The Rights of Copyright Owners

Copyright grants a limited monopoly to the creator of a work.  In the case of copyright, the monopoly is on making copies of the work, distributing them, public performance or display of the work, and creating derivative works.  The copyright holder is also the only one who can grant permission to others to perform these activities.

The actual language of the law is from Title 17 of the United States Code, section 106:

“Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1)  to reproduce the copyrighted work in copies or phonorecords;

(2)  to prepare derivative works based upon the copyrighted work;

(3)  to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4)  in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5)  in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

But remember, this is a limited monopoly.  The text above is from section 106, but all of the sections that come after (sections 107-122) describe the various limitations and exceptions to this monopoly.  Some of these, like fair use, we will discuss in detail in future weeks.

Purpose of Copyright

Understanding the purpose of copyright law will help illustrate why the limitations and exceptions to copyright are so important. The basis for all copyright law in the United States is the above clause in the Constitution.

At heart, the purpose of copyright is to encourage the creation of new works.  Rather than having centralized control and direction over what sort of works should be made, the founding fathers felt that a system that promoted the creation of many new works whose merits were then judged by the public was more advantageous.  More works  mean a greater cultural vibrancy and identity for the country and would drive more economic activity.

The thinking behind the idea of granting a monopoly is that a creator is much more likely to spend significant time and resources creating something new if they know that for a limited time they will be the only one who can copy, distribute and/or perform that work, enabling them to make money off of it.  Some people would and do create even without a monetary incentive, but there are some works, particularly those that require significant initial investment, that wouldn’t get made without the possibility of earning back that initial investment.

This incentive is very clearly seen when we think about big budget movies.  Imagine a world without copyright.  In this world, as soon as a movie is released anyone can make copies of it and distribute those copies to others.  Maybe a handful of tickets or a few DVDs get sold before there are so many copies floating around that no one will pay for them anymore.  In this world, no big budget movies would ever get made because there would be no chance that they would ever make back the money invested in their creation, let alone earn a profit for the studio or the actors.

The copyright incentive to create enables creators to profit from their intellectual work and is good for those of us who then get to enjoy the creations.

But this monopoly is only useful to the extent that it promotes the creation of new works.  No work is created in a vacuum.  Nearly every work that is created builds off of works that came before (parodies, satire, and commentary are a few key examples.)  An absolute monopoly that made no allowances for the reuse of previous works might prohibit as many creations as it encouraged.

Criteria for Copyright

The bar for copyright protections to exist in a given work is set pretty low:

#1: A work must be set down in a fixed format.  According to 17 USC 102, a work must be “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”  This means as soon as you scribble a poem on a napkin, snap a photograph or video, or hit save on your word document, this criteria is met.

#2: There must be some level of originality and creativity to the work, but again the bar is pretty low.    For example, this picture of a potato person qualifies.   If you have spent any time with toddlers, you know that they all draw nearly this same potato person at some point.   (Yes, the works of minors are copyrighted too, although they cannot enter into license agreements  without the permission of a parent or legal guardian.  While occasionally non human primates demonstrate sufficient creativity for copyright, they are not eligible to own property, intellectual or otherwise.)

That’s it.  Fixation, originality and creativity.  You automatically received copyright protection for every doodle you ever did in the margin of your notes, every photograph you’ve ever taken, every paper you’ve written, and every painting or drawing.  (The one possible exception to this is that if you did any work for an employer, the copyright in that work is likely to belong to the employer, but we’ll talk more about that in week 3.)

You do not have to formally publish a work to hold the copyright.  You do not have to register with the US Copyright Office to hold the copyright (although there are some benefits to doing so which we will discuss in week 3 as well.)  Copyright happens automatically whether you want it or not.  It might sound like an entirely good thing, but there are some drawbacks to this situation that we’ll touch on in week 4 when we discuss open licenses and orphan works.

What is Copyrightable, What is Not

Certain categories of things are not eligible for copyright.  Perhaps the most important category is that of ideas.  Copyright only applies only to the expression of an idea (the expression that is fixed in a tangible form per the first criteria above), not the idea itself.  For example the idea of star-crossed lovers, whose love is greater than the hatred their respective families feel for each other but ultimately results in their death, is not protected by copyright.  There are many ways to express this idea, for example in the sequence of words that makes up the play Romeo and Juliet.  But it was expressed in another way in the musical West Side Story.  This same idea was expressed even before Shakespeare penned Romeo and Juliet, in the play Pyramus and Thisbe by Ovid over 2000 years ago.  But each expression of this idea has its own value and is entitled to its own copyright protection (although West Side Story is the only one of the three still under copyright.)

Other categories that are not eligible for copyright include

• Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries (NOTE: patent law may apply to this category.)
• Titles, names, short phrases, and slogans (for example “Haters gonna hate“) (NOTE: trademark law may apply to this category.)
• Familiar symbols or designs  (NOTE: trademark law may apply to this category.)
• Mere variations of typographic ornamentation, lettering, or coloring
• Mere listings of ingredients or contents
• Works of the Federal Government per 17 USC 105 (The copyright status of works prepared by state governments is governed by the laws the individual states.  In most states the copyright status of state government works is ambiguous.)

Copyright is just one three kinds of intellectual property.  Trademarks and patents are the other two.  Trademarks protect marks that distinguish goods and services such as brand names, logos, and symbols.  Patents apply to new and useful inventions, granting the owner exclusive rights to make, use, or sell the invention.  While trademarks and patents are largely outside the scope of this class, it is useful to understand how they are different.  This video (3:16) about the difference between trademarks, patents & copyrights was produced in Canada, but is an accurate description of these concepts in the US.

But outside of these categories, nearly every format imaginable is eligible for copyright protection:

• literary works
• musical works, including any accompanying words
• dramatic works, including any accompanying music
• pantomimes and choreographic works
• pictorial, graphic, and sculptural works
• sound recordings
• architectural works
• computer programs (were considered “literary works” since 1964, and formally protected by law in 1976)
• engineered DNA sequences are even being considered for copyright protection (this is far from settled though)

Public Domain

The public domain refers to the body of works to which copyright never applied (for example works of the federal government) or in which the copyright has expired.

One main limitation on the copyright monopoly is that of time; copyrights do not last forever (although today they do last for a very long time).   The first copyright law in the United States granted a monopoly on copying and distributing textual works for a period of seven years, and if you cared enough to jump through a bunch of hoops, you could renew it for seven more.  But no matter what, after 14 years your monopoly expired and anyone could make and sell copies of your work.

The length of copyright terms have been extended many times since the first copyright law in 1790.  Today the copyright term for most works is the life of the author plus 70 years.  Lobbying by the Disney corporation as played a significant role in copyright extensions, but hopefully Mickey Mouse’s influence on copyright terms is over.  But even though copyright terms today are much longer than many people think they need to be (myself included) they do eventually expire, and works enter the public domain.

The version of copyright law that was in effect at the time that a work was created, usually determines the length of the copyright term for that work.  For example, any works published in the United States prior to 1923 are now in the public domain.   Figuring out the copyright status of a work published after 1923 and before 1989 is challenging, but there are some good websites online to help you out (for example this Copyright Slider).  Later in the course we’ll discuss in more detail how to determine the copyright status of a work.

However, for works in the public domain you are free to copy, distribute, perform, and adapt at will.  At Project Gutenberg you can download over 5000 public domain books in multiple formats.  The Public Domain Review is an interesting website for keeping up on what works are entering the public domain, and searching for (really weird and Halloween appropriate) stuff that people created back in the day.  A lot of material is slated to enter the public domain on January 1, 2019.