sale exception allows you to sell a copy of a copyrighted work that you have legally obtained. So if you buy a game for your Xbox then sell it back to GameStop, you are exercising your First Sale exception. The First Sale exception also covers lending items, making the library and Netflix possible.

The law allows libraries and archives to make back-up copies of items and to make copies of items for their patrons. When you copy pages from a textbook at the library you are exercising this exception. The law also allows you to make back-up copies of items you have legally obtained. Ripping a song from a CD you own to your Ipod does not violate copyright.

Finally, the law allows the performance of copyrighted works in a classroom setting. It's OK if your instructor shows The Dark Knight in class. But you would need to gain permission to show Iron Man at a club fundraiser.

Open Access

Since authors can transfer their copyrights, many choose to relinquish some of their rights right up front. Most often authors will allow the copying and redistribution of their work for non-commercial purposes (no reselling) as long as the work is unmodified and the author receives attribution. You may also see this concept referred to as open source or creative commons.

Open source generally refers to software that is free to copy and modify. This allows the entire user community to contribute to improving an application. Probably the most famous example is the Linux operating system.