THE ARTICLE ABOUT COPYRIGHT AND OWNERSHIP LAWS
Not to be confused with Copywriting.
This article is about the legal right.
A copyright is
a type of intellectual property that
gives its owner the exclusive legal right to copy, distribute, adapt, display,
and perform a creative
work, usually for a limited time. The creative work may
be in a literary, artistic, educational, or musical form. Copyright is intended
to protect the original expression of an idea in the form of a creative work,
but not the idea itself. A copyright is subject to limitations based
on public interest considerations, such as the fair use doctrine
in the United States and fair dealings doctrine
in the United Kingdom.
Some
jurisdictions require "fixing" copyrighted works in a tangible form.
It is often shared among multiple authors, each of whom holds a set of rights
to use or license the work, and who are commonly referred to as rights
holders. These rights normally include reproduction, control over derivative
works, distribution, public
performance, and moral rights such as
attribution.
Copyrights
can be granted by public law and are in that case considered "territorial
rights". This means that copyrights granted by the law of a certain state
do not extend beyond the territory of that specific jurisdiction. Copyrights of
this type vary by country; many countries, and sometimes a large group of
countries, have made agreements with other countries on procedures applicable
when works "cross" national borders or national rights are
inconsistent.
Typically,
the public law duration
of a copyright expires 50 to 100 years after the
creator dies, depending on the jurisdiction.
Some countries require certain copyright formalities to
establishing copyright, others recognize copyright in any completed work,
without a formal registration. When the copyright of a work expires, it enters
the public
domain.
History
European output of books before the advent of copyright,
6th century to 18th century. Blue shows printed books. Log-lin plot; a straight line
therefore shows an exponential increase.
Background
The
concept of copyright developed after the printing press came
into use in Europe in the 15th and 16th centuries. It was associated
with a common law and rooted in the civil law system. The printing press
made it much cheaper to produce works, but as there was initially no copyright
law, anyone could buy or rent a press and print any text.
Popular
new works were immediately re-set and re-published by
competitors, so printers needed a constant stream of new material. Fees paid to
authors for new works were high and significantly supplemented the incomes of
many academics.
Printing
brought profound
social changes. The rise in literacy across Europe led
to a dramatic increase in the demand for
reading matter. Prices of reprints were low, so publications could be
bought by poorer people, creating a mass audience. In German-language markets
before the advent of copyright, technical materials, like academic papers and
handbooks, were inexpensive and widely available; it has been suggested this
contributed to Germany's industrial and economic success.
Conception
The
concept of copyright first developed in England. In reaction to the printing of
"scandalous books and pamphlets", the English Parliament passed
the Licensing of the Press Act 1662, which
required all intended publications to be registered with the
government-approved Stationers' Company,
giving the Stationers the right to regulate what material could be printed.
The Statute
of Anne, enacted in 1710 in England and Scotland, provided the
first legislation to protect copyrights (but not authors' rights). The Copyright Act 1814 extended
more rights for authors but did not protect British publications from being
reprinted in the US. The Berne International Copyright Convention of
1886 finally provided protection for authors among the countries who signed the
agreement, although the US did not join the Berne Convention until 1989.
In
the US, the Constitution grants Congress the right to establish copyright and
patent laws. Shortly after the Constitution was passed, Congress enacted
the Copyright Act of 1790,
modeling it after the Statute of Anne. While the national law protected
authors' published works, authority was granted to the states to protect
authors' unpublished works. The most recent major overhaul of copyright in the
US, the Copyright Act of 1976,
extended federal copyright to works as soon as they are created and
"fixed", without requiring publication or registration. State law
continues to apply to unpublished works that are not otherwise copyrighted by
federal law. This act also changed the calculation of copyright term from a
fixed term (then a maximum of fifty-six years) to "life of the author plus
50 years". These changes brought the US closer to conformity with the
Berne Convention, and in 1989 the United States further revised its copyright
law and joined the Berne Convention officially.
Copyright
laws allow products of creative human activities, such as literary and artistic
production, to be preferentially exploited and thus incentivized. Different
cultural attitudes, social organizations, economic models and legal frameworks
are seen to account for why copyright emerged in Europe and not, for example,
in Asia. In the Middle
Ages in Europe, there was generally a lack of any
concept of literary property due to the general relations of production, the
specific organization of literary production and the role of culture in
society. The latter refers to the tendency of oral societies, such as that of
Europe in the medieval period, to view knowledge as the product and expression
of the collective, rather than to see it as individual property. However, with
copyright laws, intellectual production comes to be seen as a product of an
individual, with attendant rights. The most significant point is that patent
and copyright laws support the expansion of the range of creative human
activities that can be commodified. This parallels the ways in which capitalism led
to the commodification of
many aspects of social life that earlier had no monetary or economic value
perse.
Copyright
has developed into a concept that has a significant effect on nearly every
modern industry, including not just literary work, but also forms of creative
work such as sound recordings, films, photographs, software,
and architecture.
National copyrights
The Statute of Anne (the Copyright
Act 1709) came into force in 1710.
Often
seen as the first real copyright law, the 1709 British Statute
of Anne gave authors and the publishers to whom they did
chose to license their works, the right to publish the author's creations for a
fixed period, after which the copyright expired. It was "An Act for
the Encouragement of Learning, by Vesting the Copies of Printed Books in the
Authors or the Purchasers of such Copies, during the Times therein
mentioned."
The
act also alluded to individual rights of the artist. It began:
"Whereas Printers, Booksellers, and other Persons,
have of late frequently taken the Liberty of Printing ... Books, and other
Writings, without the Consent of the Authors ... to their very great
Detriment, and too often to the Ruin of them and their Families:".
A
right to benefit financially from the work is articulated, and court rulings
and legislation have recognized a right to control the work, such as ensuring
that the integrity of it is preserved. An irrevocable right to be recognized as
the work's creator appears in some countries' copyright laws.
The Copyright
Clause of the United States, Constitution (1787)
authorized copyright legislation: "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." That is, by
guaranteeing them a period of time in which they alone could profit from their
works, they would be enabled and encouraged to invest the time required to
create them, and this would be good for society as a whole. A right to profit
from the work has been the philosophical underpinning for much legislation
extending the duration of copyright, to the life of the creator and beyond, to
their heirs. Yet scholars like Lawrence Lessig have argued that copyright terms
have been extended beyond the scope imagined by the Framers. Lessig refers to
the Copyright Clause as the "Progress Clause" to emphasize the social
dimension of intellectual property rights.
The
original length of copyright in the United States was 14 years, and it had to
be explicitly applied for. If the author wished, they could apply for a second
14‑year monopoly grant, but after that the work entered the public
domain, so it could be used and built upon by others.
Continental law
In
many jurisdictions of the European continent, comparable legal concepts to
copyright did exist from the 16th century on but did change under Napoleonic
rule into another legal concept: authors'
rights or creator's right laws,
from French: droits d'auteur and German Urheberrecht. In
many modern-day publications the terms copyright and authors' rights are being
mixed, or used as translations, but in a juridical sense the legal concepts do
essentially differ. Authors' rights are, generally speaking, from the
start absolute property rights of an author of original work that one does not
have to apply for. The law is automatically connecting an original work as
intellectual property to its creator. Although the concepts throughout the
years have been mingled globally, due to international treaties and contracts,
distinct differences between jurisdictions continue to exist.
Creator's
law was enacted rather late in German speaking states and
the economic historian Eckhard Höffner argues that the absence of possibilities
to maintain copyright laws in all these states in the early 19th century,
encouraged the publishing of low-priced paperbacks for the masses. This was
profitable for authors and led to a proliferation of books, enhanced knowledge,
and was ultimately an important factor in the ascendency of Germany as a power
during that century. After the introduction of creator's rights, German
publishers started to follow English customs, in issuing only expensive book
editions for wealthy customers.
Empirical
evidence derived from the exogenous differential introduction of author's right
(Italian: diritto d’autore) in Napoleonic Italy shows that
"basic copyrights increased both the number and the quality of operas,
measured by their popularity and durability".
International
copyright treaties
The Pirate Publisher—An International Burlesque that has the
Longest Run on Record, from Puck, 1886, satirizes
the then-existing situation where a publisher could profit by simply copying
newly published works from one country, and publishing them in another, and
vice versa.
The
1886 Berne
Convention first established recognition of
authors' rights among sovereign
nations, rather than merely bilaterally. Under the Berne
Convention, protective rights for creative works do not
have to be asserted or declared, as they are automatically in force at
creation: an author need not "register" or "apply for"
these protective rights in countries adhering to the Berne Convention. As
soon as a work is "fixed", that is, written or recorded on some
physical medium, its author is automatically entitled to all intellectual
property rights in the work, and to any derivative works unless and until the
author explicitly disclaims them, or until the rights expires. The Berne
Convention also resulted in foreign authors being treated equivalently to
domestic authors, in any country signed onto the convention. The UK signed the
Berne Convention in 1887 but did not implement large parts of it until 100
years later with the passage of the Copyright, Designs and Patents Act 1988.
Specially, for educational and scientific research purposes, the Berne
Convention provides the developing countries issue compulsory licenses for the
translation or reproduction of copyrighted works within the limits prescribed
by the convention. This was a special provision that had been added at the time
of 1971 revision of the convention, because of the strong demands of the
developing countries. The United States did not sign the Berne Convention until
1989.
The
United States and most Latin
American countries instead entered into the Buenos Aires Convention in
1910, which required a copyright notice on the work (such as all rights reserved),
and permitted signatory nations to limit the duration of copyrights to shorter
and renewable terms. The Universal Copyright Convention was
drafted in 1952 as another less demanding alternative to the Berne Convention,
and ratified by nations such as the Soviet Union and
developing nations.
The
regulations of the Berne
Convention are incorporated into the World Trade Organization's TRIPS agreement
(1995), thus giving the Berne Convention effectively near-global application.
In
1961, the United
International Bureaux for the Protection of Intellectual Property signed
the Rome
Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations. In 1996, this organization was
succeeded by the founding of the World Intellectual
Property Organization, which launched the 1996 WIPO Performances and Phonograms Treaty and
the 2002 WIPO
Copyright Treaty, which enacted greater restrictions on the
use of technology to copy works in the nations that ratified it. The Trans-Pacific Partnership includes
intellectual property provisions relating to copyright.
Copyright
laws and authors' right laws are standardized somewhat through these
international conventions such as the Berne Convention and Universal Copyright
Convention. These multilateral treaties have been ratified by nearly all
countries, and international organizations such
as the European
Union require their member states to comply with them.
All member states of the World Trade Organization are
obliged to establish minimum levels of copyright protection. Nevertheless,
important differences between the national regimes continue to exist.
Obtaining protection
Ownership
The
original holder of the copyright may be the employer of the author rather than
the author themself if the work is a "work for hire". For
example, in English
law the Copyright, Designs and Patents Act 1988 provides
that if a copyrighted work is made by an employee in the course of that
employment, the copyright is automatically owned by the employer which would be
a "Work for Hire". Typically, the first owner of a copyright is the
person who created the work i.e. the author. But when more than one
person creates the work, then a case of joint
authorship can be made provided some criteria are
met.
Eligible works
Copyright
may apply to a wide range of creative, intellectual, or artistic forms, or
"works". Specifics vary by jurisdiction, but these
can include poems, theses, fictional characters, plays and
other literary works, motion pictures, choreography, musical compositions, sound
recordings, paintings, drawings, sculptures, photographs, computer
software, radio and television broadcasts,
and industrial
designs. Graphic designs and industrial designs may
have separate or overlapping laws applied to them in some jurisdictions.
Copyright
does not cover ideas and information themselves, only the form or manner in
which they are expressed. For example, the copyright to a Mickey
Mouse cartoon restricts others from making copies of the
cartoon or creating derivative
works based on Disney's particular anthropomorphic mouse,
but does not prohibit the creation of other works about anthropomorphic mice in
general, so long as they are different enough not to be judged copies of
Disney's.
Originality
Typically,
a work must meet minimal standards of originality in
order to qualify for copyright, and the copyright expires after a set period of
time (some jurisdictions may allow this to be extended). Different countries
impose different tests, although generally the requirements are low; in
the United
Kingdom there has to be some "skill, labour, and
judgment" that has gone into it. In Australia and
the United Kingdom it has been held that a single word is insufficient to
comprise a copyright work. However, single words or a short string of words can
sometimes be registered as a trademark instead.
Copyright
law recognizes the right of an author based on whether the work actually is
an original
creation, rather than based on whether it is unique; two authors
may own copyright on two substantially identical works, if it is determined
that the duplication was coincidental, and neither was copied from the other.
Registration
In
all countries where the Berne
Convention standards apply, copyright is automatic
and need not be obtained through official registration with any government
office. Once an idea has been reduced to tangible form, for example by securing
it in a fixed medium (such as a drawing, sheet music, photograph, a videotape,
or a computer file), the copyright holder is entitled to enforce their
exclusive rights. However, while registration is not needed to exercise
copyright, in jurisdictions where the laws provide for registration, it serves
as prima
facie evidence of a valid copyright and enables the
copyright holder to seek statutory damages and
attorney's fees. (In the US, registering after an infringement only
enables one to receive actual damages and lost profits.)
A
widely circulated strategy to avoid the cost of copyright registration is
referred to as the poor man's copyright. It proposes
that the creator send the work to themself in a sealed envelope by registered
mail, using the postmark to
establish the date. This technique has not been recognized in any published
opinions of the United States courts. The United States Copyright Office says
the technique is not a substitute for actual registration. The United Kingdom
Intellectual Property Office discusses the technique
and notes that the technique (as well as commercial registries) does not
constitute dispositive proof that the work is original or establish who created
the work.
Fixing
The Berne
Convention allows member countries to decide
whether creative works must be "fixed" to enjoy copyright. Article 2,
Section 2 of the Berne Convention states:
"It shall be a matter for legislation in the countries
of the Union to prescribe that works in general or any specified categories of
works shall not be protected unless they have been fixed in some material
form."
Some
countries do not require that a work be produced in a particular form to obtain
copyright protection. For instance, Spain, France, and Australia do not require
fixation for copyright protection. The United States and Canada, on the other
hand, require that most works must be "fixed in a tangible medium of
expression" to obtain copyright protection. US law requires that the
fixation be stable and permanent enough to be "perceived, reproduced or
communicated for a period of more than transitory duration". Similarly,
Canadian courts consider fixation to require that the work be "expressed to
some extent at least in some material form, capable of identification and
having a more or less permanent endurance".
Note
this provision of US law:
c) Effect of Berne Convention.—No right or interest in a
work eligible for protection under this title may be claimed by virtue of, or
in reliance upon, the provisions of the Berne Convention, or the adherence of
the United States thereto. Any rights in a work eligible for protection under
this title that derive from this title, other Federal or State statutes, or the
common law, shall not be expanded or reduced by virtue of, or in reliance upon,
the provisions of the Berne Convention, or the adherence of the United States
thereto.
Copyright notice
A copyright symbol used in copyright notice
A copyright symbol embossed on a piece of paper
Before
1989, United States law required the use of a copyright notice, consisting of
the copyright
symbol (©, the letter C inside a circle;
Unicode U+00A9 © COPYRIGHT SIGN), the abbreviation
"Copr.", or the word "Copyright", followed by the year of
the first publication of the work and the name of the copyright
holder. Several years may be noted if the work has gone through
substantial revisions. The proper copyright notice for sound recordings of
musical or other audio works is a sound recording copyright symbol (℗,
the letter P inside a circle, Unicode U+2117 ℗ SOUND RECORDING COPYRIGHT), which
indicates a sound recording copyright, with the letter P indicating
a "phonorecord".
In addition, the phrase All rights reserved which
indicates that the copyright holder reserves, or holds for their own use was
once required to assert copyright, but that phrase is now legally obsolete.
Almost everything on the Internet has some sort of copyright attached to it.
Whether these things are watermarked, signed, or have any other sort of
indication of the copyright is a different story however.
In
1989 the United States enacted the Berne Convention Implementation Act,
amending the Copyright Act of 1976 to conform to most of the provisions of the
Berne Convention. As a result, the use of copyright notices has become optional
to claim copyright, because the Berne Convention makes copyright
automatic. However, the lack of notice of copyright using these marks may
have consequences in terms of reduced damages in an infringement lawsuit– using
notices of this form may reduce the likelihood of a defense of "innocent infringement"
being successful.
Publisher's
copyright
In
the UK, the publisher of a work automatically owns the copyright in the
"typographical arrangement of a published work", i.e. its layout and
general appearance as a published work. This copyright lasts for 25 years after
the end of the year in which the edition containing that arrangement was first
published.
Enforcement
Copyrights
are generally enforced by the holder in a civil law court,
but there are also criminal infringement statutes in some jurisdictions.
While central registries are
kept in some countries which aid in proving claims of ownership, registering
does not necessarily prove ownership, nor does the fact of copying (even
without permission) necessarily prove that copyright was
infringed. Criminal sanctions are generally aimed at serious counterfeiting
activity, but are now becoming more commonplace as copyright collectives such
as the RIAA are
increasingly targeting the file sharing home
Internet user. Thus far, however, most such cases against file sharers have
been settled out of court. (See Legal aspects of file sharing)
In
most jurisdictions the copyright holder must bear the cost of enforcing
copyright. This will usually involve engaging legal representation,
administrative or court costs. In light of this, many copyright disputes are settled
by a direct approach to the infringing party in order to settle the dispute out
of court.
"... by 1978, the scope was expanded to apply
to any 'expression' that has been 'fixed' in any medium, this protection
granted automatically whether the maker wants it or not, no registration
required."
Self-enforcement
measures
With
older technology like paintings, books, phonographs, and film, it is generally
not feasible for consumers to make copies on their own, so producers can simply
require payment when transferring physical possession of the storage medium.
The equivalent for digital online content is a paywall.
The
introduction of the photocopier, cassette
tape, and videotape made
it easier for consumers to copy materials like books and music, but each time a
copy was made, it lost some fidelity. Digital media like text, audio, video,
and software (even when stored on physical media like compact
discs and DVDs) can be copied losslessly, and
shared on the Internet,
creating a much bigger threat to producer revenue. Some have used digital rights management technology
to restrict non-playback access through encryption and other means. Digital
watermarks can be used to trace copies, deterring
infringement with a more credible threat of legal consequences. Copy
protection is used for both digital and
pre-Internet electronic media.
Copyright
infringement
For a
work to be considered to infringe upon copyright, its use must have occurred in
a nation that has domestic copyright laws or adheres to a bilateral treaty or
established international convention such as the Berne
Convention or WIPO
Copyright Treaty. Improper use of materials outside of legislation
is deemed "unauthorized edition", not copyright infringement.
Statistics
regarding the effects of copyright infringement are difficult to determine.
Studies have attempted to determine whether there is a monetary loss for
industries affected by copyright infringement by predicting what portion of
pirated works would have been formally purchased if they had not been freely
available. Other reports indicate that copyright infringement does not
have an adverse effect on the entertainment industry, and can have a positive
effect. In particular, a 2014 university study concluded that free music
content, accessed on YouTube,
does not necessarily hurt sales, instead has the potential to increase sales.
According
to the IP Commission Report the annual cost of intellectual property infringement to
the US economy "continues to exceed $225 billion in counterfeit goods,
pirated software, and theft of trade secrets and could be as high as $600
billion." A 2019 study sponsored by the US Chamber of Commerce Global Innovation
Policy Center (GIPC), in partnership with NERA Economic Consulting "estimates
that global online piracy costs the U.S. economy at least $29.2 billion in lost
revenue each year." An August 2021 report by the Digital Citizens Alliance states
that "online criminals who offer stolen movies, TV shows, games, and live
events through websites and apps are reaping $1.34 billion in annual
advertising revenues." This comes as a result of users visiting pirate
websites who are then subjected to pirated content, malware, and fraud.
Rights granted
According
to World Intellectual
Property Organisation, copyright protects two types
of rights. Economic rights allow right owners to derive financial reward from
the use of their works by others. Moral rights allow authors and creators to
take certain actions to preserve and protect their link with their work. The
author or creator may be the owner of the economic rights, or those rights may
be transferred to one or more copyright owners. Many countries do not allow the
transfer of moral rights.
Economic rights
With
any kind of property, its owner may decide how it is to be used, and others can
use it lawfully only if they have the owner's permission, often through a
license. The owner's use of the property must, however, respect the legally
recognised rights and interests of other members of society. So the owner of a
copyright-protected work may decide how to use the work and may prevent others
from using it without permission. National laws usually grant copyright owners
exclusive rights to allow third parties to use their works, subject to the
legally recognised rights and interests of others. Most copyright laws
state that authors or other right owners have the right to authorise or prevent
certain acts in relation to a work. Right owners can authorise or prohibit:
·
reproduction of the work in various forms,
such as printed publications or sound recordings;
·
distribution of copies of the work;
·
public performance of the work;
·
broadcasting or other communication of the
work to the public;
·
translation of the work into other languages;
and
·
adaptation of the work, such as turning a
novel into a screenplay.
Moral rights
Moral
rights are concerned with the non-economic rights of a creator. They protect
the creator's connection with a work as well as the integrity of the work.
Moral rights are only accorded to individual authors and in many national laws
they remain with the authors even after the authors have transferred their
economic rights. In some EU countries, such as France, moral rights last
indefinitely. In the UK, however, moral rights are finite. That is, the right
of attribution and the right of integrity last only as long as the work is in
copyright. When the copyright term comes to an end, so too do the moral rights
in that work. This is just one reason why the moral rights regime within the UK
is often regarded as weaker or inferior to the protection of moral rights in
continental Europe and elsewhere in the world. The Berne Convention, in
Article 6bis, requires its members to grant authors the following rights:
1.
the right to claim authorship of a work
(sometimes called the right of paternity or the right of attribution); and
2.
the right to object to any distortion or
modification of a work, or other derogatory action in relation to a work, which
would be prejudicial to the author's honour or reputation (sometimes called the
right of integrity).
These
and other similar rights granted in national laws are generally known as the moral
rights of authors. The Berne Convention requires these rights to be independent
of authors' economic rights. Moral rights are only accorded to individual
authors and in many national laws they remain with the authors even after the
authors have transferred their economic rights. This means that even where, for
example, a film producer or publisher owns the economic rights in a work, in
many jurisdictions the individual author continues to have moral
rights. Recently, as a part of the debates being held at the US Copyright Office on the
question of inclusion of Moral Rights as a part of the framework of the Copyright Law in United States, the
Copyright Office concluded that many diverse aspects of the current moral
rights patchwork – including copyright law's derivative work right, state moral
rights statutes, and contract law – are generally working well and should not
be changed. Further, the Office concludes that there is no need for the
creation of a blanket moral rights statute at this time. However, there are
aspects of the US moral rights patchwork that could be improved to the benefit
of individual authors and the copyright system as a whole.
In
the copyright law of the United States,
several exclusive rights are granted to the holder of a copyright, as are
listed below:
·
protection of the work;
·
to determine and decide how, and under what
conditions, the work may be marketed, publicly displayed, reproduced, distributed,
etc.
·
to produce copies or reproductions of the work
and to sell those copies; (including, typically, electronic copies)
·
to import or export the work;
·
to create derivative works; (works that adapt
the original work)
·
to perform or display the work publicly;
·
to sell or cede these rights to others;
·
to transmit or display by radio, video or
internet.[44]
The
basic right when a work is protected by copyright is that the holder may
determine and decide how and under what conditions the protected work may be
used by others. This includes the right to decide to distribute the work for
free. This part of copyright is often overseen. The phrase "exclusive
right" means that only the copyright holder is free to exercise those
rights, and others are prohibited from using the work without the holder's
permission. Copyright is sometimes called a "negative right", as it
serves to prohibit certain people (e.g., readers, viewers, or listeners, and
primarily publishers and would be publishers) from doing something they would otherwise
be able to do, rather than permitting people (e.g., authors) to do something
they would otherwise be unable to do. In this way it is similar to the unregistered design right in English
law and European law. The rights
of the copyright holder also permit them to not use or exploit their copyright,
for some or all of the term. There is, however, a critique which rejects this
assertion as being based on a philosophical interpretation of copyright law that
is not universally shared. There is also debate on whether copyright should be
considered a property
right or a moral right.
UK
copyright law gives creators both economic rights and
moral rights. While 'copying' someone else's work without permission may
constitute an infringement of their economic rights, that is, the reproduction
right or the right of communication to the public, whereas, 'mutilating' it
might infringe the creator's moral rights. In the UK, moral rights include the
right to be identified as the author of the work, which is generally identified
as the right of attribution, and the right not to have your work subjected to
'derogatory treatment', that is the right of integrity.
Indian copyright law is
at parity with the international standards as contained in TRIPS. The
Indian Copyright Act, 1957, pursuant to the amendments in 1999,
2002 and 2012, fully reflects the Berne Convention and the Universal Copyrights
Convention, to which India is a party. India is also a party to the Geneva Convention for the Protection of Rights
of Producers of Phonograms and is an active member of
the World Intellectual
Property Organization (WIPO) and United Nations
Educational, Scientific and Cultural Organization (UNESCO).
The Indian system provides both the economic and moral rights under different
provisions of its Indian Copyright Act of 1957.
Duration
Expansion of US copyright law (currently based on the
date of creation or publication)
Copyright
subsists for a variety of lengths in different jurisdictions. The length of the
term can depend on several factors, including the type of work (e.g. musical
composition, novel), whether the work has been published, and
whether the work was created by an individual or a corporation. In most of the
world, the default length of copyright is the life of the author plus either 50
or 70 years. In the United States, the term for most existing works is a fixed
number of years after the date of creation or publication. Under most
countries' laws (for example, the United States and the United
Kingdom), copyrights expire at the end of the calendar year in which they
would otherwise expire.
The
length and requirements for copyright duration are subject to change by
legislation, and since the early 20th century there have been a number of
adjustments made in various countries, which can make determining the duration
of a given copyright somewhat difficult. For example, the United States used to
require copyrights to be renewed after
28 years to stay in force, and formerly required a copyright notice upon first
publication to gain coverage. In Italy and France, there were post-wartime
extensions that could increase the term by approximately 6 years in Italy and
up to about 14 in France. Many countries have extended the length of their
copyright terms (sometimes retroactively). International treaties establish
minimum terms for copyrights, but individual countries may enforce longer terms
than those.
In
the United States, all books and other works, except for sound recordings,
published before 1929 have expired copyrights and are in the public domain. The
applicable date for sound recordings in the United States is before
1923. In addition, works published before 1964 that did not have their copyrights
renewed 28 years after first publication year also are in the public domain.
Hirtle points out that the great majority of these works (including 93% of the
books) were not renewed after 28 years and are in the public domain. Books
originally published outside the US by non-Americans are exempt from this
renewal requirement, if they are still under copyright in their home country.
But
if the intended exploitation of the work includes publication (or distribution
of derivative work, such as a film based on a book protected by copyright)
outside the US, the terms of copyright around the world must be considered. If
the author has been dead more than 70 years, the work is in the public domain
in most, but not all, countries.
In
1998, the length of a copyright in the United States was increased by 20 years
under the Copyright Term Extension Act.
This legislation was the subject of substantial criticism following allegations
that the bill was strongly promoted by corporations which had valuable
copyrights which otherwise would have expired.
Limitations and
exceptions
In
many jurisdictions, copyright law makes exceptions to these restrictions when
the work is copied for the purpose of commentary or other related uses. United
States copyright law does not cover names, titles, short phrases or listings
(such as ingredients, recipes, labels, or formulas). However, there are
protections available for those areas copyright does not cover, such as trademarks and patents.
Idea–expression
dichotomy and the merger doctrine
The
idea–expression divide differentiates between ideas and expression, and states
that copyright protects only the original expression of ideas, and not the
ideas themselves. This principle, first clarified in the 1879 case of Baker
v. Selden, has since been codified by the Copyright Act of 1976 at
17 U.S.C. § 102(b).
The first-sale
doctrine and exhaustion of rights
Copyright
law does not restrict the owner of a copy from reselling legitimately obtained
copies of copyrighted works, provided that those copies were originally
produced by or with the permission of the copyright holder. It is therefore
legal, for example, to resell a copyrighted book or CD. In
the United States this is known as the first-sale doctrine, and was
established by the courts to
clarify the legality of reselling books in second-hand bookstores.
Some
countries may have parallel importation restrictions
that allow the copyright holder to control the aftermarket. This may
mean for example that a copy of a book that does not infringe copyright in the
country where it was printed does infringe copyright in a country into which it
is imported for retailing. The first-sale doctrine is known as exhaustion of rights in
other countries and is a principle which also applies, though somewhat
differently, to patent and trademark rights.
While this doctrine permits the transfer of the particular legitimate copy
involved, it does not permit making or distributing additional copies.
In Kirtsaeng v. John Wiley & Sons, Inc., in
2013, the United States Supreme Court held
in a 6–3 decision that the first-sale doctrine applies to goods manufactured
abroad with the copyright owner's permission and then imported into the US
without such permission. The case involved a plaintiff who imported Asian
editions of textbooks that had been manufactured abroad with the
publisher-plaintiff's permission. The defendant, without permission from the
publisher, imported the textbooks and resold on eBay. The
Supreme Court's holding severely limits the ability of copyright holders to
prevent such importation.
In
addition, copyright, in most cases, does not prohibit one from acts such as
modifying, defacing, or destroying one's own legitimately obtained copy of a
copyrighted work, so long as duplication is not involved. However, in countries
that implement moral rights, a copyright
holder can in some cases successfully prevent the mutilation or destruction of
a work that is publicly visible.
Fair use and fair
dealing
Copyright
does not prohibit all copying or replication. In the United States, the fair use doctrine,
codified by the Copyright Act of 1976 as
17 U.S.C. Section 107, permits some copying and distribution without permission
of the copyright holder or payment to same. The statute does not clearly define
fair use, but instead gives four non-exclusive factors to consider in a fair
use analysis. Those factors are:
1.
the purpose and character of one's use;
2.
the nature of the copyrighted work;
3.
what amount and proportion of the whole work
was taken;
4.
the effect of the use upon the potential
market for or value of the copyrighted work.
In
the United
Kingdom and many other Commonwealth countries,
a similar notion of fair dealing was established by the courts or
through legislation. The
concept is sometimes not well defined; however, in Canada,
private copying for personal use has been expressly permitted by statute since
1999. In Alberta
(Education) v. Canadian Copyright Licensing Agency (Access Copyright),
2012 SCC 37, the Supreme Court of Canada concluded
that limited copying for educational purposes could also be justified under the
fair dealing exemption. In Australia, the fair dealing exceptions under
the Copyright Act 1968 (Cth)
are a limited set of circumstances under which copyrighted material can be
legally copied or adapted without the copyright holder's consent. Fair dealing
uses are research and study; review and critique; news reportage and the giving
of professional advice (i.e. legal advice). Under
current Australian
law, although it is still a breach of copyright to copy,
reproduce or adapt copyright material for personal or private use without
permission from the copyright owner, owners of a legitimate copy are permitted
to "format shift" that work from one medium to another for personal,
private use, or to "time shift" a broadcast work for later, once and
only once, viewing or listening. Other technical exemptions from infringement
may also apply, such as the temporary reproduction of a work in machine
readable form for a computer.
In
the United States the AHRA (Audio Home Recording Act Codified
in Section 10, 1992) prohibits action against consumers making noncommercial
recordings of music, in return for royalties on both
media and devices plus mandatory copy-control mechanisms on recorders.
Section 1008. Prohibition on certain infringement actions
No action may be brought under this title alleging infringement of copyright
based on the manufacture, importation, or distribution of a digital audio
recording device, a digital audio recording medium, an analog recording device,
or an analog recording medium, or based on the noncommercial use by a consumer
of such a device or medium for making digital musical recordings or analog
musical recordings.
Later
acts amended US copyright law so that for certain purposes making 10 copies or
more is construed to be commercial, but there is no general rule permitting
such copying. Indeed, making one complete copy of a work, or in many cases
using a portion of it, for commercial purposes will not be considered fair use.
The Digital Millennium Copyright Act prohibits
the manufacture, importation, or distribution of devices whose intended use, or
only significant commercial use, is to bypass an access or copy control put in
place by a copyright owner. An appellate court has held that fair use is
not a defense to engaging in such distribution. In Lenz v. Universal Music Corp., the United States Court
of Appeals for the Ninth Circuit affirmed
the lower court decision, holding that "fair use is 'authorized by the
law' and a copyright holder must consider the existence of fair use before
sending a takedown notification" under the Digital Millennium
Copyright Act.
EU copyright laws recognise
the right of EU member states to implement some national exceptions to
copyright. Examples of those exceptions are:
·
photographic reproductions on paper or any
similar medium of works (excluding sheet music) provided that the rightholders
receives fair compensation;
·
reproduction made by libraries, educational
establishments, museums or archives, which are non-commercial;
·
archival reproductions of broadcasts;
·
uses for the benefit of people with a
disability;
·
for demonstration or repair of equipment;
·
for non-commercial research or private study;
·
when used in parody.
Accessible copies
It is
legal in several countries including the United Kingdom and the United States
to produce alternative versions (for example, in large print or braille) of a
copyrighted work to provide improved access to a work for blind and visually
impaired people without permission from the copyright holder.
Religious Service
Exemption
In
the US there is a Religious Service Exemption (1976 law, section 110[3]),
namely "performance of a non-dramatic literary or musical work or of a
dramatico-musical work of a religious nature or display of a work, in the
course of services at a place of worship or other religious assembly"
shall not constitute infringement of copyright.
Useful articles
In
Canada, items deemed useful articles such as clothing designs
are exempted from copyright protection under the Copyright Act if
reproduced more than 50 times. Fast fashion brands
may reproduce clothing designs from smaller companies without violating
copyright protections.
Transfer, assignment
and licensing
Generic DVD: All rights reserved
A
copyright, or aspects of it (e.g. reproduction alone, all but moral rights),
may be assigned or transferred from one party to another. For example, a
musician who records an album will often sign an agreement with a record
company in which the musician agrees to transfer all copyright in the
recordings in exchange for royalties and other considerations. The creator (and
original copyright holder) benefits, or expects to, from production and
marketing capabilities far beyond those of the author. In the digital age of
music, music may be copied and distributed at minimal cost through the Internet;
however, the record
industry attempts to provide promotion and marketing for the
artist and their work so it can reach a much larger audience. A copyright holder
need not transfer all rights completely, though many publishers will insist.
Some of the rights may be transferred, or else the copyright holder may grant
another party a non-exclusive license to copy or distribute the work in a
particular region or for a specified period of time.
A
transfer or license may have to meet particular formal requirements in order to
be effective, for example under the Australian Copyright Act 1968 the
copyright itself must be expressly transferred in writing. Under the US
Copyright Act, a transfer of ownership in copyright must be memorialized in a
writing signed by the transferor. For that purpose, ownership in copyright
includes exclusive licenses of rights. Thus, exclusive licenses, to be
effective, must be granted in a written instrument signed by the grantor. No
special form of transfer or grant is required. A simple document that
identifies the work involved and the rights being granted is sufficient.
Non-exclusive grants (often called non-exclusive licenses) need not be in
writing under US law. They can be
oral or even implied by the behavior of the parties. Transfers of copyright
ownership, including exclusive licenses, may and should be recorded in the U.S.
Copyright Office. (Information on recording transfers is available on the
Office's web site.) While recording is not required to make the grant
effective, it offers important benefits, much like those obtained by recording
a deed in a real
estate transaction.
Copyright
may also be licensed. Some
jurisdictions may provide that certain classes of copyrighted works be made
available under a prescribed statutory license (e.g.
musical works in the United States used for radio broadcast or performance).
This is also called a compulsory license, because
under this scheme, anyone who wishes to copy a covered work does not need the
permission of the copyright holder, but instead merely files the proper notice
and pays a set fee established by statute (or by an agency decision under
statutory guidance) for every copy made. Failure to follow the proper
procedures would place the copier at risk of an infringement suit. Because of
the difficulty of following every individual work, copyright collectives or collecting societies and performing rights organizations (such
as ASCAP, BMI, and SESAC)
have been formed to collect royalties for hundreds (thousands and more) works
at once. Though this market solution bypasses the statutory license, the
availability of the statutory fee still helps dictate the price per work
collective rights organizations charge, driving it down to what avoidance of
procedural hassle would justify.
Free licenses
Copyright
licenses known as open or free licenses seek to grant several
rights to licensees, either for a fee or not. Free in this
context is not as much of a reference to price as it is to freedom. What
constitutes free licensing has been characterised in a number of similar
definitions, including by order of longevity the Free Software Definition,
the Debian Free Software Guidelines,
the Open Source Definition and
the Definition of Free Cultural Works.
Further refinements to these definitions have resulted in categories such
as copyleft and permissive. Common
examples of free licenses are the GNU General Public License, BSD
licenses and some Creative Commons licenses.
Founded
in 2001 by James Boyle, Lawrence
Lessig, and Hal Abelson, the Creative
Commons (CC) is a non-profit organization which aims to
facilitate the legal sharing of creative works. To this end, the organization
provides a number of generic copyright license options to the public, gratis. These licenses allow copyright
holders to define conditions under which others may use a work and to specify
what types of use are acceptable.
Terms
of use have traditionally been negotiated on an individual basis between
copyright holder and potential licensee. Therefore, a general CC license
outlining which rights the copyright holder is willing to waive enables the
general public to use such works more freely. Six general types of CC licenses
are available (although some of them are not properly free per the above
definitions and per Creative Commons' own advice). These are based upon
copyright-holder stipulations such as whether they are willing to allow
modifications to the work, whether they permit the creation of derivative works
and whether they are willing to permit commercial use of the work. As of
2009 approximately 130 million individuals had received such licenses.
Criticism
Some
sources are critical of particular aspects of the copyright system. This is
known as a debate over copynorms.
Particularly to the background of uploading content to internet platforms and
the digital exchange of original work, there is discussion about the copyright aspects of
downloading and streaming, the copyright aspects of
hyperlinking and framing.
Concerns
are often couched in the language of digital rights, digital
freedom, database
rights, open
data or censorship. Discussions
include Free Culture, a
2004 book by Lawrence
Lessig. Lessig coined the term permission culture to
describe a worst-case system. The documentaries Good Copy Bad Copy and RiP!:
A Remix Manifesto discuss copyright. Some suggest an alternative compensation system. In
Europe consumers are acting up against the rising costs of music, film and
books, and as a result Pirate
Parties have been created. Some groups reject copyright
altogether, taking an anti-copyright stance.
The perceived inability to enforce copyright online leads some to
advocate ignoring
legal statutes when on the web.
Public domain
Copyright,
like other intellectual property rights, is
subject to a statutorily determined term. Once the term of a copyright has
expired, the formerly copyrighted work enters the public domain and may be used
or exploited by anyone without obtaining permission, and normally without
payment. However, in paying public domain regimes
the user may still have to pay royalties to the state or to an authors'
association. Courts in common law countries, such as the United States and the
United Kingdom, have rejected the doctrine of a common law copyright. Public
domain works should not be confused with works that are publicly available.
Works posted in the internet, for
example, are publicly available, but are not generally in the public domain.
Copying such works may therefore violate the author's copyright.
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