An intangible right 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 the person to make copies of the same for publication and sale.
United States Loses Copyright Protections to Antigua
The small Caribbean nation of Antigua won its case before the World Trade Organization (WTO) in December 2007, being awarded $21 million in U.S. dollars for what the WTO determined was a violation by the United States of its international trade agreements. This final ruling, which was not subject to appeal, ended a very protracted and convoluted battle between the countries over online gambling. Specifically, the WTO ruled that the United States had wrongfully blocked online casino gambling operators on the island of Antigua from the American market, while allowing online wagering for horse-racing. The dozens of online casinos operating within Antigua's borders constituted the small country's second-largest employing industry and was important to the country's economy. Antigua had asked for $3.44 billion in damages.
As background, the U.S. government, during world trade negotiations in the early 1990s, had agreed not to impose special restrictions on online gambling, but then ostensibly did exactly that. The subject agreement, General Agreement on Trade in Services (GATS), was one of more than 20 trade agreements negotiated among WTO members. In 2003, Antigua filed a complaint for U.S. unfair trade practices, in violation of GATS, with the WTO. The WTO consistently sided with Antigua, starting with the first WTO panel decision in 2004. Its appellate body upheld that decision in 2005, and gave the United States one year to comply with the ruling.
The deadline passed without U.S. concession; in fact, a statement from Washington declared that the United States had determined it was in compliance with GATS. It asserted that it had never intended to allow free cross-border gambling or betting, instead restricting those activities within the United States. In 2006, the U.S. government began to enforce other, previous laws against online gambling through the Unlawful Internet Gambling Enforcement Act of 2006. The stated rationale for the Act was the protection of U.S. citizens against the moral vice of gambling. The problem with that argument, according to Antigua's petition, was that U.S. citizens enjoyed full access to online wagering for horse racing. Instead, argued Antigua, the United States was merely attempting to keep online gambling “in-house,” for economic gain and in violation of Antigua's rights as a member of WTO.
In March 2007, the adverse ruling was upheld for a second time, and WTO declared the United States as out of compliance with its rules. At that point, to comply with the ruling, the United States needed to either reverse itself and permit Americans to place bets online with offshore casinos, or in the alternative, make all forms of online gambling illegal, including the lucrative online wagering on horse-racing. With the latter, the United States would need to compensate GATS members for the so-called loss of market access.
The GATS allowed members to modify or withdraw commitments, provided they negotiated offsetting compensation (for the loss of market access), i.e., the overall level of GATS market access had to remain the same. In May 2007, two months after the WTO upheld its previous ruling, the United States announced that it was rewriting/withdrawing its trade rules to remove gambling from the jurisdiction of the WTO. In the ensuing months, it successfully renegotiated agreements with other WTO members such as Canada, Australia, Japan, and India. However, Caribbean nations had more difficulty with renegotiations, as the U.S. withdrawal of its GATS commitments represented a more severe impact on their smaller national economies.
In a final attempt to pressure the United States to not withdraw its GATS commitment and open up its market to cross-border gambling services, Antigua initiated another WTO procedure. Article 22 DSU provided for the right to request compensation or the temporary suspension of concessions until the member (in this case, the United States) brought the measure deemed out of compliance into compliance, or the member otherwise complied with the rulings and recommendations. In other words, Antigua asked for the right to retaliate.
On December 17, 2007, the European Union (EU) announced its agreement with the United States on a compensation package offered by the United States pursuant to its withdrawal in WTO of previous GATS commitments on gambling and betting services, including online gambling. Four days later, on December 21, 2007, the WTO issued its final ruling against the United States and in favor of Antigua. In its ruling, it granted to Antigua the requested right, under Art. 22 DSU, to retaliate against the United States (in this case, by violating U.S. intellectual property/copyright protections on goods like music and videos). However, it awarded the right to do so for an amount not exceeding US $21 million, not the $3.44 billion Antigua had claimed in damages. (The United States had argued that its behavior had caused approximately $500,000 in damages).
Following the ruling, the United States trade representative to Antigua issued a stern warning to avoid any acts of piracy, counterfeiting, or other violations of intellectual property rights while talks continued with that country. Otherwise, such behavior would “undermine Antigua's claimed intentions of becoming a leader in legitimate electronic commerce, and would severely discourage foreign investment.”
CCIA Report on ‘Fair Use’
The Fair Use exception to U.S. copyright law, codified in Section 107 of the U.S. Copyright Act of 1976 (17 USC 107), refers to certain permitted uses of copyrighted material that will not invoke violations of copyrights, i.e., will not constitute infringements of copyright law. According to that section, “The fair use of a copyrighted work for … purposes such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright.”
According to the U.S. Copyright Office, fair use of copyrighted material, i.e., use not requiring license from the copyright owner, is generally determined by applying four criteria: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.”
Over the years, numerous court decisions at all appellate levels have eked out the meaning and parameters of these exceptions, as applied to fact-specific cases before them. But, as a practical matter, an objective overview of the use of fair use and its effect and benefits upon national and global economies was lacking.
In September 2007, the nonprofit Computer and Communications Industry Association (CCIA) released its commissioned study that quantified, for the first time ever, the contributions that “fair uses” of copyrighted material made to the U.S. economy. Entitled, Fair Use in the U.S. Economy, the study was conducted in accordance with World Intellectual Property Organization methodology. According to its findings, four main groups of industries depended upon or greatly benefited from the fair use doctrine (along with other limitations and exceptions to a lesser degree). They were (1) manufacturers of consumer devices that allowed individual copying of copyrighted programming; (2) educational institutions; (3) software developers; and (4) internet search and web hosting providers.
According to the report, fair use exceptions were responsible for more than $4.5 trillion in 2006 annual revenue for the United States (representing a 31 percent increase from 2002). Another statistical finding in the report measured “value added,” or a measure equal to a firm's total output minus its purchases of intermediate inputs. This was considered the best measurement of an industry's economic contribution to national GDP (gross domestic product). In this case, the report found that in 2006, fair use-related industry value added was $2.2 trillion, equal to 16.6 percent of total U.S. current dollar GDP. According to CCIA, this made the fair use economy greater in worth than the copyright economy.
The report cited digital technology as the main contributor to the importance of fair use, fair use industries comprising more than 18 percent of U.S. economic growth (one-sixth of the U.S. GDP) and nearly 11 million American jobs. Clearly, the expansion of the Internet as a tool for both commerce and education remained dependent upon the user's ease of ability to locate and access useful information through search engines. This created new businesses, such as Google and Amazon, which in turn fueled demand from other hardware sectors such as the fiber optics, routers, and consumer electronics industries. Notwithstanding, the study indicated that the fair use exception was critical to non-technology industries as well, such as legal services, insurance, and newspapers.
CCIA president and CEO Ed Black, in an interview for Information Week, said, “Much of the unprecedented economic growth of the past 10 years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and non-licensed manner.” Google, Microsoft, Yahoo, and the media in general were members of CCIA and clearly benefited from fair use. Without this exception, search engine firms and others would face greater liability for infringement, which would manifest as a significant deterrent to providing those services. It would also thwart educational exchanges of information. Moreover, members of the general public could not download or print copyrighted material from a Web page, email copyrighted material to another person or entity , or use a recording device to capture copyrighted audio or video works. They also could not make digital copies of copyrighted media programming to enjoy at a later time (such as Tivo time-lapsed recording), or transfer copyrighted material from one medium to another (for personal use). The manufacture and sale of consumer devices such as digital video recorders, PCs, or MP3 players would all but disappear.
Black stated that CCIA's purpose in releasing its study was to encourage lawmakers to recognize that copyright legislation required a balance of interests. “Copyright was created as a functional tool to promote creativity, innovation, and economic activity,” Black went on. “It should be measured by that standard, not by some moral rights or abstract measure of property rights.” Black also stated, via CCIA's organizational website, that he believed, in order to stay on the edge of innovation and productivity, fair use needed to be kept as one of the cornerstones for creativity and an engine for growth for the country.
First Person Held Civilly Liable for Illegal Music Downloading
The major U.S. record companies, through its trade group the Recording Industry Association of America (RIAA), have sought to eliminate or drastically reduce the amount of music that is illegally downloaded from the Internet. Attempts to encode their CDs with anti-theft programs proved ineffective and the use of Digital Rights Management (DRM) restrictions on the redistribution of downloadable music formats appeared to be nearing an end when Apple announced in 2007 that it would cease to encode songs with DRM that it sold through its iTunes sales site. Though the technological efforts have proven ineffective, the RIAA has had some success in using copyright law to sue alleged in-fringers. Since 2003, RIAA has filed 26,000 lawsuits over file sharing of music. The lawsuits have led to settlements with infringers but it was not until 2007 that one of these lawsuits went to trial. A federal jury in Duluth, Minnesota found Jammie Thomas liable for violating the copyrights of six recording companies and awarded those companies $222,000 in damages.
The RIAA and the recording companies employ experts to identify Internet addresses of illegal music uploaders and downloaders. In this case they alleged that Thomas, a 30-year-old single Brainerd, Minnesota mother of two who works for the Mille Lacs Band of Objibwe, copied or distributed 24 songs by placing them on the Kazaa file-sharing network. The companies actually believed she had, under the user name “Terestarr,” shared over 1700 songs online, but chose to focus on just 24. The RIAA first warned Thomas through a computer instant message and then by sending her a cease-and-desist letter. When she did not agree to comply the RIAA then asked for financial compensation “($4,750) to settle the matter. When she again refused, the RIAA took the case to trial in federal court.
In early October 2007 a jury of six women and six men heard the evidence. Richard Gabriel, lead attorney for the record companies, relied on technical experts to prove Thomas had illegally shared copyrighted files. An Internet provider testified that the address used by “Terestarr” belonged to Thomas. A computer forensic expert testified that he had identified and linked Thomas' IP address and cable modem to pirated music on Kazaa in 2005. However, he conceded on cross-examination that he could not determine if Thomas was the person who had done the sharing. Thomas' lawyer, Brian Toder, contended that she has not shared the music but instead was a victim of an Internet hacker who used her computer without her knowledge. On redirect by Gabriel, however, the expert testified that he had seen no evidence that someone had taken over Thomas' computer and Internet connection.
Another contested piece of evidence was the hard drive in Thomas' computer. She had replaced her hard drive soon after the RIAA told her she was under investigation, which Gabriel suggested to the jury was a way to destroy evidence that proved she had the songs on her computer. This theory was weakened when a Best Buy Geek Squad employee testified that the hard drive was replaced under warranty and that Best Buy would not replace a hard drive unless it was not working properly.
The jury deliberated less than five hours before deciding that Thomas has distributed the songs illegally. The jury awarded the plaintiffs $222,000, which worked out to $9,250 per song. The RIAA and the record companies hailed the verdict as a warning that the financial consequences for illegal file sharing could be steep.
In a surprising development, U.S. District Judge Michael Davis, who had presided at the trial, notified lawyers in the case that he was weighing whether to grant Thomas a new trial. Davis stated that he may have improperly instructed the jury on what constitutes distribution of copyrighted music on the Internet. David had instructed the jury that simply placing songs on a file-sharing network could be considered illegal distribution. No proof was required to show that anyone received the song files. This contradicted an appeals court precedent which stated infringement of the distribution right required that someone received the songs. A hearing was scheduled for July 2008 but both sides were discussing a settlement of the case.
“The Family Guy” Subject to Three Lawsuits Filed in 2007
Producers of the television show, “The Family Guy,” became the subject of three separate lawsuits filed in 2007. The show is well-known for its parodies regarding pop culture topics as well as for its satire directed at celebrities. According to the plaintiffs, the parodies and satires went too far and infringed on the plaintiffs' copyrights
The first suit resulted from the show's parody of a distinctive elements that were featured on the “Carol Burnett Show,” a popular variety series that aired from 1967 through 1978. Burnett invented a character known as “Charwoman,” which was an animated caricature of Burnett herself and which appeared during the show's closing credits. Burnett was also famous for tugging on her ear during each show's final moments in a sign to her grandmother.
In April 2006, the Family Guy aired an episode that featured several male characters entering a porn shop. The Burnett character appears as a maid in the porn shop, and the music that plays sounds similar to the theme song from Burnett's show. “The Family Guy” characters then referred to Burnett's trademark ear tug, with one asking crudely, “I wonder what she tugged to say goodnight to her dad.”
Burnett's show was well-known for its own parodies and spoofs. Nevertheless, the 73-year-old actress was less than amused and filed a $2 million suit against 20th Century Fox. She has claimed that the use of her character as well as the music constituted copyright infringement. Moreover, Burnett sought damages for violation of her publicity rights. According to her pleadings, Burnett had previously denied a request for “The Family Guy” to use her theme song because she reserves its use for personal appearances. Because of this denial, she said, the show demeaned her character in an act of revenge.
A spokesperson for 20th Century Fox said that the company was taken aback by the suit. “Family Guy, like The Carol Burnett Show, is famous for its pop culture parodies and satirical jabs at celebrities,” said Chris Alexander, a spokesman for the producer. “We are surprised that Ms. Burnett, who has made a career of spoofing others on television, would go so far as to sue Family Guy for a simple bit of comedy.”
A parody of the song “When You Wish Upon a Star” gave rise to a second lawsuit that was filed in October 7, 2007. An episode of “The Family Guy” that was initially produced in 2000 was entitled “When You Wish Upon a Weinstein.” It focused on the main character's belief that because he could not manage his own money, he needed to hire a Jewish person to do so. During the episode, he sings a song entitled, “I Need a Jew,” which became the subject of the lawsuit. Due to the offensive nature of the episode, it did not originally air. However, the show appeared on the Cartoon Network in 2003.
The song entitled, “When You Wish Upon a Star” was first written by Ned Washington and Leigh Harline and appeared in the 1940 motion picture, “Pinocchio.” The song won the Academy Award that year for Best Original Song. The song's current copyright owner, Bourne Co., filed suit against several defendants, including companies associated with 20th Century Fox as well as the Cartoon Network. According to Bourne, the song “I Need a Jew” was a “thinly veiled” copy of the “When You Wish Upon a Star”, and the parody infringed on the plaintiff's copyright. “With its theme of wholesome hopefulness, the song has gained worldwide status as a classic,” the pleadings said of the plaintiff's song. “By associating Bourne's song with such offensive lyrics and other content in the episode, defendants are harming the value of the song.”
According to the allegations in the lawsuit, the plaintiff attempted to negotiate a resolution with 20th Century Fox, but these efforts allegedly failed. Bourne sought actual damages and the defendants' profits from the infringement, as well as injunctive relief to prevent the show from airing. The plaintiff filed the suit in the U.S. District Court for the Southern District of New York.
The third lawsuit filed against “The Family Guy” in 2007 arose due to a parody or rendition of a comedy skit of comedian Art Metrano. In 1969, Metrano created a character known as “The Amazing Metrano.” During his skit, he performed funny, simple tricks using his hands and feet while mimicking the actions of a magician. His act first appeared on the Lohman and Barkley Show in 1969, and he appeared periodically on other programs, including The Tonight Show with Johnny Carson. Metrano claims that this is his trademark routine.
In 2005, Fox produced a motion picture entitled “Stewie Griffin: The Untold Story,” which focused on the exploits of the son of the main character in “The Family Guy.” During this film, the animated character appears to go back in time to the era of Jesus Christ and shows Christ performing a comedy routine. According to Metrano's pleadings, the routine that was shown was identical to “The Amazing Metrano,” including use of the theme song.” Fox released a DVD of “Stewie Griffin: The Untold Story” in September 2005.
Metrano brought suit against 20th Century Fox as well as the creators of the “Family Guy,” including Seth McFarlane, Steve Callaghan, and Alex Borstein. The suit, filed in the U.S. District Court for the Central District of California, seeks damages in excess of $2 million. In addition to compensatory damages , Metrano also seeks punitive damages and attorneys fees.
Metrano was known for his roles in several of the “Police Academy” movies, but he suffered a spinal cord injury in 1989 and became disabled. He currently performs in a show entitled “Jews Don't Belong On Ladders…. An Accidental Comedy,” which raises money for those suffering from spinal cord injuries.
11th Circuit Sides with National Geographic in Copyright Dispute
The Eleventh Circuit Court of Appeals on July 2, 2008 sided with National Geographic in a case that has been in litigation for more than a decade. The case marked the second time that the Eleventh Circuit has issued a ruling on the dispute, which involves the question of whether National Geographic may transfer published archives to computer disks and sell them commercially without violating the copyrights of free lance contributors to the magazine. The court concluded that the magazine was not required to pay additional royalties on material that was reproduced on a computer disk.
Section 201(c) of the Copyright Act of 1976 provides as follows:
Contributions to Collective—Copyright in each separate contribution of a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of the copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work of the same series.
In several cases, issues have arisen about how this section applies when a publisher uses a copyrighted work from a contributor as part of an electronic database. This issue has arisen before the U.S. SUPREME COURT, but the lower federal courts have continued to struggle with these issues.
Jerry Greenberg was a freelance photographer who had photographs published in National Geographic issues dating January 1962, February 1968, May 1971, and July 1990. Like other contributors, Greenberg retained the copyright of his photographs and received royalties from National Geographic for the photos. The magazine as a general business practice reproduced back issues of the magazine in other forms, such as bound volumes, microfiche, and microfilm. In 1997, National Geographic created an archive of every monthly issue of the magazine from 1888 through 1996.
This collection was added to 30 CD disks, and the magazine issues appear digitally just as they did when they were originally published. The disk collection features a computer program that compresses and decompresses every image in the database. A user of the system may search photos that are contained in the CD set. Moreover, when a user first inserts a disk, the program displays a sequence of images as an introduction, and one of the images featured was Greenberg's photograph from the January 1962 issue. National Geographic registered a copyright for the disk set in 1998, claiming that the work had not been copyrighted before.
Greenberg filed suit in 1997 in the U.S. District Court for the Southern District of Florida, arguing that the CD disk set violated his copyrights to his photographs. The case paralleled litigation that was taking place in federal court in New York. In Tasini v. New York Times Co., 972 F. Supp. 804 (S.D.N.Y. 1997), the U.S. District Court for the Southern District of New York concluded that publishers could place the contents of their periodicals onto CD-ROMs without obtaining permission of the writers whose contributions were part of the content of the CD-ROMs. Relying on the reasoning of this decision, the Florida district court held that National Geographic had not infringed on Greenberg's copyright.
On appeal in 2001, the Eleventh Circuit reversed the district court's ruling. The court in that case considered different parts of the CD set separately and concluded that while some parts were privileged under section 201(c) of the Copyright Act, other parts were not. More specifically, the court determined that the digital replicas of the photographs and the sequence of photographs were separately copyrighted elements. Greenberg v. Nat'l Geographic Soc'y, 244 F.3d 1267 (11th Cir. 2001). The U.S. Supreme Court denied certiorari to review the case.
Shortly after the Eleventh Circuit issued its opinion, the Supreme Court reviewed Tasini. The Court questioned how the articles in a database were “presented to, and perceptible by, the user of the [d]atabases.” The Court's conclusion was that the databases presented the articles in a manner “clear of the context provided either by the original periodical editions or by any revision of those editions.” Thus, the Court held that the newspaper that created the database owned the copyright in the database that used individual contributions from other copyright holders. N.Y. Times Co. v. Tasini, 533 U.S. 483, 122 S. Ct. 2381, 150 L. Ed. 2d 500 (2001).
Four years after Tasini, the Second Circuit Court of Appeals reviewed another challenge to the National Geographic CD collection. The Second Circuit rejected the Eleventh Circuit's original opinion because the Second Circuit concluded that Tasini effectively abrogated the original decision in Greenberg. The Second Circuit thus held in favor of National Geographic. Faulkner v. Nat'l Geographic Enters. Inc., 409 F.3d 26, 36 (2d Cir. 2005).
The Eleventh Circuit revisited the dispute in 2007. A three-judge panel concluded that Tasini allowed National Geographic to reproduce print magazines in digital format under section 201(c). Greenberg v. Nat'l Geogrpahic Soc'y, 488 F.3d 1331 (11th Cir. 2007). On August 30, 2007, however, the court vacated the panel's decision and reviewed the case en banc.
The court issued its opinion on July 1, 2008. In a majority opinion by Eleventh Circuit Judge Rosemary Barkett, the court agreed with the Second Circuit's reasoning in Faulkner that the Supreme Court's decision in Tasini meant that National Geographic could reproduce and distribute the photographs in the CD set a “revision of that collective work” under section 201(c).
National Geographic hailed the decision. “These opinions [in the Second and Eleventh Circuits] obviously have been a long time coming and have been considered quite thoroughly, briefed quite thoroughly, and argued quite thoroughly,” said Terry Adamson, executive vice president of National Geographic. He continued by saying that the prolonged litigation “has been all about preserving 120 years electronically, so it would be preserved for all time,” compared with print publication that “will be lost.”
Author Sues Jerry and Jessica Seinfeld Over Cookbook
Actor Jerry Seinfeld and his wife, Jessica, became the subject of a lawsuit filed by the author of a cookbook with a theme similar to a book written by Jessica. Claiming that the Seinfelds acted with “arrogance” and “greed,” Missy Chase Lapine sued the Seinfelds for copyright and trademark infringement as well as slander.
In her pleadings, Lapine says that she is “certified in the master techniques of healthy cooking and was training in classical cooking techniques by the Institute of Culinary Education.” She is the former publisher of a magazine entitled Eating Well, and she also worked at Gourmet magazine. She has worked with a number of associations as a specialist in nutrition techniques.
In 2002, Lapine began to conduct research to identify methods that would encourage children to eat healthy foods. During this research, she conducted tests and consulted with experts in nutrition, pediatrics, and cooking. She claims that during this time she developed “original methods for combining ingredients, including specially-selected purees of vegetables that children typically resist, such as spinach and cauliflower, with dishes that children typically crave, such as brownies, pizza and pancakes.” These ideas formed the basis of her book, which she wrote over the next several years.
In February 2006, Lapine sent a 139-page proposal to HarperCollins Publishers. The proposal included several chapters from the complete manuscript. Four days after she sent the manuscript, though, a representative of Harper-Collins sent Lapine a letter indicating that the publisher had decided to reject the proposal. About three months later, Lapine resubmitted her proposal and again included chapters from the book's manuscript. The publisher once again rejected it. The publisher's letter stated that “the children's food segment of the market is a tough one to navigate during a particularly tough time in the cookbook category in general. The influence of the food network and the availability of recipes online have really hurt this area.” Accordingly, the publisher said it would pass on the book project.
Lapine then turned to another publisher, Perseus Books Group, which accepted her proposal in June 2006. The parties entered into an agreement in August 2006. In April 2007, the publisher released the book through its imprint, known as Running Press. The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals became a New York Times best seller within three weeks of its publication. Lapine and her agents filed appropriate paperwork with the U.S. Copyright Office and the U.S. Patent and Trademark Office.
Lapine actively marketed her book, appearing on such television programs as the “Today Show” and “Fox and Friends.” She also appeared on national and local radio programs, as well as national magazines such as Parenting and Women's Day. She traveled throughout the country on a book tour as well.
About a month after her book was released, Lapine learned that HarperCollins planed to publish a cooking book by Jessica Seinfeld. An eight-page brochure showed similarities between the Seinfeld book and Lapine's book, including similarities in the cover design. Lapine's publisher attempted to halt publication of the Seinfeld book but was unsuccessful. According to HarperCollins, Seinfeld's book was “entirely original,” and the publisher refused to make any changes to her book.
Seinfeld's book was published in October 2007 with the title Deceptively Delicious: Simple Secrets to Getting Your Kids Eating Good Food. The publisher made a few modifications to the cover of the book, changing the illustration. The subtitle from Seinfeld's book was changed from “Sneaky Secrets to Get Your Kids Eating Good Food” to “Simple Secrets to Get Your Kids Eating Good Food.” The subtitle of Lapine's book is “Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals.”
In her complaint, Lapine points out a number of other similarities. Both books, for instance, contain introductions written by doctors that address the problem of obesity among children in the United States. Both of the authors also provide personal anecdotes about their own children's picky eating habits. Neither of the authors is a professional chef, a fact that is pointed out in both books. Many of the recipes in both books are similar as well.
Jessica Seinfeld engaged in a promotional campaign for her book shortly after its release. She appeared on such programs as “The Oprah Winfrey Show” and “Live with Regis and Kelly.” However, rumors began to circulate that she had plagiarized her book by using ideas from Lapine's book. In response to these allegations, Jerry Seinfeld referred to Lapine's claims when he appeared on the “David Letterman Show” on October 29, 2007. During the interview with David Letterman, Seinfeld referred to Lapine as a “wacko” and compared her with a woman who had previously stalked Letterman. Seinfeld repeated his comments in an interview with E! News.
Lapine sued the Seinfelds in the U.S. District Court for the Southern District of New York. She has claimed that Seinfeld's book infringed on her copyright and also that the Seinfeld book infringed Lapine's trademark due to similarities in the artwork that appears on the covers of both books. In addition, Lapine sued Jerry Seinfeld for slander for his public statements about Lapine. Legal commentators have suggested that Lapine has a weak case regarding the copyright and trademark cases but that she may have a better chance to prove her slander action. The lawsuit does not specify the damages that Lapine seeks.
Heirs Reclaim Share of ‘Superman’ Copyright
After years of litigation, the heirs to the original co-creator of the comic hero character ‘Superman’ were able to regain ownership and control of a share of the copyright associated with the Superman character. In the March 2008 case of Siegel v. Warner Bros. Entertainment Inc, No. CV-04-8400-SGL, federal district judge Stephen Larson ruled in favor of the heirs. The decision did not void a copyright agreement executed by co-creator Jerome Siegel in 1938 for $130, but rather, affirmed the validity of a termination of copyright grant that was effected by Siegel's heirs in the latter 1990s. The status of the copyright and the respective parties' interests had been in quasi-litigation for years.
As teenagers at Glenville High School in Cleveland, Jerome Siegel, an aspiring writer, and his friend, Joseph Shuster, created their now-famous character in the 1930s as part of a comic book, “The Superman.” Unable to find a publisher interested in their comic book, they embellished the main character into a secret-identity-possessing superhuman newspaper reporter named Clark Kent. Shuster was the budding artist who illustrated Siegel's idea, giving the character a cape, leotard, “S” emblazoned on his chest, and a distinctive curl lock of dark hair on his forehead. Together, the co-creators tried to market their comic strip, and finally in 1938 submitted their work to Detective Comics. In February 1938, Detective Comics sent Siegel a check for $130, along with a written agreement that assigned the rights to “Superman” to the publisher. Both Siegel and Shuster signed and returned the agreement.
A few weeks later, Detective Comics (DC) debuted its first volume of “Action Comics,”starring the new character Superman. It was an instant success. Nine years later, in 1947, Siegel and Shuster filed suit in New York's Supreme Court to rescind and annul the 1938 agreement as void for lack of mutuality and consideration. They lost. The validity of the agreement was affirmed, but Siegel and Shuster nonetheless settled the claim for $94,000 in return for signing a new stipulation that DC owned all the rights to the character Superman.
In 1969, Siegel and Shuster again filed suit in federal district court , seeking a declaratory judgment that they were the owners of the renewal rights to the Superman copyright upon expiration of the original term of years. Again, they lost after both district and appellate courts concluded that they had assigned both initial copyright term and renewal terms in 1938. However, amid publicity that both men were living in squalor, publisher DC (which later became DC Comics) signed a second agreement with them in 1975, in which they expressly assigned to DC Comics and its affiliates “all right, title and interest in” Superman, “including any and all renewals and extensions of … such rights.” In return, they were provided with an annual annuity of $20,000 to $30,000 for the remainder of their lives.
This probably would have been the end of the matter, but for the fact that shortly thereafter, Congress enacted the Copyright Act of 1976. This Act gave artists and their heirs the ability as well as a window of opportunity to terminate any prior grants of copyrights in their work(s) that were executed prior to January 1, 1978, regardless of the terms contained in those assignments, if certain requirements were met. Those requirements included a provision that the individual seeking to exercise the termination right “must specify the effective date of the termination, and that effective date must fall within a set five-year window which is at least fifty six (56) years, but no more than sixty-one (61) years, from the date the copyright … was originally secured, and such termination notice must be served two to ten years before its effective date.” This meant that Siegel could exercise his right to terminate prior copyright grants any time during a five-year window starting in 1994 (193856). Of course, his interest in the copyright was limited to 50 percent (shared with co-creator Shuster's 50 percent interest, also assigned to DC).
Siegel died in 1996. In 1997, his heirs, including his spouse and a daughter, served copyright termination notices upon DC Comics and several other parties that had profited from the Superman character, such as Warner Bros. and Time-Warner, Warner Communications. It was the validity of those termination notices that was affirmed in the 2008 case.
Still, there were complex issues. Section 304 of the Copyright Act, governing terminations of copyright transfers, did not affect derivative works created during the period of the copyright grant. Clearly, during the years from 1938 through the 1990s, many derivative works were created, including the 1950s television series, the Christopher Reeves movies, and the majority of comic and cartoon programs. The court's ruling left intact these derivative rights, meaning, no monies were owed to the heirs for these works created during the grant period. The majority of these works were protected by separate copyrights retained by Time Warner until they expired. These, as well as the Superman character, were projected to enter the public domain on/around 2033.
Viacom v. YouTube
In an important case testing the parameters of online privacy and discovery, Viacom Inc. filed suit in federal district court against Internet giants YouTube and Google for copyright infringement involving some 160,000 “unauthorized” clips of Viacom programming made available on YouTube. According to the suit, these clips were viewed 1.5 billion times by visitors to YouTube. The complaint was filed in March 2007 in the U.S. District Court for the Southern District of New York. Viacom International Inc. v. YouTube, No. 07 Civ. 3582. Joining Viacom as Plaintiffs in the action were the Football Association Premier League Limited “and all other others similarly situated.” The named Defendants were YouTube Inc., YouTube LLC, and Google Inc. The search engine giant Google was YouTube's parent company.
The crux of the case involved Viacom's claim of ownership of copyrights in specified television programs, motion pictures, music recordings, and other entertainment programs. YouTube originally established its name in the industry as a free service and video-sharing web-site for home videos or “amateur” works seeking visibility on the Internet. Virtually anyone could post a short video “clip” at the site, which had an international audience. Viewers logging onto the site could then access these clips, free of charge, by entering key terms in a search request, the result of which would be an inventoried list of video clips matching the search request. Viewers could then “click on” a selected video and view it as many times as desired, and as many video clips as desired. YouTube then publicly “performed” the chosen video by sending streaming video content directly from YouTube's servers to the user's computer, while simultaneously downloading a copy of the chosen video from the YouTube website to the user's computer where it could be viewed at will.
In the lawsuit, Viacom alleged that:
Defendants encourage individuals to upload videos to the YouTube site, where YouTube makes them available for immediate viewing by members of the public free of charge. Although YouTube touts itself as a service for sharing home videos, the well-known reality of YouTube's business is far different. YouTube has filled its library with entire episodes and movies and significant segments of popular copyrighted programming from Plaintiffs and other copyright owners, that neither YouTube nor the users who submit the works are licensed to use in this manner. Because YouTube users contribute pirated copyrighted works to YouTube by the thousands, including those owned by Plaintiffs, the videos “deliver[ed]” by YouTube include a vast unauthorized collection of Plaintiff's copyrighted audiovisual works. YouTube's use of this content directly competes with uses that Plaintiffs have authorized and for which Plaintiffs receive valuable compensation.
The lawsuit went on to discredit YouTube's claim that it was merely “providing storage space, conduits, and other facilities to users who create their own websites with infringing materials.” To the contrary, Viacom argued, “YouTube itself commits the infringing duplication, distribution, public performance, and public display of Plaintiff's copyrighted works, and that infringement occurs on YouTube's own website, which is operated and controlled by Defendants, not users.”
The lawsuit sought $1 billion in damages (for lost royalty compensation and value) and injunctive relief. Viacom had previously requested that 100,000 videos be taken down in February 2007, as detailed in the Digital Millennial Copyright Act of 1998 (DMCA), 17 USC 501 et seq. and YouTube complied.
By way of defense, YouTube and Google argued that they were protected under §512(c)-(d) and (i)-(j) of the DMCA, which, among other things, limited the terms of injunctions and barred copyright-damage awards against online service providers who met certain criteria. Those criteria included that the provider (1) performed a qualified storage or search function for online users; (2) lacked actual or imputed knowledge of infringing activity; (3) received no financial benefit directly from such activity; (4) acted promptly to remove or disable access to infringing activity; (5) adopted and publicized a policy of terminating repeat offenders; and (6) accommodated and avoided interference with standard measures employed by copyright owners to identify or protect their works.
In July 2008, an important 25-page Order was issued by the court in the case. It concerned Plaintiff's motion to compel discovery of certain electronically stored information and documents, including a critical trade secret: the computer source code that controlled both YouTube's search function and Google's internet search tool, “Google.com.” Both YouTube and Google cross-moved for a protective order, claiming that disclosure of the search code would irreparably harm their business, in that the search code was responsible for Google's growth from its founding to its present international status “with more than 16,000 employees and a market valuation of roughly $150 billion.”
On July 1, 2008, the district court partially granted Viacom's discovery motion, ordering Google to produce the contents of YouTube's logging database, which was all data concerning each time a YouTube video was viewed on the YouTube website or through embedding a a third-party website. The Logging Database apparently recorded “for each instance a video is watched, the unique ‘login ID’ of the user who watched it, the time when the user started to watch the video, the internet protocol address, other devices connected to the internet and used to identify the user's computer (‘IP address’) and the identifier for the video.”
The court rejected Google's argument that disclosure of this information would violate users' privacy, and cited Google's own “Public Policy Blog,” which stated that IP addresses could not be used to identify individual users without more information. The court also rejected YouTube's argument that the information was protected by the 1988 Video Privacy Protection Act, 18 USC 2710. But the ruling stated that the Electronic Communications Privacy Act, 18 USC 2510 et seq., did prevent YouTube from disclosing any video that users had labeled as “private.” The court protected these videos by limiting compelled disclosure to non-content information, such as the usage history.
The court denied Viacom's request for Google's trade secret, its search source code, accepting Google's argument that it would be devastating to its business. It likewise denied discovery of the source code for YouTube's new “Video ID' program, with which copyright owners may search the site for infringing materials by providing a sample clip of the copyrighted material for reference. Notwithstanding the denial of these requests, the court did allow that Viacom may have access to them if it could make a “plausible showing” to demonstrate that the search code was intentionally designed to facilitate the viewing of infringing content.
The effect of the ruling on the future of online privacy was unclear, as final adjudication of the case on the merits was still pending.
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 required—although it was still highly recommended—because 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 been—and continues to be—fairly 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."
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.
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—
- "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- "the nature of the copyrighted work;
- "the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- "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 work—a software program, an essay, a mural, an advertising design, or another intellectual work—has 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.
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:
- The copyright symbol (the letter "C" in a circle) or the word "Copyright," or the abbreviation "Copr."
- 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.
- 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 means—cassette 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:
- The sound recording copyright symbol (the letter "P" in a circle).
- The year of first publication of the sound recording.
- 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.
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 publication—or prior to any infringement of the work—entitle 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 Convention—which is regarded as the wellspring of most other national and international copyright regulations—in 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.
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
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
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.
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.
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 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 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.
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.
Sections within this essay:Background
Definition of Copyright
History of Copyright
What is Copyrightable
What is Not Copyrightable
Registration, Deposit, and Notice
Attributes of Ownership
Duration of Ownership
Definition of Infringement
Defense to Infringement: Fair Use
Remedies for Infringement
State Laws Related to Copyright
United States Copyright Office, The Library of Congress
Intellectual Property Owners Association
Recording Industry Association of America
A copyright is an intangible right granted by statute to the originator of certain literary or artistic productions, including authors, artists, musicians, composers, and publishers, among others. For a limited period of time, copyright owners are given the exclusive privilege to produce, copy, and distribute their creative works for publication or sale.
Copyright is distinct from other forms of legal protection granted to originators of creative works such as patents, which give inventors exclusive rights over use of their inventions, and trademarks, which give businesses exclusive rights over words, symbols, and other devices affixed to goods for the purpose of signifying their authenticity to the public. All three types of legal protection comprise an area of law known as intellectual property.
U. S. copyright law is an outgrowth of English common law. When the printing press was created in the fifteenth century, rights were at first granted to printers rather than to authors. The English common law protected printers' intellectual property rights until 1710, when Parliament passed the Statute of Anne, which conferred upon authors the right to control reproduction of their works after they were published. The right lasted for 28 years, after which an author's work was said to enter the public domain, meaning that anyone could print or distribute the work without obtaining the author's permission or paying the author a royalty for the right to distribute it.
By the late eighteenth century, protecting intellectual property interests was considered an important means of advancing the public interest in both Great Britain and the United States. Granting a monopoly to the originator of a creative work provided incentive for authors and inventors to make things the public found valuable enough to buy for personal, commercial, and governmental uses. The Patent and Copyright Clause, contained in Article I, Section 8, Clause 8 of the U. S. Constitution, recognized the growing importance of protecting intellectual property interests. It empowers Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries."
Congress passed the first copyright statute in 1790 and has substantially revised it several times, most notably in 1831, 1870, 1909, 1976, 1998, and 2005. In 1831, musical compositions were granted copyright protection over objections made by opponents who claimed that such works did not fall within the Constitution's definition of a "writing." In 1870 Congress granted copyright protection to paintings, statues, and other works of fine art. In 1909 copyright owners were given the right to renew a copyright for 28 years beyond the initial 28-year term established by the first statute.
In 1976 Congress brought unpublished works within the ambit of federal copyright law. Prior to 1976, unpublished works were only afforded protection by state common law. The protection was perpetual in nature, meaning that authors could prevent others from copying their works during their lifetimes, and then pass this right on to their heirs. However, once an authorized person published a work, the common law copyright was extinguished, and the only protection afforded was by federal statute. The 1976 act abolished nearly every significant aspect of common law copyright, creating a unified system for both published and unpublished works (see 17 U.S.C. § 102[a]). The 1976 act also made U. S. copyright law conform more to international standards, particularly with regard to the duration of copyright protection and the formalities of copyright registration.
In 1998 Congress passed the Digital Millennium Copyright Act (DMCA) to address a number of concerns relating to copyright infringement in the computer age. The DMCA limited the liability of Internet service providers (ISPs) for copyright infringement by Internet content providers, enabled Internet content providers to require immediate removal of infringing material, and made it illegal to circumvent encryption technologies designed to protect copyrighted works from unauthorized appropriation. Legal observers expect more intellectual property legislation to follow in the new millennium.
Congress enacted the Family Entertainment and Copyright Act in 2005 to address several concerns. This act incorporated several other acts that had been introduced in previous congressional sessions. One component, dubbed the Artists' Rights and Theft Prevention Act of 2005, renders the unauthorized use of a video camera at a movie theater an offense punishable by a term of imprisonment. A second component, called the Family Movie Act of 2005, clarifies that those who alter movies to remove objectionable content are not liable to copyright owners. This statute protects companies that edit movies to remove or alter scenes on DVD movies such that families can watch the films without having to watch or listen to objectionable scenes.
Applicants seeking copyright protection for their works must establish that the works are original and have been reduced to "tangible medium of expression." (see 17 U.S.C. § 102[a]). The phrase, "tangible medium of expression," means that the work must be reduced to some concrete form, as when something is written on a piece of paper, recorded on an audiotape, captured on a videotape, or stored on a computer disk or hard drive.
"Originality" does not mean "novelty" for the purposes of copyright law. It simply means that the work in question is the work of the person seeking copyright protection and not the creation of a third-party from whom the work was copied. The law allows for old works to be recreated with new themes or characters, adapted to new settings, or updated with fresh data so long as the new variation is something more than trivial and reflects the creator's contribution. However, courts will not sit in judgment of a work's artistic merits or aesthetic qualities.
Copyright protects the expression of an idea but not the idea itself. Concepts, plots, procedures, processes, systems, methods of operation, principles, and discoveries are thus not copyrightable until they have been reduced to some tangible form, no matter how original they might be. Nor is everything that has been reduced to a tangible form eligible for copyright protection. Words, phrases, slogans, blank forms, phone listings, and standard calendars will not receive copyright protection without proof that the originator contributed something new to the work. However, a reproduction of an original copyrighted work constitutes a violation of copyright law. Thus, one commercial entity may not simply reproduce another entity's phone directory without running afoul of copyright law. But each entity is free to gather the same facts and arrange them in nearly the same manner, so long as both entities invest some original labor.
Registration of copyright requires applicants to record the existence of authored works and the identity of their authors with the Copyright Office in the Library of Congress. Copyright deposit involves placing the work in its written, recorded, or other physical form with the same office. Notice of copyright means marking the authored work with the word "Copyright," the abbreviation "Copr.," or the letter "C" in a circle, along with the year of first publication and the name of the copyright owner.
For nearly two centuries after the U. S. Constitution was ratified by the states, several major copyright acts required that applicants register and deposit their works with a federal district court or the Library of Congress before a copyright could be enforceable. The Copyright Act of 1976 eliminated these requirements, giving authors exclusive federal copyright protection from the moment they reduce their work to a tangible medium of expression.
Nonetheless, registration, deposit, and notice still have significant legal and practical consequences. Copyright owners may not sue for infringement unless they have first registered the copyright (see 17 U.S.C. §§ 411, 412). Although deposit is not a precondition to bringing a suit for infringement, federal law requires that two copies of a published work be deposited within three months of publication, and failure to deposit a copy after it has been demanded by the Copyright Office is a criminal offense punishable by a fine. Notice provides immediate warning that a work is protected by copyright and may help stave off legal disputes with potential infringers.
The author of an original work is the copyright owner, except in the case of a "work for hire." A work for hire can arise in two situations: (1) when an employee creates a work within the scope of his or her employment; (2) when two parties enter a written agreement designating the work as a work for hire and the work falls within certain categories designated by copyright law. If a work qualifies as a work for hire, the employer owns the copyright and enjoys the same rights of copyright ownership as if the employer had created the work itself. If a work does not qualify as a work for hire, then the employee who authored the work retains copyright ownership and transfer of the copyright can only be accomplished through a written assignment of copyright.
Copyright affords an author of an original work five exclusive rights: (1) to reproduce or copy the work; (2) to prepare new works that derive from the copyrighted work; (3) to distribute the work to the public by sale or other arrangement; (4) to perform the work publicly; and (5) to display the work publicly. The last three rights are infringed only when violated publicly, that is, before a "substantial number of persons" outside family and friends (see 17 U.S.C. § 101). The first two rights are infringed whether violated in public or in private. In general, copyright of popular works can be extremely lucrative for the owner, since it includes the right to any profits from dramatizations, abridgements, and translations. It also includes the right to sell, license, or transfer one or more of the exclusive rights afforded by copyright law.
Protection from copyright infringement for works created after 1977 extends throughout the life of the author who created the original work, plus 50 years after the author's death (see 17 U.S.C. § 302[a]). When an original work is joint-authored, the copyright expires 50 years after the death of the last surviving author. Copyright is considered personal property that may be transferred to the author's heirs upon his or her death. For works created prior to 1977, the duration of ownership depends upon the law that was in effect at the time a work was created. In many cases, original works were protected for only 28 years and have long since passed into the public domain, unprotected by U. S. copyright law.
Copyright infringement is the violation of any exclusive right held by the copyright owner. Infringement may be intentional or unintentional. Often called "innocent infringement," unintentional infringement occurs when an author creates an ostensibly new work that later proves to be a mere reproduction of an existing work, though the author was unaware of the identity between the two at the time the copy was made. For example, former Beatle musician George Harrison was guilty of innocent infringement when he released the song "My Sweet Lord," which a court found was the same song as the Chiffons' "He's So Fine," only with different words. The court said that Harrison had "subconsciously" borrowed the Chiffons' unique motif (see Bright Tunes Music Corp. v. Harrisongs Music, Ltd., [S.D.N.Y. 1976]).
Fair use is a judicial doctrine that refers to a use of a copyrighted work that does not violate the exclusive rights of the copyright owner. Examples of fair use include the reproduction of original works for the purpose of criticism, comment, news reporting, teaching, scholarship, or research (see 17 U.S.C. § 107). Whether a particular use is "fair" depends on a court's application of the following factors: (1) the purpose and character of the use, including whether the 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 the copyrighted work, including the extent to which the use diminishes the economic value of the work. Courts have ruled that the fair use doctrine allows individuals to use video cassette recorders (VCRs) to tape television shows and movies for home use without fear of being sued for copyright infringement.
However, in a case closely watched by the public, the U. S. Court of Appeals for the Ninth Circuit ruled that the fair use doctrine does not allow an Internet service to store digital audio files of copyrighted sound recordings for downloading by service subscribers who pay no fee to the copyright owners (see A&M Records, Inc. v. Napster, Inc., [9th Cir. 2001]). Recognizing that the individual subscribers were mostly high school and college students downloading the music for personal consumption, the court still found that the purpose and character of their use was commercial in nature. "Napster users get for free something they would ordinarily have to buy," the court observed. The court said that Napster's service reduced audio CD sales among those students, thereby diminishing both the size of the copyright owners market and the value of the copyrighted work.
The recording and movie industries won another victory in 2005 when the U.S. Supreme Court ruled that an Internet file-sharing service named Grokster committed copyright infringement by providing a service that allowed users to share files directly with one another. Grokster argued that it was not liable because, unlike Napster, it did not store files on its own servers but rather only served as a medium to allow users to share directly with one another. The Court, in a unanimous decision in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster (2005), disagreed, ruling that this type of file sharing violated copyright laws. In November 2005, Grokster agreed to shut down its services until it could provide a legal service.
Copyright is valuable to the extent it protects an author's investment in an original work. Infringement directly injures the copyright owner by depriving the owner of the revenue that is generated by the infringer's work and indirectly injures the owner by softening demand for his work. A copyright owner who has been injured by an infringing work may file a law suit requesting one of two types of remedies. First, the owner may ask the court to grant an injunction ordering the offending party from continuing to infringe on the copyright. Or the owner may instead choose to receive statutory damages for the infringement, which range from as little as $100 for innocent infringement to as much as $50,000 for willful infringement.
Willful infringement is also a federal criminal offense, a misdemeanor punishable by a fine of up to $10,000 and up to a year in prison (see 17 U.S.C.A. § 506[a]). However, the law requires that the prosecution demonstrate that the infringement was willful and that it was for the purpose of "commercial advantage or private financial gain." Mass piracy of sound or motion picture recordings without permission of the copyright owner is a separate criminal offense, punishable by a fine of up to $250,000 and five years in prison under the Piracy and Counterfeiting Amendments Act of 1982 (see 18 U.S.C. § 2318).
Although copyright law is an area of law mostly governed by federal statute, certain state laws also related to copyright law. Most states have anti-bootlegging and anti-piracy statutes, many of which mirror corresponding federal statutes. The following is a description of state laws that relate to copyright:
ALABAMA: The state's anti-bootlegging statute and anti-piracy statute are both located in title 13A of the Alabama Code.
ALASKA: The state's anti-piracy statute is located in title 45 of the Alaska Statutes.
ARIZONA: The state's anti-bootlegging statute and anti-piracy statute are both located in title 13 of the Arizona Revised Statutes.
ARKANSAS: The state's anti-piracy statute is located in title 5 of the Arkansas Code.
CALIFORNIA: The state's anti-bootlegging statute and anti-piracy statute are both located in the California Penal Code.
COLORADO: The state's anti-piracy statute is located in title 18 of the Colorado Revised Statutes.
CONNECTICUT: The state's anti-piracy statute is located in title 53 of the Connecticut General Statutes.
DELAWARE: The state's anti-piracy statute is located in title 11 of the Delaware Code.
DISTRICT OF COLUMBIA: The anti-bootlegging statute and anti-piracy statute are both located in title 22 of the D.C. Code.
FLORIDA: The state's anti-bootlegging statute and anti-piracy statute are both located in chapter 540 of the Florida Statutes.
GEORGIA: The state's anti-piracy statute is located in title 16 of the Georgia Code.
HAWAII: The state's anti-piracy statute is located in chapter 482C-1 of the Hawaii Revised Statutes.
IDAHO: The state's anti-piracy statute is located in title 18 of the Idaho Code.
ILLINOIS: The state's anti-bootlegging statute and anti-piracy statute are both located in chapter 720 of the Illinois Compiled Statutes.
INDIANA: The state's anti-bootlegging statute is located in title 35 of the Indiana Code.
IOWA: The state's anti-piracy statute is located in chapter 714 of the Iowa Code.
KANSAS: The state's anti-bootlegging statute and anti-piracy statute are both located in title 21 of the Kansas Statutes.
KENTUCKY: The state's anti-bootlegging statute and anti-piracy statute are both located in title 434 of the Kentucky Revised Statutes.
LOUISIANA: The state's anti-bootlegging statute and anti-piracy statute are both located in title 14 of the Louisiana Revised Statutes.
MAINE: The state's anti-piracy statute is located in title 10 of the Maine Revised Statutes.
MARYLAND: The state's anti-bootlegging statute and anti-piracy statute are both located in article 27 of the Maryland Code.
MASSACHUSETTS: The state's anti-bootlegging statute and anti-piracy statute are both located in chapter 266 of the Massachusetts Laws.
MICHIGAN: The state's anti-bootlegging statute and anti-piracy statute are both located in chapter 752 of the Michigan Compiled Laws.
MINNESOTA: The state's anti-piracy statute is located in chapter 325E of the Minnesota Statutes.
MISSISSIPPI: The state's anti-bootlegging statute and anti-piracy statute are both located in title 97 of the Mississippi Code.
MISSOURI: The state's anti-bootlegging statute and anti-piracy statute are both located in chapter 570 of the Missouri Revised Statutes.
MONTANA: The state's anti-bootlegging statute and anti-piracy statute are both located in title 30 of the Montana Code.
NEBRASKA: The state's anti-piracy statute is located in chapter 28 of the Nebraska Revised Statutes.
NEVADA: The state's anti-piracy statute is located in chapter 205 of the Nevada Revised Statutes.
NEW HAMPSHIRE: The state's anti-bootlegging statute and anti-piracy statute are both located in chapter 352-A of the New Hampshire Revised Statutes.
NEW JERSEY: The state's anti-bootlegging statute and anti-piracy statute are both located in title 2C of the New Jersey Statutes.
NEW MEXICO: The state's anti-bootlegging statute and anti-piracy statute are both located in chapter 30 of the New Mexico Statutes.
NEW YORK: The state's anti-bootlegging statute and anti-piracy statute are both located in the New York Penal Law.
NORTH CAROLINA: The state's anti-bootlegging statute and anti-piracy statute are both located in chapter 14 of the North Carolina General Statutes.
NORTH DAKOTA: The state's anti-bootlegging statute and anti-piracy statute are both located in title 47 of the North Dakota Century Code.
OHIO: The state's anti-piracy statutes are located in chapters 1333 and 2913 of the Ohio Revised Code.
OKLAHOMA: The state's anti-bootlegging statute and anti-piracy statute are both located in title 21 of the Oklahoma Statutes.
OREGON: The state's anti-bootlegging statute and anti-piracy statute are both located in chapter 164 of the Oregon Revised Statutes.
PENNSYLVANIA: The state's anti-bootlegging statute and anti-piracy statute are both located in title 18 of the Pennsylvania Statutes.
RHODE ISLAND: The state's anti-bootlegging statute and anti-piracy statute are both located in title 6 of the Rhode Island General Laws.
SOUTH CAROLINA: The state's anti-bootlegging statute and anti-piracy statute are both located in title 16 of the South Carolina Code.
SOUTH DAKOTA: The state's anti-piracy statute is located in title 43 of the South Dakota Codified Laws.
TENNESSEE: The state's anti-bootlegging statute and anti-piracy statute are both located in title 39 of the Tennessee Code.
TEXAS: The state's anti-bootlegging statute and anti-piracy statute are both located in the Texas Business and Commerce Code.
UTAH: The state's anti-piracy statute is located in title 13 of the Utah Code.
VIRGINIA: The state's anti-bootlegging statute and anti-piracy statute are both located in title 59.1 of the Virginia Code.
WASHINGTON: The state's anti-bootlegging statute and anti-piracy statute are both located in title 19 of the Washington Revised Code.
WEST VIRGINIA: The state's anti-bootlegging statute and anti-piracy statute are both located in title 61 of the West Virginia Code.
WISCONSIN: The state's anti-bootlegging statute and anti-piracy statute are both located in chapter 943 of the Wisconsin Statutes.
WYOMING: The state's anti-bootlegging statute and anti-piracy statute are both located in title 40 of the Wyoming Statutes.
American Jurisprudence. West Group, 1998
Copyright Law in Business and Practice. Hazard, John W., Jr., West Group, 1998.
Intellectual Property and Unfair Competition in a Nutshell, 5th Edition. McManis, Charles R., Thomson/West, 2004.
West's Encyclopedia of American Law, 2nd Edition. Thomson/Gale, 2004.
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Copyright has been a source of contention in the United States nearly from the moment the first law went into effect in 1791. One of the primary sources for this ongoing debate is the constitutional amendment authorizing the law. The framers called for copyright "to promote the Progress of Science and the useful Arts, by securing for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries" (Leaffer, p. 6). The language appears to grant primacy to the public welfare, "the Progress of Science and the useful Arts," over the rights of the individual creator. This has led to an ongoing struggle between those who champion the literary property rights of the individual and proponents of the "public good" who call for a more narrowly defined law of shorter duration.
Subsequent legislation and jurisprudence have addressed numerous questions emerging from the expansion of print culture in the United States, including the precise length of the "limited Times" of copyrights, the exact nature of the works that are protected, and whether or not the law should extend to cover the works of creators from other nations. While arguments regarding different facets of copyright continue in the early twenty-first century, public debate and activism were particularly prominent in the late nineteenth century as authors, printers, publishers, and readers struggled over the creation of an "international copyright law," a law that would protect the works of writers from abroad. Proponents of such a law argued that it was both a matter of justice and of encouraging the profession of authorship in the United States by leveling the playing field. This could only happen, they argued, if publishers were discouraged from reprinting popular foreign novels without payment or permission. Opponents claimed that it would limit poor readers' access to inexpensive texts and hurt American book manufacturing, all to serve the financial interests of coddled British writers.
AFTER THE WAR: THE REEMERGENCE OF THE COPYRIGHT BATTLE
Various pieces of copyright legislation had been debated and enacted in Congress or sent to an early grave in committee throughout the first half of the nineteenth century, but the issue largely disappeared as the nation grappled with the upheaval of the Civil War. Not long after the conclusion of the war, however, copyright once again emerged as a topic of debate. A number of senators presented petitions and called for the consideration of the subject. The rhetoric of the public debate turned heated with the publication of a second edition of an influential tract, Letters on International Copyright (1868). Its author, a prominent publisher named Henry C. Carey (1793–1879), took aim at legislation granting rights to foreign writers while simultaneously criticizing American writers' pursuit of stronger laws for their own works. In his new preface, Carey described the matter as a conflict between the monopolistic desires of a few authors and the democratic interests of the American public: "On the one side, there will be found a few thousand persons interested in maintaining the monopolies that had been granted to authors and publishers, foreign and domestic. On the other, sixty or eighty millions, tired of taxation and determined that books shall be more cheaply furnished" (p. 14). Carey seems to have rereleased his book in order to turn the tide against international copyright once again, for that same year the Committee on the Library in the House of Representatives produced a report favoring the creation of such a law. While the report claimed that it would be "an act of national justice and honor" (U.S. Congress, U.S. House, Committee on the Library, p. 1), Congress took no action.
Despite this setback, authors did gain a victory in 1870 with the passage of a bill granting them copyrights for translations of their work and for dramatic adaptations. As such a law would suggest, the exact nature of literary property was still a source of contention. Authors and their advocates tried to argue that texts were like any other piece of property. In a response to Carey's Letters, Stevenson Archer, a representative from Maryland, published a speech he gave on international copyright in 1872. As he stated, "The simple truth is, the author has a right, an absolute right, in his books, precisely such as he has in his house or his land" (p. 9). While proponents of copyright had made similar arguments for many years, they never gained much traction during the nineteenth century. Indeed, in spite of its supporters' best efforts, the international copyright bill proposed in 1872 fared no better than the earlier measures, this time even receiving an unfavorable report from the Joint Committee on the Library in 1873. In the years following the Civil War, the battle over copyright would continue to preoccupy Congress and the nation's writers and publishers.
If authors were considered either victims or greedy monopolists, then the publishers who took advantage of the gaps in American copyright law were either the heroes of the underprivileged reading class or the immoral "pirates" of the book trade, seizing property that belonged to others. Throughout the nineteenth century, American writers bemoaned the fact that they were forced to compete with cheap reprints of well-known British authors. First Sir Walter Scott and then Charles Dickens became emblematic of the flood of foreign novels barring the progress of American literature. As the century progressed, the "piracy" of texts—reprinting them without permission from or compensation for the authors—was taking place on both sides of the Atlantic. While this began with works by James Fenimore Cooper and greatly accelerated with the success of Harriet Beecher Stowe's Uncle Tom's Cabin (1852), it was a considerable trade by the 1880s, and readers in England were enjoying inexpensive editions of popular American works. Unlike the United States, Great Britain did allow foreign authors to secure copyright, but it required that authors be on British soil when the work was first published in the country. While authors such as Mark Twain (1835–1910) and Harriet Beecher Stowe (1811–1896) spent time traveling to Canada to meet this requirement, it posed a considerable financial and logistical burden. As many authors pointed out, it also made it nearly impossible for an unknown writer to secure copyright for a first work. As difficult as this hurdle was, British authors had no available option in the United States, and there were several American publishers willing to take advantage of this fact.
Of course, whether or not this constituted any sort of "piracy" depended on where one stood. In testimony before Congress in 1886, one publisher who reprinted the Encyclopaedia Britannica proudly declared of his firm, "We are what these gentlemen call 'pirates,' and I have got the black flag up now" (U.S. Congress, U.S. Senate, Committee on Patents, p. 82). In his eyes, the push for international copyright was "the clamor of two hundred authors against the interests of fifty-five millions of people" (p. 74). This pitting of the minority against the majority was a common feature of opposition to stronger copyright laws. When Congress refused to consider international copyright in 1873, the Joint Committee on the Library concluded that it would be "not only an unquestionable and permanent injury to the manufacturing interests in producing books, but a hinderance to the diffusion of knowledge among the people and to the cause of universal education" (Morrill, p. 8). Far from pirates, those publishers who reprinted foreign works without compensating their authors presumed to serve democratic ideals and to aid national industry.
Authors were inclined to take a different view of the matter. William Cullen Bryant declared, "[The author] enters the great forest of ideas, which is common ground, hews down trees, shapes them into articles of furniture, or builds a house with them, and he who takes from him that furniture is a thief, and he who breaks into that house is a burglar" (International Copyright, p. 14). It was common for authors to equate unauthorized reprinting as theft, but even the strongest supporter had to concede that in many cases there was nothing strictly illegal about "piracy." In his article "American Authors and British Pirates" (1887), the author Brander Matthews—one of the founders of the influential American Copyright League—conceded: "At bottom, the publishers, good or bad, are not to blame; it is the condition of the law which is at fault. While men are legally permitted to make money by seizing the literary property of others, some will yield to temptation, and take what is not theirs to take" (p. 212). Pirates were a legal part of the nineteenth-century book trade.
THE AMERICAN COPYRIGHT LEAGUE
Given the nature of the debate, it is not surprising that throughout the efforts to strengthen copyright laws, authors and like-minded publishers banded together to show their support for change. Such a process had begun with a memorial signed by prominent writers and delivered to Congress by Henry Clay in 1837 and was given more formal shape in the 1840s with the American Copyright Club, an organization headed by William Cullen Bryant (1794–1878). This later became the International Copyright Association in 1868. By far the most energetic iteration of these groups, and ultimately the most successful, was the American Copyright League. Begun in 1883, it was headed by James Russell Lowell (1819–1891), who penned this motto:
In vain we call old notions fudge,
And bend our conscience to our dealing;
The ten commandments will not budge
And stealing will continue stealing.
(Matthews, These Many Years, p. 225)
Its secretary was publisher George Haven Putnam (1844–1930), who picked up the torch carried by his father, the prominent publisher and magazine editor George Palmer Putnam. Putnam was one of the few publishers to support the cause from its early days. The league was active in lobbying the American people as well as the government. It produced a number of publications, including even a sermon written by the member and clergyman Henry Van Dyke in 1888, The National Sin of Literary Piracy. The organization counted among its members Henry James, William Dean Howells (1837–1920), and nearly every other prominent living author. A pamphlet published by the league included statements from Louisa May Alcott, Rebecca Harding Davis, and Frederick Douglass. Authors gave public readings of their works to raise awareness and to raise funds to support their efforts throughout the 1880s.
Of course, some of the league's most important work was done before Congress. It threw its support behind a bill presented by Senator Joseph Hawley of Connecticut in 1885 that called for establishing reciprocal copyrights: foreign authors would receive the same copyright protections provided American citizens if their nations extended the same rights its citizens enjoyed to American authors. In November, Twain and two other members of the league met with President Grover Cleveland; Twain wrote in his notebook on 19 November, "I ventured to urge him to make I.C. the child of his administration, & nurse it & raise it" (p. 211). The president evidently paid some attention, for he included a call for action on international copyright in his address to Congress in December 1885 (Solberg, p. 24).
In 1886, as the Senate Committee on Patents turned to consider the Hawley bill, it also had another measure to consider. The Chace bill, supported by a number of publishers, printers, and typesetters, allowed for copyright protection of foreign works provided they were printed and manufactured in the United States; in other words, it forced authors to make arrangements for American publication, and it barred the importation of foreign works. This "manufacturing clause," as it became known, was a major source of contention for the American Copyright League, who feared that it ensnared a measure designed to protect authorial rights in a debate on protectionism.
Supporters of both bills, as well as opponents of any new measure, appeared before the Senate committee in 1886, and the league sent some of its most prominent members, including Mark Twain and James Russell Lowell. Their case was a difficult one, given the competing bills, and it was complicated further by Twain's surprising remarks. After first acknowledging that he was hesitant to speak in opposition to the league, he went on to say:
I should like to see a copyright bill passed here which shall do no harm to anybody concerned in this matter, and a great many more people are concerned in it than merely the authors. In fact I suppose, if the truth is confessed, the authors are rather less concerned pecuniarily in any copyright measure than many other people—publishers, printers, binders, and so on. The authors have one part in this matter, but theirs is the larger part. (U.S. Congress, U.S. Senate, Committee on Patents, pp. 15–16)
Twain's comments not only parted from the consistent message of the league but seemed to minimize copyright's importance to authors. Subsequent speakers for the bill attempted to address Twain's remarks and to argue in favor of the law, but they were unsuccessful, and supporters were forced to wait yet again.
"INTERNATIONAL COPYRIGHT" AT LAST: THE ACT OF 1891
The "manufacturing clause" eventually proved to be the secret to producing a bill that Congress would accept. When Putnam testified before the House Committee on the Judiciary in 1890, he announced that the American Copyright League now included not only authors but also members of those trades that had once opposed it:
The league . . . now comprises in addition to the authors . . . nearly all the publishing firms in the country, representatives of the typographers, who are authorized to speak for the National Typographical Union, representatives of the Typothetae, authorized to speak for the National Union of Employing Printers, representatives of the National Association of Librarians, representatives of the press syndicates, and a large number of representatives of the general public, whose co-operation in the attempt to secure adequate recognition for literary property is entirely unconnected with any direct interest in the business of writing, making, or selling books. (U.S. Congress, U.S. House, Committee on the Judiciary, pp. 28–29)
Although some smaller publishers and trade groups continued to protest, they were no match for the unified effort, and Congress passed the bill on 3 March 1891. Foreign authors were finally granted the same rights as American authors in the United States, provided they manufactured their books in the country and so long as their own nations provided reciprocal rights. These were no small obstacles for some writers, and the publication requirement served to keep the issue of establishing a copyright that was truly international in more than name a pressing concern. Over the next few years, there was continued agitation for the United States to revise its laws in this regard. The United States did join the Buenos Aires Convention in 1914, allowing for reciprocal copyrights with several Latin American countries, but efforts to go beyond this failed for many years.
The bill was a moment of triumph after a long struggle, however. When it passed, Walt Whitman remarked to a friend: "We have our international copyright at last—the bill is signed today. The United States, which should have been the first to pass the thing, is the last. Now all civilized nations have it. It is a question of honesty—of morals—of a literature, in fact" (Traubel, pp. 54–55). For American writers, the bill had always been tied to the idea of a national literature, and its passage meant that they could now compete on an even footing in the marketplace. This was not the end of their efforts, of course. There were still other issues to address, particularly the matter of duration of copyrights and new forms of recording and transmitting works, but the Copyright Act of 1891 was an important milestone in American literary history.
BACK TO THE DRAWING BOARD: THE COPYRIGHT ACT OF 1909
In 1831 Congress amended the copyright law to extend copyright from fourteen to twenty-eight years, with the possibility for renewal for another fourteen years at the conclusion of the first term. For authors who felt that literary property should be treated the same as real estate or any other product of labor, this limitation was unacceptable. As Howells noted:
If property in houses or lands—which a man may get by dishonest trickery, or usury, or hard rapacity—were in danger of ceasing after forty-two years, the whole virtuous community would rouse itself to perpetuate the author's right to the product of his brain, and no griping bidder at tax-sales but would demand the protection of literature by indefinite copyright. (Budd, p. 151)
Throughout most of the nineteenth century, the issue of international copyright had occupied advocates of stronger literary property rights, but with that issue at least partially addressed, the question of duration came to the forefront. The 1909 revision of the copyright law extended the term of the renewal to twenty-eight years, allowing for the possibility of a fifty-six-year copyright: the "limited times" set forth in the Constitution were growing less limited, a trend that would continue throughout the twentieth century.
There was one other major aspect of the revision that, in retrospect, seems a harbinger for things to come. The law for the first time allowed for recording and mechanical reproduction rights, reflecting the emerging audio and visual technologies. The provision itself was aimed primarily at protecting the rights of composers whose scores were being copied onto piano rolls, but it represented one of the first clear indications of how copyright law would have to be continually modified to adapt to new modes of reproducing and transmitting texts. Along with the extension of the length of protection, these two changes in the laws of literary property signaled the new era of copyright struggles that continues in the early twenty-first century.
Archer, Stevenson. International Copyright. Speech of Hon.Stevenson Archer, of Maryland, Delivered in the House of Representatives, March 23, 1872. Washington, D.C.: F. and J. Rives and Geo. A. Bailey, 1872.
Carey, H. C. Letters on International Copyright. 2nd ed. New York: Hurd and Houghton, 1868.
International Copyright. Meeting of Authors and Publishers, at the Rooms of the New York Historical Society, April 9, 1868, and Organization of the International Copyright Association. New York: International Copyright Association, 1868.
Matthews, Brander. "American Authors and British Pirates." New Princeton Review 4, no. 5 (1887): 201–212.
Matthews, Brander. These Many Years: Recollections of a NewYorker. New York: Scribners, 1917.
Morrill, Lot Myrick. International Copyright. U.S. 42nd Cong., 3rd sess. S. Rept. 409. Washington, D.C.: Government Printing Office, 1873.
Traubel, Horace, ed. With Walt Whitman in Camden. Vol. 8. Edited by Jeanne Chapman and Robert MacIsaac. Oregon House, Calif.: Bentley, 1996.
Twain, Mark. Mark Twain's Notebooks and Journals. Vol. 3, 1883–1891. Edited by Robert Pack Browning, Michael B. Frank, and Lin Salamo. Berkeley: University of California Press, 1979.
U.S. Congress. U.S. House, Committee on the Library. Report [To accompany bill H. R. No. 779]. 40th Cong., 2nd sess. Rept. 16. Washington, D.C.: Government Printing Office, 1868.
U.S. Congress. U.S. Senate, Committee on Patents. International Copyright. 49th Cong., 1st sess. S. no. 161. Washington, D.C.: Government Printing Office, 1886.
U.S. Congress. U.S. House, Committee on the Judiciary. Testimony before the House Committee on the Judiciary on International Copyright. Washington, D.C.: Government Printing Office, 1890.
Van Dyke, Henry. The National Sin of Literary Piracy: ASermon Preached by Henry Van Dyke, D.D. New York: Scribners, 1888.
Budd, Louis J. Mark Twain: The Contemporary Reviews. American Critical Archives 11. Cambridge, U.K.: Cambridge University Press, 1999.
Leaffer, Marshall. Understanding Copyright Law. New York: Matthew Bender, 1999.
Solberg, Thorvald. "International Copyright in Congress, 1837–1886." In Copyright Miscellany. Boston: John W. Luce, 1939.
U.S. Congress. Copyright Law Revision. Washington, D.C.: Government Printing Office, 1960.
Martin T. Buinicki
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.
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.
Barlow, John Perry. (1994). "The Economy of Ideas."Wired 2.03:84.
Bettig, Ronald. (1996). Copyrighting Culture. Boulder, CO: Westview Press.
Boyle, James. (1996). Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge, MA: Harvard University Press.
Ginsburg, Jane. (1995). "Putting Cars on the 'Information Highway': Authors, Exploiters, and Copyright in Cyberspace." Columbia Law Review 95:1466-1499.
Goldstein, Paul. (1994). Copyright's Highway: From Gutenberg to the Celestial Jukebox. New York: Hill and Wang.
Gordon, Wendy. (1993). "A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property." Yale Law Journal 102:1533-1609.
Jackson, Matt. (2000). "The Digital Millennium Copyright Act of 1998: A Proposed Amendment to Accommodate Free Speech." Communication Law & Policy 5:61-92.
Landes, William M., and Posner, Richard A. (1989). "An Economic Analysis of Copyright Law." Journal of Legal Studies 18:325-363.
Leaffer, Marshall. (1995). Understanding Copyright Law, 2nd edition. New York: Matthew Bender.
Litman, Jessica. (1989). "Copyright Legislation and Technological Change." Oregon Law Review 68:275-361.
Litman, Jessica. (1996). "Revising Copyright Law for the Information Age." Oregon Law Review 75:19-48.
Patterson, L. Ray. (1968). Copyright in Historical Perspective. Nashville, TN: Vanderbilt University Press.
Saunders, David. (1992). Authorship and Copyright. London: Routledge.
Stewart, Stephen. (1989). International Copyright and Neighbouring Rights, 2nd edition. London: Butter-worths.
Copyright includes not only the right to make copies of a work—called the right of reproduction—it 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.
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 code—but 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.
Davis, Randall. "The Digital Dilemma." Communications of the ACM, 44, no. 2 (2001) 77–83.
Miller, Arthur R., and Michael H. Davis. Intellectual Property in a Nutshell. St. Paul, MN: West Publishing, 2000.
An intangible right 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 the person to make copies of the same for publication and sale.
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster
In a widely followed copyright case, the U.S. Supreme Court held on June 27, 2005, that a company that provides a peer-to-peer Internet file sharing program could be held liable for copyright infringement that occurs through the use of the company's software. The case is expected to have a major effect on the development of technology that could be used in a manner that facilitates copyright infringement.
The case focuses on the application of the rule announced in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), also known as the Betamax case. In that case, the entertainment industry sought to hold Sony liable for selling video cassette recorders (VCRs), which could be used to record copyrighted movies. The U.S. Supreme Court held that where a product is capable of "substantial" or "commercially significant non-infringing uses," then the company that manufactured the product could not be held liable for what is known as "contributory copyright infringement." Thus, even if owners of VCRs used Sony's product in a manner that constituted infringement, Sony was not liable because the product was capable of other non-infringing uses.
The Betamax has served as the standard for determining the liability of companies that produce technology that is capable of allowing users to commit copyright infringement. However, a later decision appeared to have turned the tides in favor of the music and entertainment industry. In 1999, a college student named Shawn Fanning created Napster, which allowed users to share music files over the Internet. Several music companies sued Napster, arguing that it was liable because subscribers could use Napster's centralized servers in order to download the music files. The case reached the U.S. Court of Appeals for the Ninth Circuit in 2001, and the court enjoined Napster from operating its system. A & M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).
Shortly after Napster closed down due to the injunction, several other services developed software that allowed users to share files in a manner similar to Napster. These companies, which included Grokster and StreamCast Networks, Inc., distributed software that permitted users to share files directly with one another. The distinction between the services offered by Napster and those later offered by the newer services was that the latter did not rely on centralized servers to permit the file sharing. Instead, users connected directly with one another. The companies made money by selling advertisements that are included in the software. However, these companies had no control over the files that users exchanged through the use of the software.
Companies in both the music industry and the motion picture industry brought suit against StreamCast and Grokster, seeking to have these services closed by the U.S. District Court for the Central District of California. According to the plaintiffs, the trading of music and movie files on the Internet has caused a sharp decline in revenues. The plaintiffs argued that the Betamax rule should not apply to file-sharing services in the same manner as manufacturers of VCRs. According to the plaintiffs, copyright infringement accounts for 90 percent of the activities occurring via these services.
U.S. District Judge Stephen V. Wilson disagreed. He found no distinguishable difference between the defendants' services and the activities of manufacturers of VCRs and photocopiers. He reviewed the decision of the Ninth Circuit in the Napster case, noting that unlike Grokster and StreamCast, Napster had "provided a network—the 'site and facilities' for the infringement to take place." Accordingly, the court found that "the critical question is whether Grokster and StreamCast do anything, aside from distributing software, to actively facilitate—or whether they could do anything to stop—their users' infringing activity." The court concluded that these companies did neither, and it held in favor of the defendants. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 259 F. Supp. 2d 1029 (C.D. Cal. 2003).
The plaintiffs appealed the decision to the Ninth Circuit, which heard arguments on February 3, 2004. Like the district court, a panel of the Ninth Circuit held in favor of Grokster and StreamCast. The court, in an opinion written by Judge Sidney R. Thomas, determined that these services did not have actual knowledge of copyright infringement by those who used the software. Moreover, these companies had neither the right nor the ability to supervise users who committed copyright infringement. Because both of these factors were necessary in order for the plaintiffs to prove contributory copyright infringement, the court ruled in favor of the defendants. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 380 F.3d 1154 (9th Cir. 2004).
The decision of the Ninth Circuit ran counter to an opinion issued by the Seventh Circuit in 2003. In the earlier case, record companies had sought to close down a site known as Aimster, which provides services that are similar to those of Grokster and StreamCast. Like Grokster and StreamCast, Aimster's service did not store the files themselves on a centralized server. The Seventh Circuit, in an opinion by Judge Richard Posner, read the rule from the Sony differently from the Ninth Circuit's interpretation and determined that Aimster's service violated copyright laws. The Seventh Circuit thus affirmed an injunction against the Aimster service. In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003).
The plaintiffs filed a petition for writ of certiorari on October 8, 2004. The U.S. Supreme Court granted the petition on December 10. The case garnered a great deal of attention, including the filing of more than 50 amicus curiae briefs. Among the briefs supporting the entertainment industry's position was one filed by acting U.S. Solicitor General Paul D. Clement. In his brief, Clement wrote, "The evidence suggests that the respondents have developed vast networks of members whose only common characteristic is apparently their desire to download copyrighted music and movie files without paying for them."
Several companies, including Microsoft Corp., Yahoo, Inc., Google, Apple Computer Inc., and American Online, Inc., filed briefs as neutral parties. These companies indicated that while they do not support illegal file sharing, they do not believe that the solution is to broaden secondary copyright liability. Several advocates and commentators suggested that the proper entity to handle infringement taking place through file sharing is Congress, rather than the courts.
By a unanimous vote, the Supreme Court vacated the Ninth Circuit's decision. Writing for the Court, Justice David Souter noted that most of the evidence in the case indicated that the purpose behind Grokster and StreamCast was to provide a means through which users could share files illegally. The companies thus went beyond mere distribution of their product and took steps to foster the infringement. Souter stated that the Ninth Circuit had misread Sony as establishing a rule that a producer of a product cannot be held liable for infringing use of the product when the product is capable of other lawful uses. To the contrary, Souter wrote, other evidence that that the producer of such a product intended for the product to be used for infringing uses can give rise to liability. Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., __ U.S. __, __ S. Ct. __, __ L. Ed. 2d __, 2005 WL 1499402 (2005).
The actions of Grokster and StreamCast clearly indicated an intent on the part of the companies to promote infringement, according to the Court. The Court identified three types of evidence that were particularly relevant to the inquiry. First, the companies identified themselves as a source for demand for copyright infringement by marketing themselves to former Napster users. Second, neither company established any sort of tool that would filter copyrighted material from passing through their software. Lastly, both companies profited from the use of their software because the companies sold advertisements with their software. Thus the companies had a financial incentive to increase the number of users. Based on the amount of evidence supporting MGM's claims, the Court determined that the lower court's summary judgment in favor of the defendants was improper. Accordingly, the Court vacated the Ninth Circuit's decision and remanded the case for further consideration.
The Framers of the Constitution delegated to the national government authority to enact copyright laws. The copyright power, together with the patent power, is found in Article I, section 8, clause 8, which 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." Because there is no record of any debate on this clause at the constitutional convention of 1787, and mention of it in the federalist is perfunctory, the meaning of the clause must be found in case law.
The phrase "to promote the progress of science" states what the Supreme Court, in Mazer v. Stein (1954), described as "the economic philosophy behind the clause," which is "the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors.…" Most courts, however, would deny that the introductory phrase permits the denial of copyright to any particular work on the ground that it does not contribute to such "progress." In fact, a United States Court of Appeals held in 1979 that obscene content does not invalidate copyright.
The words "by securing" came into contention in Wheaton v. Peters (1834), the first important copyright case decided by the Supreme Court, and a case involving two of the Court's own reporters. The plaintiff there argued that the federal copyright statute merely added additional remedies to a right that already existed at common law. To bolster this position, he argued that the word "secure" meant to protect, insure, save, and ascertain, not to create. The Court rejected this contention, holding that the federal statute had created a new right, but that the author had not complied with the act's conditions.
Because the clause contains the words, "for limited times," a federal copyright statute that purported to grant copyright protection in perpetuity would clearly be unconstitutional. So too would a term that is nominally "limited" but is in fact the equivalent of perpetual protection (for example, a one thousand year term). The term currently provided for newly created works, the life of the author plus fifty years, conforms with the "limited times" requirement.
Only "authors" may be granted copyright in the first instance, although, once granted, copyright is transferable by an author to others. The term "authors" in the Constitution gives rise to the "originality" requirement in the law of copyright, which excludes from copyright protection material copied from others. An author is no less an author because others have anticipated his work, as long as he did not copy from such others. This Judge Frank contrasted with an "inventor" under the patent power, who must by definition produce something "novel," that is, not anticipated in the prior art. By reason of the phrase "exclusive right," it is clear that Congress has the power to grant to authors the "exclusive right" to exploit their works. But Congress is under no compulsion to exercise its full powers under the Constitution. If it may withhold copyright protection altogether from a given category of works, it may also grant something less than exclusive rights. The phrase "to their respective writings" means that only "writings" may be the subject of copyright. But the concept of a "writing" for copyright purposes has been liberally construed. The Court has held that photographic portraits and sound recordings constitute a "writing." Indeed, in Goldstein v. California (1973), the Court defined "writings" as "any physical rendering of the fruits of creative intellectual or aesthetic labor." A work that has not been physically fixed is ineligible for copyright protection.
In Goldstein the Court held that the copyright power is not exclusive, so that, subject to the supremacy clause, the states retain concurrent power to enact copyright laws. Until adoption of the current Copyright Act in 1978 this reserved state power was significant, because most unpublished works were protected by so-called common law (or state law) copyright. However, under the current Copyright Act this area of state law has been largely preempted, so that most works, published or unpublished, are protected, if at all, under the federal act.
In recent years the courts have begun to question whether, and to what extent, the copyright laws are subject to the freedom of speech and freedom of the press guarantees of the first amendment. If the First Amendment were literally applied it would invalidate the Copyright Act, since the act clearly abridges the freedom of speech and press of those who would engage in copyright infringement by copying from others. Nothing in the First Amendment limits the freedom protected thereunder to speech that is original with the speaker. Nor does the fact that the Constitution also grants to Congress the power to enact copyright laws render the First Amendment inapplicable. The First Amendment and the remainder of the bill of rights limit only those powers that have otherwise been confided to the federal government. If it did not modify such powers, it would have no meaning at all. The conflict between these two socially useful, yet antithetical, interests is, of course, capable of resolution. The Ninth Circuit held in Krofft v. McDonald's Corp. (1977), and the Supreme Court implicitly agreed in Zacchini v. Scripps-Howard Broadcasting Co. (1977), that "ideas" lie in the domain of the First Amendment, so that copyright may not be claimed therein, but that the form of "expression" of ideas may be the subject of copyright, notwithstanding the First Amendment.
Melville B. Nimmer
(see also: Intellectual Property Law and the First Amendment.)
Nimmer, Melville B. 1978 Copyright. 4 Vols. Albany, N.Y.: Matthew Bender & Co.
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.
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.