COPYRIGHT

Copyright is one of three types of intellectual property law, along with patents and trademarks. Copyright gives authors and creators a limited right to control the use of their expression. Expression is how people convey their ideas, and it can include books, drawings, paintings, sculptures, photographs, music, movies, sound recordings, and computer software programs. Copyright protects only expression, not the idea or fact that is being expressed. For example, a history book will include many base facts and ideas, as well as some original ideas that the author developed on his or her own. A second author (or filmmaker, etc.) can use any of the facts and ideas contained in the book but would need permission to copy the original author's expression.

Expression must be fixed (stored) in a tangible medium before it is protected by copyright. Recording music on a cassette tape, painting on a canvas, or saving text on a computer are all ways of storing expression. The copyright owner has the right to control the reproduction, distribution, public performance, and public display of the work that contains the expression, whether that work is a book, film, sculpture, and so on. In addition, the copyright owner can control derivative works (i.e., adaptations and transformations of the original work), as when a novel is turned into a movie.

A work is protected by copyright as soon as it is created. In many cases, the author sells or licenses the copyright to a media company, which then markets the work to the public. Huge media conglomerates such as AOL-Time Warner, the Walt Disney Corporation, and the Sony Corporation own the copyrights to thousands of books, songs, films, and pictures. Computer software companies also own very important copyrights because computer programs are used in so many facets of modern day life. The duration of a copyright for a single-author work lasts for the life of the writer plus seventy years. The duration of a copyright for a corporate product is ninety-five years from the date of publication. After the copyright expires, the work falls into the public domain, and anyone may freely copy, distribute, or otherwise use the work.

Origins of Copyright

Before the development of the printing press in the fifteenth century, anyone could copy someone else's expression. Most books were written by hand, a very time-consuming process. The first European printers spent a lot of money setting up their presses and fonts, and they were concerned that rival printers would copy their books, causing them to lose money. Sometimes a government official would issue a special printing privilege, prohibiting other publishers from printing the same book. These privileges served two important purposes. First, they protected the young printing industry from competition. Second, they helped governments and the Roman Catholic Church to impose censorship on the publishing industry and control the spread of seditious and heretical books.

The first copyright law to give the author rather than the publisher initial control over how the work could be used was passed in England in 1710. Other European countries followed suit, and when the United States won its independence, the new nation modeled its first copyright law on the English statute. Copyright originally was a "Western" concept. Many countries in other parts of the world did not adopt copyright laws until the latter half of the twentieth century.

Justifications for Copyright

The primary purpose of copyright is to provide an economic incentive to create new works for the benefit of the public. Copyright law gives the author the ability to restrict access to the work in order to charge users and recoup his or her initial investment in creating the work. If competitors or consumers could copy and use the work without paying the author, the author might decide not to create the work in the first place. The dilemma for lawmakers is determining the appropriate amount of copyright protection. If the law grants more protection than necessary, the public will not have full access to the works that are created, reducing the public benefit of those works. If the law grants too little protection, fewer works will be created. Economists disagree about the degree of protection that is necessary to encourage creativity. On the one hand, creativity and expression flourished long before the first copyright law, suggesting that copyright protection is not necessary to encourage new works. On the other hand, more content is being produced than ever before, and that content is a significant portion of the world's economy, suggesting that copyright is beneficial to society.

In many countries, a second justification for copyright is to protect the moral rights of the author. This concept, sometimes referred to as droit moral for its basis in French copyright law, stems from the viewpoint that expression is the output of an author's distinct, individual personality and that authors deserve to be rewarded for their creative output. Moral rights typically include attribution of authorship (known as paternity) and protection for the integrity of the work. In countries that recognize a right of paternity, the author has the right to have his or her name associated with any work that the individual has created. The right of integrity gives the author control over how a work is altered to ensure that the work is not used in a way that would harm the author's reputation or distort the author's intent in creating the work. Moral rights, particularly the right of integrity, are limited in the United States because they sometimes conflict with free speech rights. Some commentators argue that authors deserve very strong copyright protection since they create new, original expression from their own minds. Other commentators argue that there are very few new or original ideas, and that most ideas come from the author's culture. These commentators believe that there should be very little copyright protection because the authors borrowed their ideas from the public domain in the first place.

Copyright in the United States

The U.S. Supreme Court has repeatedly stated that the purpose of copyright is to encourage creativity for the benefit of the public, not to reward authors for their labor. In an important 1991 ruling in Feist Publications, Inc. v. Rural Telephone Service Company, the Supreme Court said that the U.S. Constitution requires some degree of originality before expression can be protected by copyright. The fact that a work might be expensive and time-consuming to create (such as a telephone directory) does not mean that it deserves copyright protection.

Since copyright gives the author such a broad set of rights over how his or her expression is used (essentially granting the author a monopoly over the use of that expression), the law contains a number of limitations to ensure that the public can still gain reasonable access to the work. The most important limitation is known as fair use. Fair use allows someone to copy, without permission, portions of the author's expression in limited circumstances for purposes such as criticism, comment, teaching, news reporting, or research. Fair use eases the tension between copyright law and the First Amendment's protection of free speech.

Most of the other provisions of copyright law were created as compromises between the various media industries that exploit copyrighted works. For example, cable television companies pay a special fee for the right to retransmit the signals of local television stations. Musicians pay a special fee to record and distribute a new version of a different songwriter's song. Libraries and schools have been granted exemptions from many of the specific rules contained in copyright law since these institutions are supposed to make knowledge widely available to the public.

International Copyright

Copyright laws are designed primarily as a form of protectionism for the content industries, and international disputes play a major role in the development of each nation's domestic law. Problems of international piracy and lack of protection for foreign authors under the domestic copyright laws of most nations led to a major copyright treaty in 1886, the Berne Convention for the Protection of Literary and Artistic Works, which is administered by the World Intellectual Property Organization (WIPO). The Berne Convention outlines only the minimum standards of protection that each country must enact through its domestic laws. Thus, the potential for conflict between the laws of any two nations remains high.

The United States was precluded from joining the Berne Convention at first because the U.S. statute did not meet some of the minimum standards. From 1891 to 1955, the United States relied on bilateral agreements with individual nations. As intellectual property exports increased, the U.S. copyright industries (i.e., the publishing, film, music, and computer software industries) began to lobby more forcefully for U.S. involvement in international copyright treaties. In 1955, the United States joined the Universal Copyright Convention (UCC), which is administered by the United Nations Educational, Scientific, and Cultural Organization (UNESCO). The United States then joined the Berne Convention in 1989. The economic power of the copyright industries has made them forceful lobbyists for increased international and domestic copyright protection.

Copyright and Technological Change

Copyright law has changed dramatically as new technologies have been invented to create, store, and distribute copyrighted expression. With each new method of storing or transmitting expression, two key questions arise. First, does using the new technology infringe any of the rights of the copyright owner? For example, does playing a song on the radio count as a public performance of the song? Second, should the new technology itself be protected by copyright? For example, is the signal of a radio station protected by copyright? In the United States, the Copyright Act of 1976 attempted to answer these questions by granting protection to expression fixed in any tangible medium, no matter what technology is used. Yet the questions still persist. For example, does transmitting a song through the Internet count as a reproduction, distribution, public performance, or all three?

Technological advances such as photocopiers, videotape recorders, and cassette decks have made copying cheaper than ever before. All of these technologies have made it easy for consumers to make copies for their own personal use, resulting in lost sales by content creators. Yet it has proven impractical for copyright owners to try to enforce their legal rights in most cases involving such small-scale infringement.

The development of digital technology has increased the concerns of copyright owners. Unlike analog technology, digital technology creates perfect copies that are indistinguishable from the original work. In many instances, digital copies are also easier and cheaper to make than analog copies. For example, computer files can be copied almost instantaneously at the click of a button. While these attributes reduce the costs that are incurred by copyright owners in producing and distributing their works, they also significantly increase the amount of copyright infringement that takes place. Copyright owners increasingly have sought to use new technology to limit the ability of consumers to make copies. For example, cable and satellite television signals are often scrambled using encryption technology to prevent nonpayers from obtaining the content. In addition, much of the consumer electronic equipment that is used to play copyrighted content now contains special anticopying technology.

The Internet has dramatically exacerbated the threat of copyright infringement because computer networks are designed to facilitate the distribution of content. So now, not only are digital copies easy and cheap to make, they are also easy and cheap to distribute. This change in technology has led many commentators to question whether copyright law remains a useful concept. Copyright law has focused primarily on restricting the copying and distribution of the physical object that contains the expression. In a 1994 essay, John Perry Barlow suggested that copyright would quickly become anachronistic in a digital world where expression is created and distributed as digital bits on the Internet and where physical objects have less relevance.

The response of the copyright industries has been to rely more heavily on technological measures to control access to their content. The Digital Millennium Copyright Act (DMCA), a 1998 amendment to U.S. copyright law, makes it illegal to circumvent the technology used to protect a work or to develop or distribute devices that are designed to circumvent protection technology. Copyright owners claim that without these strong enforcement measures, the Internet will not reach its full potential as a distribution medium for copyrighted content. Many critics argue that copyright law is being expanded to grant copyright owners more control over their works than ever before, making it difficult for individuals to engage in fair use or gain access to the legally unprotected ideas contained in an author's expression.

Another important feature of the Internet is its global nature. The Internet allows users to send and receive information from almost anywhere on the planet. This creates additional challenges for copyright because each country has its own copyright law. A website that may be perfectly legal in the country where it was created is easily accessible from countries where that website would be considered copyright infringement. This problem is creating pressure for more conformity among the domestic laws of each nation. However, such conformity does not take into account the cultural differences and unique policy objectives of each nation. In the future, the World Intellectual Property Organization and the World Trade Organization will play an increasingly important role in shaping the balance of copyright between protecting content and providing access to information.

See also:First Amendment and the Media; Internet and the World Wide Web; Printing, History and Methods of; Writers.

Bibliography

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Matt Jackson