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Copyright

COPYRIGHT

A bundle of intangible rights granted by statute to the author or originator of certain literary or artistic productions, whereby, for a limited period, the exclusive privilege is given to that person (or to any party to whom he or she transfers ownership) to make copies of the same for publication and sale.

A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called infringement.

Copyright is distinct from other forms of creator protection such as patents, which give inventors exclusive rights over use of their inventions, and trademarks, which are legally protected words or symbols or certain other distinguishing features that represent products or services. Similarly, whereas a patent protects the application of an idea, and a trademark protects a device that indicates the provider of particular services or goods, copyright protects the expression of an idea. Whereas the operative notion in patents is novelty, so that a patent represents some invention that is new and has never been made before, the basic concept behind copyright is originality, so that a copyright represents something that has originated from a particular author and not from another. Copyrights, patents, and trademarks are all examples of what is known in the law as intellectual property.

As the media on which artistic and intellectual works are recorded have changed with time, copyright protection has been extended from the printing of text to many other means of recording original expressions. Besides books, stories, periodicals, poems, and other printed literary works, copyright may protect computer programs; musical compositions; song lyrics; dramas; dramatico-musical compositions; pictorial, graphic, and sculptural works; architectural works; written directions for pantomimes and choreographic works; motion pictures and other audiovisual works; and sound recordings.

History of Copyright Law

U.S. copyright law grew out of English common law and statutory law. When the printing press was developed in the fifteenth century, rights for the reproduction of written works extended to printers rather than to authors. In England, a printers' guild, the Stationers' Company, claimed for itself the exclusive right—in effect, a monopoly—on written works. It was not until 1710 that Parliament passed a statute relating to copyright. That law, called the Statute of Anne, established authors' rights to control the reproduction of their work after it was published. It also created a term of protection of 28 years from the date of publication. After that time, an author's work entered the public domain, meaning that anyone could print or distribute it without obtaining the author's permission or paying a royalty, or fee, to the author. Other European countries developed similar laws in the late eighteenth and early nineteenth centuries.

Under the British system, the author retained a common-law right to ownership of his or her work until publication. After publication, copyright was established as a statutory right, protected by the Statute of Anne. U.S. copyright law retained this distinction between prepublication common-law rights and post-publication statutory rights, until 1976.

By the late eighteenth century, the protection of intellectual property as a means of advancing the public interest was considered important enough to receive mention in the U.S. Constitution. The Patent and Copyright Clause—Article I, Section 8, Clause 8—of the U.S. Constitution empowers Congress "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." Congress passed its first copyright statute in 1790—and has substantially revised copyright law four times, in 1831, 1870, 1909, and 1976.

Revisions in the copyright law have been driven largely by commercially significant changes in technology. In 1802, for example, graphic prints came under copyright protection, establishing the notion that the Constitution's

language regarding copyright not be interpreted to apply literally to "Writings" alone. In 1831, musical compositions were incorporated into copyright protection, and in 1870, paintings, statues, and other works of fine art were placed under copyright protection.

The distinction between common-law protection for unpublished works and statutory protection of published works received increasing criticism in the twentieth century, particularly as the notion of publication changed greatly with technological innovations in communication. Congress removed this distinction in the landmark Copyright Act of 1976 (17 U.S.C.A. § 102(a)). According to this statute, an author receives copyright protection as soon as a work is recorded in a concrete way—when, for example, it is written on a piece of paper, recorded on an audiotape, or stored on a computer disk. Any unauthorized copying of the work is subject to an infringement suit and criminal charges. The 1976 act also allows copyright protection of works that derive from the original, such as motion pictures, CD-ROM multimedia editions, and other adaptations. These subsequent creations are known as derivative works.

Copyright Law in Action: Basic Books v. Kinko's Graphics Corp.

Copyright cases typically involve disputes between competing private interests: an author against someone who has copied the author's work without permission. However, the outcome of such cases often has significant repercussions for the general public as well. One such case with significant public effect was Basic Books v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991), which dealt with the question of whether photocopy stores may sell copied excerpts of books to college students without authorization from the books' publishers. The decision in the case ultimately affected the price that the public must pay for access to copyrighted information.

Many college and university students purchase photocopied materials from copy stores in association with courses they are taking. Usually consisting of chapters or sections taken from different books or journals, these photocopied materials enable students to read from a wide variety of sources without having to purchase a large number of books. By the late 1980s, book publishers realized they were losing sales owing to such photocopying. As a result, several publishers, including Basic Books, Inc., filed a lawsuit in federal court against one of the largest photocopy firms in the United States—Kinko's Graphics Corporation, a company that in 1989 had more than two hundred locations and annual sales of $54 million.

At issue in the case was the question of who may profit from the reproduction of an author's work, particularly with regard to the practice that Kinko's called anthologizing, which is the copying of book excerpts into course "packets" sold to college students. The publishers, the plaintiffs in the case, maintained that Kinko's violated the Copyright Act of 1976 (17 U.S.C.A. § 101 et seq.), by failing to secure permission to reprint the excerpts included in course packets and, in turn, pay the necessary fees involved, part of which would be passed on to the authors of the books. Kinko's claimed that its sale of the excerpts was an example of the kind of fair use that is allowed by the Copyright Act.

Citing the commercial interests involved—namely, the fact that Kinko's made a significant amount of money from the sale of course packets, and that packet sales competed with book sales—the court found that Kinko's was guilty of copyright infringement. It ordered the company to pay $500,000 in damages to the publishers and issued an order forbidding it to prepare anthologies without securing permission from and prepaying fees to the appropriate publishers.

Basic Books was a victory for the publishers and authors of books that are excerpted for course anthologies. As for Kinko's, it now has to pay fees to publishers, but it is able to pass on those costs to customers in the form of higher prices. Does this mean that students are the losers in this case? In the short run, yes, because they will pay more for their course materials. But in the long run, students and the rest of society may derive more benefit, even if it is indirect, from a system that rewards authors for their intellectual labor.

Many features of the 1976 act make U.S. copyright law conform more to international copyright standards, particularly with regard to the duration of copyright protection and to the formalities of copyright deposit, registration, and notice. These changes have been greatly influenced by the most important international copyright treaty, the Berne Convention for the Protection of Literary and Artistic Works (828 U.N.T.S. 221, S. Treaty Doc. No. 99-27). In 1988, the United States passed the Berne Convention Implementation Act (102 Stat. 2853), which made the nation an official member of the treaty as of 1989. Section 2(a) of this act holds that provisions of the treaty are not legally binding in the United States without domestic legislation that specifically implements them.

U.S. copyright law has continued to evolve toward greater conformity with international copyright standards. In the 1990s, for example, the Berne Convention added 20 years to the minimum standard for copyright duration, changing it to the length of the author's life plus 70 years. U.S. copyright law followed suit in 1998, with the passage of the Sonny Bono Copyright Term Extension Act.

Copyrightable Works

The 1976 Copyright Act provides that copyright protection "subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed" (17 U.S.C.A. § 102(a)). Thus, virtually any form of fixed recording is protected, no matter how new the technology.

Originality is the most important quality needed by a work in order for it to receive copyright protection. Originality is not dependent on the work's meeting any standard of aesthetic or artistic quality. Thus, a work need not be fine art to be copyrightable.

Works That Are Not Copyrightable

Copyright protects the expression of an idea or vision, not the idea itself. In legal terminology, this concept is called the idea-expression dichotomy, and it has been an important feature of legal reasoning related to copyright. Ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries are not within the scope of copyright protection. Other works that are not copyrightable are words and short phrases, including slogans; blank forms for recording information (such as bank checks); and works containing no original authorship (such as standard calendars or simple phone listings).

Some works are not copyrightable because they are not fixed in a tangible medium. These include unrecorded dance choreography, and unrecorded speeches, lectures, and other vocal performances. Although typefaces are tangible, they traditionally have been regarded as lying outside of copyright protection. A dramatic character is not copyrightable.

Holders of a Copyright

A copyright is initially owned by the author or authors of the work, except in the case of a "work for hire." A work for hire can arise in two situations: (1) where an employee creates a work within the scope of his or her employment, in which case the employer owns the copyright to the work upon its creation; (2) where two parties enter a written agreement designating the creation as a work for hire and the work falls within one of nine specific categories of work designated by copyright law. If the work does not fit one of the specified categories, it will not be a work for hire even if the parties have called it one. In such a case, the author or authors retain the copyright, and transfer must be accomplished through a written assignment of copyright. Where there is a valid work for hire, the employer who owns the copyright has the same rights as any copyright holder, including the right to initiate an action for copyright infringement.

The ownership of a copyright, or the ownership of any of the five exclusive rights afforded by a copyright (discussed later in this article), can be transferred to another and is regarded as personal property upon the death of the copyright holder. Copyright ownership and ownership of the material object in which the copyrighted work is embodied are two entirely separate legal entities. Furthermore, transfer of an object and transfer of the copyright to that object are separate, independent transactions, neither of which, by itself, has any effect on the other. Therefore, transfer of a material object, such as an original manuscript, photograph negative, or master tape recording, does not transfer the copyright to that work. Likewise, transfer of the copyright to a work does not require transfer of the original copy of the work.

Exclusive Rights

Copyright affords an author a number of exclusive rights: (1) the exclusive right to reproduce, or copy, the work; (2) the exclusive right to prepare new works that derive from the copyrighted work; (3) the exclusive right to distribute the work to the public by sale or other arrangement; (4) the exclusive right to perform the work publicly; and (5) the exclusive right to display the work publicly. The first two rights, involving reproduction and derivation, are infringed whether violated in public or in private, or whether violated for profit or not. The last three rights are infringed only when violated publicly, that is, before a "substantial number of persons" outside of family and friends (17 U.S.C.A. § 101).

All of the exclusive rights afforded by copyright may have significant economic value. For example, derivative works, which may include translations, dramatizations, films, recordings, and abridgments, can offer substantial rewards to the author. An author may sell, license, or transfer one or all of the exclusive rights.

Duration of Ownership

Under the original provisions of the Copyright Act of 1976, copyright protection of an authored work extended through the life of the author and to fifty years after the author's death. However, in a major piece of legislation, Congress extended copyright terms in 1998 in the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (17 U.S.C.A. §§ 101 et seq.). Title I defines the terms of the copyright extension, while Title II provides a "music licensing exemption for food service or drinking establishments." This portion of the law is also known as the Fairness in Music Licensing Act of 1998.

The duration of copyright law under the 1998 act was extended for all copyrighted materials. Works created on January 1, 1978, or after are protected from the time the work was "fixed in a tangible medium of expression." The term is for life of the creator plus 70 years. If the creator is a corporation, then the term is 95 years from publication or 120 years from the date of creation, whichever is shorter.

Works published between 1923 and 1963 are protected, if they were published with notice, for 28 years and can be renewed for 67 years. If not renewed, they will fall into the public domain. Materials that were published during this period without notice entered the public domain upon publication.

Items published between 1964 and 1977 are protected if they were published with notice. They are protected for 28 years, and the copyright has been automatically extended for 67 years. Works created before January 1, 1978, but not published, are protected for the life of the creator plus 70 years or until December 31, 2002, whichever is later. Materials created before January 1, 1978, but published between then and December 31, 2002, are protected for the life of the creator plus 70 years or until December 31, 2002, whichever is later.

Libraries, archives, museums, and scholars expressed concerns about the 20-year extension. Items created in 1923 would have passed into the public domain on January 1, 1999, if the law had not been changed. At the beginning of 2000, works created in 1924 would have fallen under the public domain. The act's opponents argued that original scholarly research would be hampered by the extension.

In answer to those concerns, a special clause was included in the Copyright Term Extension Act for libraries, archives, and nonprofit educational institutions. Such institutions are permitted to "reproduce, distribute, display, or perform in facsimile or digital form" a copy of any copyrighted, published work during the last 20 years of its term "for purposes of preservation, scholarship, or research." However, the work must not be used in such a manner if it "can be obtained at a reasonable price."

The changes in the duration of copyrights were made partly to keep pace with the evolution of European copyright laws. In 1995, Europe extended its copyright protection to life of the creator plus 70 years, but in the United States it remained the life of the creator plus 50 years.

Copyright Infringement

Copyright infringement involves any violation of the exclusive rights of the copyright owner. It may be unintentional or intentional. When unintentional, it is called innocent infringement. An example of innocent infringement occurred when former Beatle George Harrison created his song "My Sweet Lord." Harrison was found to have unconsciously copied the tune of another song, "He's So Fine," by the Chiffons, and thus was liable for infringement (Bright Tunes Music Corp. v. Harrisongs Music, 420 F. Supp. 177 [S.D.N.Y. 1976]). Vicarious or related infringement refers to those who profit indirectly from the infringement of copyright, as in the case of a theater owner who profits from booking a band that illegally performs copyrighted works.

Since evidence of direct copying or plagiarism of an authored work is difficult to obtain, infringement of copyright is usually established through circumstantial evidence. Such evidence typically must show a substantial similarity between the original and the copy, as well as prove that the copier had access to the original. This means that where two works are similar or identical, there is nevertheless no infringement if each work was produced through the original and independent work of its creator. An infringer is not relieved of liability by crediting the source or the creator of the infringed work. Although infringement does not require that

even a large portion of the work be similar, it does require that a substantial part be similar. It is irrelevant if the copied work is an improvement of the original work.

The Copyright Act of 1976 recognizes a copyright not only in a publisher's collective work, but also a separate copyright for each author's contribution to the work. With the growth in the use of electronic databases and disk to store data, some freelance authors began to object to their articles being sold to companies that produced these databases and disks. The Supreme Court, in New York Times v. Tasini, 533 U.S. 483, 121 S. Ct. 2381, 150 L. Ed. 2d 500 (2001), held that the Act protects the copyrights of the writers, rejecting an argument by the publishers that the conversion of the original works to an electronic format constituted a "revision" of the collective work, which would have been permissible under the Copyright Act.

Remedies for Infringement

Because the owner loses the value of a copyright when infringement occurs, relief is often sought through filing a lawsuit in federal court. If infringement is established, the court can grant preliminary and permanent injunctions, or court orders that restrain the offending party from continuing to infringe the copyright. A court may also award monetary damages as a remedy for copyright infringement. The copyright owner can recover for actual financial losses and any additional profits that the infringer earned from the infringement.

The copyright owner may instead choose to receive statutory damages, which range from a minimum of $250 to a maximum of $10,000. The court may adjust these limits based on the innocence or willfulness of the infringer. Innocent infringers may prove their good faith and may have damages reduced to as little as $100, whereas willful infringers may be punished by the court with damages as high as $50,000. Courts may also impound and even destroy illicit reproductions of copyrighted works.

Willful copyright infringement can be a federal misdemeanor, punishable by as much as $10,000 or one year's imprisonment. Criminal prosecutions on this basis require that infringement be for the "purposes of commercial advantage or private financial gain"(17 U.S.C.A. § 506(a)). Criminal prosecutions for copyright infringement are generally rare. Nevertheless, piracy of music and motion picture recordings—in which criminals mass-produce such recordings without permission and without paying royalties—has become increasingly common. This fact led to the passage of the Piracy and Counterfeiting Amendments Act of 1982 (18 U.S.C.A. § 2318), which allows punishment of up to $250,000 in fines or five years in prison for pirating 1,000 phonorecords or 65 films within 180 days. The fraudulent use or removal of copyright notices is also a punishable offense.

Fair Use

Fair use is a judicial doctrine that refers to a use of copyrighted material that does not infringe or violate the exclusive rights of the copyright holder. Fair use is an important and well established limitation on the exclusive right of copyright owners. Examples of fair use include the making of braille copies or audio recordings of books for use by blind people, and the making of video recordings of broadcast television programs or films by individuals for certain private, noncommercial use.

Examples of fair use typically involve, according to the Copyright Act of 1976, the reproduction of authored works for the purpose of "criticism, comment, news reporting, teaching …, scholarship, or research" (17 U.S.C.A. § 107). The same act also establishes a four-part test to determine fair use according to the following factors: (1) the purpose and character of the use, including whether such use is of a 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; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work (17 U.S.C.A. § 107).

It is usually considered fair use of an authored work to take small quotations or excerpts and to include them in another work, as when quotations are taken from a book and inserted into a book review. However, courts have found that such quotation is not fair use when material is taken from unpublished sources, as happened in the 1985 case Harper & Row v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218, 85 L. Ed. 2d 588.

The Harper case involved publication by The Nation magazine of quotations from Gerald R. Ford's unpublished memoir, A Time to Heal. Harper & Row, publisher of the memoir, suedThe Nation, claiming that the magazine's actions had caused it to lose a lucrative contract with Time Magazine to publish excerpts from the memoir. The Court ruled in favor of Harper, citing the economic value of first publication to the copyright holder as an important factor in its decision. It found that The Nation had infringed Ford's copyright by becoming the first publisher of his original expression, thereby inflicting economic losses on Ford. It rejected The Nation's argument that it was simply reporting news. Lower courts have subsequently applied the Court's reasoning to other cases involving quotations from unpublished works. In Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987), a federal appeals court blocked publication of a book that used extensive quotations from unpublished letters of the author J. D. Salinger. The court ruled that the author retained copyright ownership of the "expressive content" of the letters, even when the letters themselves were deposited in university library collections.

parody often constitutes fair use of copyrighted material. In cases involving parodies of copyrighted works, courts typically assess the purpose and intent involved in taking material from the original expression, and whether or not the author of the parody has borrowed a reasonable amount of material in producing the parody. For example, in the 1994 case of Campbell v. Acuff-Rose Music, 501 U.S. 569, 114 S. Ct. 1164, 127 L. Ed. 2d 500—which involved a parody by the rap group 2 Live Crew of the Roy Orbison song "Pretty Woman"—the U.S. Supreme Court ruled that a parody could be fair use under copyright law even if it is created for commercial purposes.

Copyright Registration, Deposit, and Notice

Registration of copyright involves recording the existence of an authored work and the identity of its author with the U.S. Copyright Office, which is a part of the library of congress. Deposit involves placing the work in its recorded, physical form with the same office. Notice, or notification, involves placing on an authored work the © or the word Copyright or the abbreviation Copr., along with the year of first publication and the name of the owner of the copyright.

Many of the major copyright acts in U.S. history have required that works be registered and deposited with a U.S. district court or with the U.S. Copyright Office, in order to be legally enforceable. Over time, however, deposit, registration, and notice of copyright have increasingly become formalities. Under the Copyright Act of 1976, authors automatically receive federal copyright protection when they fix their work in a tangible medium. Even if a copyright is not registered and an authored work is not deposited, the author maintains exclusive rights to the work.

Nevertheless, registration and deposit may have significant legal consequences. Most importantly, owners of copyright cannot sue for copyright infringement until they have registered the copyright (17 U.S.C.A. § § 411, 412). Deposit is not a requirement for copyright protection, but federal law requires that two copies of a published work be deposited within three months of publication. Failure to deposit a copy after it has been demanded by the U.S. Copyright Office is an offense punishable by a fine. Registration of copyright requires the deposit of at least one copy of a work and two copies of a published work. The U.S. Copyright Office has the power to vary these requirements.

Copyright notice serves a number of functions. A lack of copyright notice has traditionally informed users that a particular work is in the public domain, whereas the presence of a notice has warned users that a work is copyrighted and identifies the date and year of the work. Despite these traditions, copyright notice is optional for works distributed after October 31, 1988. Under prior law, an omission of copyright notice resulted in a loss of copyright protection.

Digital Millennium Copyright Act

Copyright laws have had to evolve in order to protect the interests of owners of copyrights from infringement through transfer of digital copies of protected works. internet users may employ a myriad of methods to transmit digital files, and much of the information contained in these files consists of copyrighted works. Given the sheer number of Internet users—estimated by some at more than 500 million in 2002—and trillions of pages on the World Wide Web, protection of electronic publications and media is a global concern.

In 1998, then-President william jefferson clinton signed the Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860 (17 U.S.C.A. §§ 101 et seq.) into law following a 99-0 vote in the U.S. Senate. This legislation was the focus of intense lobbying efforts on the part of a wide range of interest groups. These groups included telecommunications companies and online service providers; consumer-electronics manufacturers, library, museum, and university groups; and the publishing, recording, film, and software industries. The primary goal of this legislation was to adapt U.S. copyright laws for the digital age.

Passage of the DMCA was also required for the United States to keep pace with changes in international copyright treaties. In December 1996, the World Intellectual Property Organization (WIPO), an agency of the united nations, negotiated the Copyright Treaty and the Performances and Phonograms Treaty at a meeting in Geneva, Switzerland. WIPO is responsible for the advancement and safeguarding of intellectual property throughout the world, and it has 170 member countries.

The treaties, ratified in 2002, provide increased protection for copyrighted materials in the digital world. By signing, each country agrees to put into place laws, based on their own legal system, in order to enforce the treaties. The DMCA serves that purpose for the United States.

The DMCA consists of five main sections: WIPO Treaties Implementation, Online Copyright Infringement Liability Limitation, Computer Maintenance or Repair Copyright Exemption, Miscellaneous Provisions, and Protection of Certain Original Designs. Title I, WIPO Treaties Implementation, contains an "anti-circumvention" provision, making it illegal to "manufacture, import, offer to the public, provide, or otherwise traffic any technology, product, service, device, component, or part thereof," for the primary purpose of "circumventing a technological measure that effectively controls access to" a copyrighted work. Thus, technologies that are designed to protect digital material are safeguarded.

Moreover, this provision makes the act of circumventing a "technological measure that effectively controls access to a work protected" by copyright illegal. Every three years, the librarian of Congress, the register of copyrights, and the assistant secretary for communications and information of the commerce department must determine whether people with legitimate noninfringing uses of copyrighted materials are being unfavorably affected by the law. The law does state that fair use is not affected, but this nevertheless has been a controversial provision. Libraries, museums, and scholars were concerned about digital materials only being available on a pay-per-use basis. An exemption was included for nonprofit libraries, archives, and educational institutions allowing them to circumvent technical protection measures for the purpose of determining whether or not to purchase the copyrighted work.

Title I of the DMCA contains another addition to U.S. copyright law required by the WIPO treaties. This section prohibits the deletion or alteration of information associated with copyrighted material. Organizations will benefit from this provision because it will help protect information and images on their web sites. Furthermore, it prohibits the distribution of false copyright-management information. The DMCA provides for civil and criminal enforcement. However, archives, schools, nonprofit libraries, and public broadcasting stations are exempt from criminal prosecution.

The DCMA also limits the liability for copyright infringement by providing safe harbors for online service providers. The definition of an online service provider is generous. Other organizations may qualify for protection, which could be useful if they provide Internet access, have a company bulletin board or inhouse e-mail system, or chat rooms. Prior to the passage of the DMCA, online service providers could have been liable if infringing materials were posted on their sites, even if they were unaware of the problem. The DMCA explains the responsibilities of copyright owners and service providers. Under specific conditions, online service providers are exempt from having to pay monetary damages as long as they are not benefiting financially from infringing activity and as long as they remove the material promptly from the Internet.

Limitations have also been set on exclusive rights for computer programs. A provision allows users to copy programs that are needed in order to maintain and repair a machine. Any such copies must be destroyed as soon as the machine is repaired, however.

One significant exemption for libraries and archives was included in Title IV of the DMCA. Up to three copies may be made of a copyrighted work without the permission of the copyright owner for research use in other libraries or archives through interlibrary loan. The word "facsimile" has been struck from the former copyright law, thus allowing for digital formats. Libraries and archives can now loan digital copies of works to other libraries and archives by electronic means. Copies for preservation and security purposes are also permitted when the existing format in which the material is stored becomes outdated, or if the work is lost, stolen, damaged, or deteriorating.

Title IV also established guidelines for licensing and royalties in regard to copyrighted music transmitted over the Internet and in other digital forms. Transmissions are not subject to licensing if transmitted with encoded copyright information and with permission from the copyright owner of the sound recording.

No Electronic Theft Act

The concerns surrounding the protection of the copyrights of electronic data extend to computer software. In 1997, Congress approved the No Electronic Theft (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678, which substantially enhanced existing federal copyright law. Aimed primarily at the rampant theft of computer software, it allows the prosecution of anyone who violates the copyright of materials worth more than $1,000 in a six-month period by copying, distributing, or receiving software.

Congress passed the law in November 1997 after the software and entertainment industries strongly lobbied for it, claiming losses amounting to $2 billion in 1996 in the United States alone. In particular, the law closed a narrow loophole in existing federal law, which made criminal prosecution for copyright violation only possible if the violation resulted in financial gain. Under the NET Act, individuals face fines and jail sentences even if they do not profit financially from the violation. The law was enacted over protests by scientists who feared that it would hinder their research.

Lobbyists pointed to what became known as the "LaMaccia loophole." This term refers to an unforeseen weakness in federal law that was exposed by the failed federal prosecution of computer hacker David LaMacchia in 1994 (United States v. LaMacchia, 871 F. Supp. 535 [D. Mass. 1994]). LaMacchia, then a 21-year-old student at the Massachusetts Institute of Technology, had used an electronic bulletin board to freely distribute countless commercial software programs. Although he was indicted for wire fraud under 18 U.S.C.A. § 1343 for allegedly causing software companies losses of more than $1 million, the case was dismissed. U.S. District Court Judge Richard Stearns ruled that criminal sanctions did not apply because LaMacchia had not profited from his actions.

According to the software industry, the decision paved the way for piracy of material through web pages and other commonly used Internet sites. Software manufacturers were not only concerned about deliberate piracy by computer hackers; they also wanted to stop the casual lending and copying of computer software between consumers and within offices as well. Joining them in this effort were the music and film industries, which have increasingly become partners of software companies in the production of multimedia CD-ROMs. Additionally, the music industry viewed with alarm the widespread distribution of commercial recordings by fans, which became popular over the Internet in 1997 with the development of new software technology for digitally copying songs.

The NET Act was designed to close the LaMacchia loophole. Swiftly passed by the House and subsequently approved by the Senate, the act accomplished this by amending two key parts of federal copyright law: Titles 17 and 18 of the United States Code. These laws previously defined copyright violation strictly in terms of financial gain. The NET Act broadened them to include the reproduction or distribution of one or more copies of copyrighted works and considers financial gain simply to be the possession of copyrighted work. It defines a misdemeanor violation as occurring when the value of the copied material exceeds $1,000 over a 180-day period; a felony occurs if the value exceeds $2,500. Penalties range from a one-year jail sentence and up to $100,000 in fines for first-time offenders, to five years' imprisonment, and up to $250,000 in fines for repeat offenders.

further readings

Electronic Frontier Foundation. 1995. To Have and to Hold: Can Copyrights Extend to Cyberspace Without Increased Costs and Threats to Privacy? (June 8).

Goldstein, Paul. 2003. Copyright's Highway: From Gutenberg to the Celestial Jukebox. Rev. ed. Stanford, Calif.: Stanford Univ. Press.

Vaidhyanathan, Siva. 2001. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York Univ. Press.

cross-references

Copyright, International; Intellectual Property.

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Copyright

Copyright

Copyright is a kind of protection offered by the laws of the United States to the authors of "original works of authorship," including literary, musical, dramatic, artistic, and other intellectual works. Copyright law thus protects a wide variety of creative compositions, including books, magazine articles, songs (both lyrics and music), plays (and any accompanying music), choreography, photographs, drawings, sculptures, and films and other audiovisual works. This protection is extended to both published and unpublished works. Copyright experts note that the definition of "intellectual works" should be interpreted quite broadly in this regard. For example, computer software programs can be registered as "literary works," and maps and architectural blueprints can be registered as "pictorial, graphic, and sculptural works."

Once the author or creator of an intellectual work secures a copyright for that work, he or she has exclusive rights to do whatever he or she wishes with it. The owner can reproduce and/or distribute copies of it for sale; transfer ownership via sale, lease, rental, or lending; prepare derivative works based on the copyrighted work; or provide public displays or performances of the work.

Several categories of material are generally not eligible for copyright protection. These include ideas, methods, concepts, principles, titles, names, slogans, familiar symbols or designs, listings of ingredients or contents, coloring, and variations of typographic ornamentation. Other material not eligible for copyright include works consisting entirely of information that is common property and contains no original authorship (standard calendars, height and weight charts, tables taken from public documents) and works that, in the words of the Copyright Office, "have not been fixed in a tangible form of expression." Examples of the latter include improvisational performances or choreographic works that have not been written or recorded.

CORNERSTONES OF COPYRIGHT LAW

The basic philosophy underlying American copyright law can be found in Article 1, Section 8 of the Constitution, which stipulates that "Congress shall have 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." The sentiments embodied in this proclamation were given added legal heft in 1909 and 1976, years that saw major copyright legislation become law.

A major change in American copyright law came in the late 1970s, as Congress passed new laws addressing the length and character of copyright protection. As a result of that legislation, which took effect on January 1, 1978, all works created on or after that date automatically receive legal protection from the moment of their creation (before then a work did not receive copyright protection until it had been published or registered with the Copyright Office). The new legislation expanded the duration of copyright protection as well. It provided authors with legal protection that ordinarily lasts for the entire life of the author, plus an additional 50 years after the author's death. In the case of "joint works" (works created by two or more authors under circumstances that were not "for hire"), the copyright protection lasts for 50 years after the last surviving author's death. For works made for hire, anonymous works, and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the copyright on the work in question last for 75 years from publication or 100 years from creation, whichever is shorter. Creative works that came into being prior to January 1, 1978, but had not yet been published or registered by that date are given similar protection under the terms of the statute.

Copyright protection is somewhat different for works originally created and published or registered prior to January 1, 1978. For such works authors could secure copyright protection for 28 years, with an option to renew that protection for another 28 years as the initial term expired. The new copyright law extended the length of that second term from 28 years to 47 years, thus making pre-1978 works eligible for a total of 75 years of copyright protection. In addition, a 1992 amendment to the Copyright Act of 1976 automatically extended the term of copyrights obtained from January 1, 1964, through December 31, 1977, to the full renewal limit of 47 years.

American copyright law underwent another change in 1989, when copyright notices on copyrighted material become optional. Prior to March 1, 1989, copyright notices had been mandatory on all published works; any works not carrying a copyright notice risked loss of copyright protection. After March 1, 1989, however, that notice was no longer requiredalthough it was still highly recommendedbecause works created after that date were automatically copyrighted the moment they were presented in a fixed form (generally print, audio, or video).

Notice is not required legally but may be useful practically. Kelly James-Enger, writing in The Writer, advised as follows: "To get the most protection from the copyright law you have to register your work with the U.S. Library of Congress. Properly registered, you're entitled to statutory monetary damages and attorney's fees if you prevail in a copyright infringement lawsuit; if you haven't registered, you'll have to prove not only that your copyright was infringed, but that you lost a certain amount of money as a result." James-Enger suggests that writers begin online at www.loc.gov/copyright.

The most recent significant legislation impacting copyright protection was signed into law by President Clinton in October 1998. This legislation, called the Digital Millennium Copyright Act, included a number of significant provisions, including the following:

  • Made it illegal to circumvent anti-piracy measures in commercial software.
  • Outlawed the manufacture, sale, or distribution of devices used illegally to copy software.
  • Placed limits on the copyright infringement liability of Internet service providers who transmit information over the Internet (although the Act also called for ISPs to remove materials that infringe on legitimate copyright claims).
  • Limits liabilities of nonprofit institutions of higher learning for acts of copyright infringement committed by student or faculty.
  • Requires payment of licensing fees to record companies for "webcasting."

Despite the changes that have taken place in American copyright rules over the past 200 years, in many respects copyright protection has always beenand continues to befairly simple. If you create something and record that creation in a tangible manner, you own it. The exceptions are materials in the public domain and others' right to so-called "fair use."

Public Domain

Once the term of a copyright (or a patent) expires, it is said to become a part of the "public domain." In essence, this means that it becomes community property. Anyone may use it. Photographs, magazine articles, and books are among the most common "public domain" materials used today.

Another potentially valuable source of public domain material is works produced by the United States government. While state and local governments often copyright their documents, reports, and other publications, the federal government does not do so.

"Fair Use"

Section 107 of the U.S. Copyright Act, in one paragraph that embeds a list of four items, describes "fair use" as follows:

"Notwithstanding the provisions of sections 106 and 106A [dealing with copyright itself], 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

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

"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."

The language of the law clearly leaves matters somewhat ambiguous, but the intent is not that difficult to discern. The law wishes to give reviewers and scholars the right to quote small portions of the work, teachers and researchers the right to use the work in actual practice, while protecting the income of the copyright holder.

Freelancers and small businesses using copyrighted material will sensibly protect themselves against lawsuits by quoting copyrighted materials very sparingly and in the contexts specified by the law itself. If large parts of the publication or the musical composition or whatever other form the object takes are needed, the user should make the necessary efforts to obtain formal permission and pay whatever fees the copyright owner charges.

WORK FOR HIRE AND COPYRIGHT

In situations where a worka software program, an essay, a mural, an advertising design, or another intellectual workhas been produced for someone who is working for someone else, the copyright for the work may belong to the person or business that arranged to have the work done, rather than the creator of the work itself. Such arrangements are known as work for hire. Copyright law defines "work for hire" as either: 1) a work prepared by an employee within the scope of his or her employment, or 2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, provided that the parties involved expressly agree in a written contract signed by both of them that the work shall be considered a work made for hire. Indeed, contracts that specifically define copyright ownership for work performed are essential, especially for small business owners who contract work out to freelancers.

COPYRIGHT NOTICE

Although attaching a formal notice of copyright to a work is no longer required by law (it was required prior to March 1, 1989), it is still a good idea. "Use of the notice is recommended because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication," stated the Copyright Office. "Furthermore, in the event that a work is infringed, if the work carries a proper notice, the court will not allow a defendant to claim 'innocent infringement'that is, that he or she did not realize that the work is protected. (A successful innocent infringement claim may result in a reduction in damages that the copyright owner would otherwise receive.)"

According to the Copyright Office, forms of notice vary for different kinds of intellectual works. For books, articles, sheet music, architectural plans, designs, and other kinds of "visually perceptible" works, copyright notice should contain all of the following three elements:

  1. The copyright symbol (the letter "C" in a circle) or the word "Copyright," or the abbreviation "Copr."
  2. The year of first publication of the work (in cases where the work is a compilation or derivation that incorporates previously published material, the year date of first publication of the compilation or derivation is acceptable). The year date may be omitted in instances where a pictorial, graphic, or sculptural work, with accompany text (if any) is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article.
  3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

For works that are fixed through audio meanscassette tapes, CDs, "books-on-tape," etc.the requirements for copyright notice are somewhat different. Copyright notice for these types of works should contain all of the following:

  1. The sound recording copyright symbol (the letter "P" in a circle).
  2. The year of first publication of the sound recording.
  3. The name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. In addition, if the producer of the recording is named on the label or containers of the work, and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice.

Notice of copyright can also be extended to unpublished works. Finally, when affixing notice of copyright to intellectual works of any kind, it is important to make sure that the notice is plainly visible.

COPYRIGHT REGISTRATION

Registration of copyrighted material may be made at any time during the life of the copyright. It is no longer required under American copyright law, but there are advantages associated with taking such a step.

  • Registration establishes a public record of the copyright claim
  • Certificates of registration are required if the copyright owner wants to file an infringement suit
  • Registration establishes prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate in instances where the registration is made within five years of original publication
  • Registrations made within three months of the work's publicationor prior to any infringement of the workentitle the copyright owner to statutory damages and coverage of attorney's fees in court; otherwise, only an award of actual damages and profits is available to the copyright holder
  • Registration gives the copyright owner additional protection against the importation of infringing copies

To register a copyright, the Copyright Office must receive a properly completed application form, a nonrefundable filing fee for each work that is being registered, and a non-returnable copy of the work that is being registered. There are variations to the above rules depending on the kind of work that is being registered, so registration seekers should contact the Office beforehand to get a full rundown on what is required for their particular work. The Copyright Office uses a variety of forms for the various intellectual works that people register; copyright owners need to make sure that they use the correct one. Form TX, for example, covers published and unpublished non-dramatic literary works such as board game instructions, computer programs, and books, while Form VA is intended for use in registering published and unpublished visual works such as photographs, sculptures, and architectural designs.

All applications and materials related to copyright registration should be addressed to the Registrar of Copyrights, Copyright Office, Library of Congress, Washington, DC 20559-6000. The Copyright Office also maintains an Internet site at lcweb.loc.gov/copyright/.

INTERNATIONAL COPYRIGHT PROTECTION

As the Copyright Office itself admits, "there is no such thing as an 'international copyright' that will automatically protect an author's writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions."

The two major copyright treaties to which the United States belongs are the Universal Copyright Convention (UCC) and the Berne Convention for the Protection of Literary and Artistic Works. The United States was actually a founding member of the UCC, which came into being in September 1955. Under the rules of the UCC, a work by a citizen or resident of a member nation or a work first published in a member nation may claim protection.

The Berne Convention, meanwhile, was first established more than a century ago, in 1886. The central feature of the Berne Convention is the automatic copyright protection that it extends to all citizens of member nations. If a country is a signatory to the Berne Convention, it must extend to nationals of other member nations the same copyright protection and copyright restrictions afforded to its own citizens. The United States joined the Berne Conventionwhich is regarded as the wellspring of most other national and international copyright regulationsin 1989, becoming its 77th member. In recent years, the United States has also entered into international copyright agreements enacted by the World Intellectual Property Organization (WIPO).

COPYRIGHT LAW AND THE INTERNET

The emergence of electronic commerce and digital technology triggered a fundamental reevaluation of U.S. copyright law in the 1990s. The Copyright Office has firmly supported the rights of companies to limit access to their Internet content, and the government has passed laws that make it illegal for Internet users to negate copyright protection mechanisms meant to protect Internet content. However, libraries, universities, research institutions, and other critics have charged that the Copyright Office position will unduly impede fair-use access to content in its zeal to protect owners of copyrighted material on the Internet.

In the meantime, companies are gearing up to protect electronic copyrighted material from illegal distribution. They are doing so through a variety of schemes collectively known as Digital Rights Management (DRM). These content control measures include: locking access to content through encryption schemes, plug-ins, and new markup languages. Other options include the traditional "honor system," in which permissions and payments are provided by the Copyright Clearance Center or other similar entities. Prosecution of copyright violators is another option.

The Copyright Office's response to growing Internet use is not limited to policymaking. In recognition of the growing reliance on and use of the Internet, the Copyright Office is also in the process of installing an electronic registration, recordation and deposit system, dubbed CORDS. This program will ultimately provide users with the ability to register copyrights and deposit dissertations online. According to the Library of Congress, "creators will register their works electronically, transmitting both the application and the works in digital form, with registration information then incorporated into the centralized online database of copyright registration records." In addition, the program will enable copyright owners and agents to record transfers of copyright ownership (including assignments, licenses, and security interests) on an online database.

COPYRIGHT OFFICE

In July 1999 the Copyright Office increased its fees for a variety of services it provides, including basic registration, document recordation, supplementary and/or renewal registration, search services (including reference and bibliographic reports), and certificates. But these increases do not provide full-cost recovery for its various services. Since the Copyright Office is not self-supporting, it relies on assistance from the Library of Congress general budget to fulfill its many obligations.

All correspondence intended for the Office should be addressed to the Registrar of Copyrights, Copyright Office, Library of Congress, Washington, DC 20559-6000. In addition, you can contact the Copyright Office through its Internet web site: lcweb.loc.gov/copyright/.

see also Trademarks

BIBLIOGRAPHY

Albiniak, Paige. "Do Not Bypass Go." Broadcasting and Cable. 6 November 2000.

Butler, Susan. "Piracy a Fight for All." Billboard. 14 January 2006.

"Buying Books One Page At a Time." New York Times Upfront. 9 January 2006.

Copyright Basics From the U.S. Copyright Office. Copyright Office, n.d.

Harmon, Amy. "Copyright and Copying Wrongs: A Web Rebalancing Act." New York Times. 10 September 2000.

James-Enger, Kelly. "Dear Writer." The Writer. February 2006.

Matthews, Anna Wilde. "Copyrights on Web Content are Backed." Wall Street Journal. 27 October 2000.

Miller, Michael J. "Why Google Print is More Important Than You Think." PC Magazine. 27 December 2995.

Peek, Robin. "The Digital Rights Management Dilemma." Information Today. November 2000.

"Politicians In No Mood to Change Copyright Law." Broadcast Engineering. 13 December 2005.

                                Hillstrom, Northern Lights

                                 updated by Magee, ECDI

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Copyright

Copyright

Copyright includes not only the right to make copies of a workcalled the right of reproductionit also includes several other rights, including the right to distribute, adapt, publicly perform, and publicly display a work. By allowing authors to control reproduction and other uses of their creative works for a period of time, copyright allows authors to make money by charging for such uses during the copyright term. This in turn creates a financial incentive for authors to invest time and effort to produce new works for the benefit of everybody.

In the United States, the period of copyright control lasts for different periods of time, depending upon who the author may be. The copyright term for a work created by a natural person is the lifetime of the author plus seventy years. The copyright term for a work created by a corporation, through its employees, is 120 years from the date of creation or 95 years from the date of publication. After a copyright expires, the work falls into the public domain for anyone to use.

The proliferation of computer technology poses a problem for copyright owners. Computer technology typically functions by reproducing copies of something in memory devices: when a computer file, such as a digitized music file, is digitally transmitted or even loaded into memory to run, copies are being made. Computers therefore make reproduction and distribution of digitized works cheap and easy, and the technology to do so has become widely available at a low cost.

This is good news for information consumers, because the cost of access to creative works becomes minimal; nearly everyone can afford access. But this is bad news for information producers, because they make no money from virtually free, unauthorized digital copies, and so they have less incentive to produce the works in the first instance. Copyright law, which provides artists and authors the legal right to prohibit unauthorized digital reproduction, is more difficult to enforce when the technology to make such reproductions is widespread. Much of the public controversy over copyright and the Internet, such as the debate over the Napster peer-to-peer music trading service during 2000, revolves around this clash between the interests of information consumers and those of information producers.

Some digital copying has been justified on the basis of "fair use," which is a limited user right that allows unauthorized use of portions of a copyrighted work for certain select purposes. The fair use privilege is especially important in allowing study, scholarship, commentary, and criticism of copyrighted works. For example, quoting a few lines of a book in a book review would be a classic example of fair use. Without the fair use privilege, copying the lines out of the book would constitute infringement, and could not be done without the permission of the copyright owner.

In the United States, the standard for fair use is extremely flexible, depending upon the circumstances of the use: in some instances, using an entire work without permission might be a fair use, while in other instances, fair use might permit the use of only a small portion. However, the fair use privilege is not unlimited, and many instances of unauthorized digital copying exceed the privilege. Other countries recognize a much more narrow user right of "fair dealing," which allows a few specific unauthorized uses of a copyrighted work, such as for news reporting. Fair dealing would permit even less latitude for unauthorized digital copying.

Establishing Copyright

Such controversies are likely to be widespread because the majority of creative works, including those found in digital format on the Internet or elsewhere, are likely to be copyrighted. Unlike patents for inventions, which must be applied for and approved, copyrights arise spontaneously when the work is fixed. As soon as pen is set to paper, or brush to canvas, or fingers to keyboard, the resulting work is automatically copyrighted. No application or registration is necessary. The work may be registered with the Copyright Office if the author wishes, but this is optional.

There are benefits for choosing to register the work. In particular, the copyright cannot be enforced in a U.S. court unless it has been registered. There are also benefits to placing a copyright notice on the work, but an author need not do so. This presents a problem for consumers who wish to use a work, as it may be copyrighted even though there is no notice of copyright attached to the work. Because copyright arises automatically, it is likely that any given work is copyrighted unless the work is old enough for the copyright to have expired, or unless it falls into a category of uncopyrightable subject matter.

What Is Covered? What Is Not?

Copyright has traditionally covered literary works, such as books, plays, and poems; musical works; sound recordings; pictorial and graphic works, such as paintings, drawings, cartoons, and photographs; and audiovisual works, such as motion pictures and graphic animation. Court decisions and international treaties have recognized that these types of works are protected by copyright, whether they are in digital format or in hardcopy. Additionally, in the United States since 1978, copyright covers computer software, which is considered a kind of literary work. Most other countries around the world have also added software to the list of copyrightable works. Copyright also covers the original selection and arrangement of collections or compilations of information, including databases. Thus, a great deal of the content found in digitized formats falls within the subject matter of copyright.

Copyright does not cover facts, short phrases or words, ideas, processes, or "unfixed" works. For example, an improvisational theater performance or musical "jam session" will not be covered by copyright if it is not recorded because if it is unrecorded, the work is unfixed. Similarly, a measurement or a law of nature cannot be copyrighted because they are facts that did not originate from an author, but which simply exist as part of the world. Business names or book titles usually are not copyrightable because they are short phrases or words. Recipes and game rules usually are not copyrightable because they simply describe processes. Thus, the copyright on a work such as a computer program extends to the original expression of the program the software codebut not to the underlying computer functions or processes.

The fundamental premise of copyright law is the distinction between a copy and the work. The work is the abstract, intangible , intellectual work that is embodied in a tangible copy. Works may be embodied in paper, canvas, stone, celluloid film, computer memory devices, or almost any other kind of material. Copyright grants authors the right to control the underlying work but does not necessarily grant the copyright holder rights in a particular copy. This contrast is perhaps best illustrated in copyright's "First Sale" doctrine. The purchaser of a particular copy does not by virtue of the purchase gain rights in the work. The copyright in the work still rests with the author or copyright owner, so the purchaser of the copy is still precluded from, for example, reproducing the work by creating additional copies embodying the work. But the purchaser does generally have the right to dispose of his copy as he wishes, by reselling it, giving it away, or even destroying it. The copyright owner may, of course, also sell the copyright to the work, but that is a different matter from selling copies of the work. And here again, digital technology has changed the interpretation and implementation of copyright protection. When the purchaser or owner of a traditional hardcopy embodiment of a copyrighted work, such as a sound recording, gave away or sold the copy, no new copies were created; the purchased unit itself passed from one person to another. In contrast, transfer of ownership of a digital work usually means no physical object is handed over; instead, a digital copy is rendered to the recipient.

International Copyright and Computer Technology

The international nature of the Internet poses certain challenges for copyright law. As in the case of patents, there is no international copyright or universally recognized copyright; copyright laws differ from nation to nation. When digitized works are transmitted from one country to another, it may be very difficult to determine which country's copyright law should apply. This situation is not as problematic as it could be because many nations have signed an international treaty, the Berne Convention, which sets minimum standards for copyright protection. It also requires nations to accord the citizens of other signatory nations the same rights that it gives to its own citizens. Additionally, the standards of the Berne Convention have been adopted as part of the series of intellectual property treaties accompanying membership in the World Trade Organization. Consequently, the basics of copyright are similar among most nations, although variations are possible.

Owners of copyrighted works may also use technological measures to prevent unauthorized uses of their works in digital form. These may include software or hardware devices that prevent reproduction or use of the protected content unless a password or other access code is obtained from the owner of the content. Many countries have adopted laws making it illegal to disable, tamper with, or "hack" around such content management devices.

see also Internet: Applications; Patents; Security; World Wide Web.

Dan Burk

Bibliography

Davis, Randall. "The Digital Dilemma." Communications of the ACM, 44, no. 2 (2001) 7783.

Miller, Arthur R., and Michael H. Davis. Intellectual Property in a Nutshell. St. Paul, MN: West Publishing, 2000.

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Copyright

COPYRIGHT

COPYRIGHT protects works of authorship; such works include not only books but music, paintings, sculptures, maps, architectural works, compilations of information, and computer programs, to name just a few. The exclusive rights that presently comprise copyright are the rights to reproduce the work, transmit it, publicly perform it, display it, and create derivative works based on it.

Article 1, section 8 of the U.S. Constitution authorizes Congress to secure "for limited Times to Authors … the exclusive Right to their … Writings." Congress acted quickly after ratification of the Constitution to implement its power, passing the first copyright statute in 1790. That first statute protected books, maps, and charts for a fourteen-year term, plus a similar renewal term. The formal prerequisites to obtaining protection were substantial, including registering the work with a federal court and publishing newspaper notices of that registration record. Originally, federal law protected published works, and state laws protected unpublished works. The past two hundred years have been marked by four developments in copyright protection: the progressive broadening of the class of works entitled to protection (presently including computer software and sound recordings); the lengthening of the term of protection (now the life of the author plus seventy years); the near elimination of the formalities required to preserve copyright; and the extension of federal law to unpublished works and consequent extinguishment of most state protection.

The 1790 statute was substantially revised in 1831, 1870, and 1909. After 1909 the term was twenty-eight years, with a renewal of twenty-eight years; the scope included photographs, music, and the graphic arts; and one claimed a federal copyright by publishing the work with a suitably placed copyright notice. Registration was a prerequisite to enforcing the copyright. The development of new technologies placed pressure on the 1909 act. Efforts begun in 1957 culminated, after years of struggle between contending interests, in the major revision of 1976. The continuing pace of change in technology and the globalization of the economy for information-based products led to more than thirty more amendments by 2000. The most significant were the Berne Convention Implementation Act of 1988, designed to facilitate U.S. adherence to an international copyright agreement, and the Digital Millennium Copyright Act, passed in 1998 to enhance copyright in the digital environment.

The statute now comprises eight chapters of Title 17 of the U.S. Code. However, many questions concerning a work are governed by the law in effect when the work was created or published; this means the copyright status of a work created in 1940 may turn on the rules in effect in 1940. Although copyright law is a matter of substantial complexity (the current law is about eight times longer than the 1909 law), a few observations can illuminate its core precepts.

First, in 1879 in Baker v. Selden, the Supreme Court established the principle (now found in Title 17, Section 102 of the U.S. Code), that copyright extends only to the expression of an idea and not to the idea itself. Thus, the owner of copyright in a book describing a system of bookkeeping was not permitted to control the system itself—only the author's particular way of explaining the system.

Second, the threshold qualitative requirement for protection is originality, which exists if the author has exercised a modest degree of creativity and judgment in creating the work. A 1991 Supreme Court decision, Feist Publications, Inc. v. Rural Telephone Service Company, established that the compilation of telephone numbers and names in a white-pages phone directory lacked the attribute of originality and so was not copyrightable. Originality is a substantially lower standard than the nonobviousness requirement for patent protection.

Third, the present law provides that copyright attaches as soon as a work is embodied in a tangible medium of expression with the authority of the owner. Thus, a songwriter obtains a copyright in a song when making an audio tape, or written draft of it; no government application is involved.

Fourth, the law provides that, notwithstanding the presence of copyrightable subject matter and an apparent violation of an exclusive right, a use may be privileged under the doctrine of fair use. The fair-use doctrine involves consideration of factors that, taken together, focus on whether the accused damaged the copyright owner. Many, many cases explore the boundaries of this privilege.

Copyright has grown more and more important with the development of the information economy. The value of trade in books, music, motion pictures, television, computer software, and databases is enormous—$280 billion of the U.S. gross domestic product in 1996. Copyright has become a major practice area for lawyers and the law that gives value to the assets of many companies large and small.

BIBLIOGRAPHY

Chisum, Donald S., and Michael A. Jacobs. Understanding Intellectual Property Law. New York: Matthew Bender, 1992.

Halpern, Sheldon W., Craig Allen Nard, and Kenneth L. Port. Fundamentals of United States Intellectual Property Law: Copyright, Patent, and Trademark. The Hague, Netherlands: Kluwer Law International, 1999.

John A.Kidwell

See alsoIntellectual Property ; Patents and U.S. Patent Office ; Trademarks .

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copyright

copyright, right granted by statute to the author or originator of certain literary, artistic, and musical productions whereby for a limited period of time he or she controls the use of the product. The work may be reproduced by the individual or by another licensed to do so by the individual. Royalties are paid on each performance of the work or each copy that is sold.

Copyrightable Materials

Literary matter, periodicals, maps, photographs, works of art, textile and other designs, sound recordings, musical compositions, photoplays, and radio and television programs are among the commodities that may be copyrighted. Material for copyright in the United States must be registered and deposited with the Library of Congress. The law makes special provision for the transmission of copyright material over cable television, jukeboxes, and public broadcasting stations. It also specifies circumstances under which the reproduction of copyrighted works by libraries and archives is permissible. Since 1980, computer software has been eligible for the same copyright protection as printed matter, and in 1984, a ten-year period of copyright protection was extended to semiconductor chips. The Supreme Court ruled in 1987 that neither the home use of television video recorders nor their manufacture violated the copyright laws.

The Bern and Universal Copyright Conventions

Copyrighting of foreign materials in the United States is a relatively recent development. After 1891, foreign language material was easily copyrighted in the United States; material in English, however, could not be copyrighted if it was imported, unless type was set and material printed and bound in the United States. Most of the major countries of the world, with the exception of the United States, adhered to the Bern Convention of 1887, which provided that literary material copyrighted in any signatory country automatically enjoys copyright in all the signatory countries.

The Universal Copyright Convention (UCC), which had as a main purpose the inclusion of the United States in a general system of international copyright, was signed at Geneva in 1952. It was accepted by the United States in 1954 and came into effect the following year. The U.S. copyright law was modified to conform to the convention, notably by elimination of procedural steps for the establishment of U.S. copyright in works published in other signatory countries and of the requirement that works in the English language by foreign authors be manufactured in the United States to obtain U.S. copyright protection. The United Nations Educational, Scientific, and Cultural Organization (UNESCO) played a leading part in the negotiations for the UCC, which was revised in 1971. In 1989 the United States became a member of the Bern Convention, which was most recently revised in 1971. Most nations subscribe to the convention, and most of those who do not are parties to the UCC or members of the World Trade Organization, whose agreements cover copyright and other intellectual property rights.

History

Protection of rights in literary property did not appear necessary in Europe prior to the invention of printing from movable type in the 15th cent. The sovereign asserted control over printing by issuing patents or privileges to individuals or by organizing publishers' guilds with monopoly rights. Through such devices, the state was able to censor heresy and sedition, while at the same time fostering literature. The only protection that the common law extended to the author was against publication of the work without permission; once publication was allowed, the work passed completely out of the author's control.

The first English copyright act (1710), while maintaining the common-law right, allowed the author to copyright a work for 14 years (with a like period of renewal); it also required deposition of copies and a notice that the work was copyrighted. That law was the model for the earliest American copyright statute, passed in 1790. Wheaton v. Peters (1834; see Henry Wheaton) established that copyright exists primarily for the public benefit rather than for the creator of the work. The current copyright statute was enacted in 1976 and became effective in 1978, superseding an act of 1909. There have been significant amendments enacted since then, including a 1988 law that implemented the United State's accession to the Bern Convention and a 1994 law that implemented changes that resulted from the Uruguay Round of the General Agreement on Tariffs and Trade (which established the World Trade Organization). In most cases, the law provides copyright for the duration of the author's life plus 70 years.

Bibliography

See B. Kaplan, An Unhurried View of Copyright (1967); W. S. Strong, The Copyright Book (1986); H. G. Henn, Copyright Law (1988); J. M. Samuels, ed., Patent, Trademark, and Copyright Laws (1989); E. Samuels, The Illustrated Story of Copyright (2000).

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copyright

copyright The right to prevent copying. It is a negative right that can be exercised by a copyright holder both by means of civil proceedings and also by seeking a criminal prosecution. Copyright protects the form in which an idea is expressed but not the idea itself. It is the main legal protection for computer-based inventions. Under the GATT agreement all nations agreed to protect computer programs as literary works. Copyright law is now also used to limit the use that can be made of all digitally recorded information (programs, data, databases, etc.) to stop rental of works or use of works by multiple users without the payment of higher royalties.

There is currently a very active movement to harmonize all the national copyright laws so that a Global Information Infrastructure could be created. This process involves a union of the continental European authors' rights systems based upon The Rights of Man with the Anglo-Saxon copyright system found in the USA, UK, Ireland, and the Commonwealth. The net result of this union is increasing power to authors of copyright works who are requiring payment for rental use of their works from publishers who publish on a pay-per-view basis on the Internet.

No formalities are required to obtain copyright protection for any literary work (including computer programs) although it remains good practice to place a copyright notice in all original works.

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copyright

copyright is the ownership of and right of control over the means of reproducing works of literature, art, drama, film, sound, and computer technology. Until the 18th cent. authors had little protection against pirate publication of their works. An important step forward, and the basis of modern legislation, was a statute of 1709 ‘to encourage learned men’ (8 Anne c. 19) by granting the author sole right of publication for fourteen years, with the possibility of a further extension of another fourteen years. Publishers were required to submit nine copies of each work to be lodged in the royal library, the libraries of Oxford and Cambridge Universities, Sion College, London, the four Scottish universities, and the Faculty of Advocates in Edinburgh. The length of copyright was extended in 1814, 1842, and 1911 and comparable legislation brought in to protect plays, music, and engravings. Copyright now lasts 70 years after the death of an author. Under the terms of the Public Lending Rights scheme, introduced in 1983, authors can receive royalties on the use of their books in libraries in Britain and in several other European countries.

June Cochrane

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Copyright (of Psychic Scripts)

Copyright (of Psychic Scripts)

Under the decision of Mr. Justice Eve (London, July 1926, Bligh Bond v. Miss Cummins ), a medium who is the amanuensis for the transmission or production of any written communication made in the presence of a sitter or sitters was adjudged to be the sole author of the script produced, and therefore the sole owner of all copyright values inherent in it (subject to the absence of any special agreement to the contrary), whether the script was addressed to a sitter as recipient or otherwise, or whether it contained matter personal to the sitter.

As a result of the above ruling, in Britain the element of telepathic transmission from sitter to medium resulting in the production of writing, or of any associative influence of a like nature involving any other person, living or dead, is excluded from the purview of the law.

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copyright

copyright Legal authority protecting works of art, literature, music and computer programs from reproduction or publication without the consent of the owner of the copyright. Since the Universal Copyright Convention (1952), works must carry the copyright symbol ((c)) followed by the owner's name and the first year of publication. Computer software and programs are protected in the US by the Copyright Act (1976) and Computer Software Act (1980), and in the UK by the Copyright (Computer Software) Amendment Act (1985). In the UK, the Copyright, Designs and Patents Act (1988) introduced the concept of ‘intellectual property’.

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copyright

copyright the exclusive legal right, given to the originator or their assignee for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.
copyright library a library entitled to a free copy of each book published in the UK. The copyright libraries in the British Isles are the British Library, the Bodleian Library, Cambridge University Library, the National Library of Wales, the National Library of Scotland, and the library of Trinity College, Dublin.

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copyright

cop·y·right / ˈkäpēˌrīt/ • n. the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. • v. [tr.] secure copyright for (such material).

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copyright

copyrightHamite, samite •marmite • Semite • Vegemite •eremite • Hashemite • Fatimite •chromite • Edomite • sodomite •stalagmite • Elamite • dolomite •Adullamite • dynamite • catamite •Benthamite •termite, thermite •Samnite • sennight • midnight •lignite • selenite • gelignite •kaolinite • Leninite •finite, transfinite •watchnight • fortnight • Sunnite •exurbanite, suburbanite, urbanite •manganite • ammonite • Mennonite •Canaanite • Maronite • bentonite •Irvingite • respite • alexandrite •Arkwright • cartwright • nephrite •playwright • wainwright •wheelwright • millwright •shipwright • copyright • Nazirite •pyrite • eyebright • nitrite • contrite •chlorite • forthright • downright •Fulbright • upright • meteorite •diorite • fluorite •Labourite (US Laborite) • sybarite •Thatcherite • phosphorite • azurite •anchorite • Hitlerite • dolerite •Amorite • Minorite • laterite •Hutterite • birthright

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