Define: Copyright

Quick Summary of Copyright

Copyright is a legal concept that grants creators of original works exclusive rights to their creations for a specified period. These rights typically include the right to reproduce, distribute, perform, and display the work, as well as the right to create derivative works. Copyright protection applies to various forms of creative expression, such as literary works, music, artwork, films, and software. The purpose of copyright is to encourage creativity by providing creators with economic incentives and protecting their intellectual property from unauthorised use or exploitation. Copyright law varies by country but generally balances the interests of creators with the public’s right to access and use creative works.

A legal device that provides the owner with the right to control how creative work is used. A copyright is comprised of a number of exclusive rights, including the right to make copies, authorise others to make copies, make derivative works, sell and market the work and perform the work. Any of these rights can be sold separately through transfers of copyright ownership.

A copyright provides its holder with the right to restrict unauthorised copying and reproduction of an original expression (i.e. literary work, movie, music, painting, software, mask work, etc.) Copyright stands in contrast to other forms of intellectual property, such as patents, which grant a monopoly right to the use of an invention, because it is not a monopoly right to do something but merely a right to prevent others doing it.

Background

Rights Of The Copyright Holder

A copyright holder typically has exclusive rights:

• to make and sell copies of the work (including, typically, electronic copies)
• to import or export the work
• to make derivative works
• to publicly perform the work
• to sell or assign these rights to others

What is meant by the phrase “exclusive right” is that the copyright holder and only the copyright holder are allowed to do these things; everyone else is prohibited from doing them without the copyright holder’s consent. Copyright is often called a “negative right”, to stress that it has less to do with permitting people (e.g. authors) to do anything and more to do with prohibiting people (e.g. readers, viewers, or listeners) from doing something: reproducing the copyrighted work. In this way, it is similar to the Unregistered Design Right in English Law and European Law.

Transfer Of Rights

Copyrights may be granted, sold, or relinquished. Very often, a copyright holder will, by contract, transfer his copyrights to a corporation. For example, a writer who writes a novel will sign a publication agreement with a company such as Random House in which the writer agrees to transfer all copyrights to Random House in exchange for royalties and other terms. One might ask why a copyright holder would ever give up his rights. The answer is that large companies such as Random House generally have production and marketing capabilities far beyond that of the author. In the digital age of music, music may be copied and distributed for a minimal cost through the Internet, but record labels attempt to provide the service of promoting and marketing the artist so that his work can reach a much larger audience. A copyright holder does not have to transfer all rights completely. Some of the rights may be transferred, or else the copyright holder may grant another party a non-exclusive licence to copy and/or distribute the work in a particular region.

Idea-Expression Dichotomy And The Merger Doctrine

Copyright covers the expression of an idea, not the idea itself; this is called the idea-expression divide. For example, if a book is written describing a new way to organise books in a library, a reader can freely use that method without being sued and even describe it to others; it is only the particular way in which the original author described that process that is protected by copyright. One might be able to obtain a patent for the method, but that is a different subject. Compilations of facts or data may be copyrighted if the facts are selected and arranged in an original manner, though protection will only apply to wholesale copying of that selection and arrangement and not to the facts themselves.

In some cases, ideas may only be capable of intelligible expression in one or a limited number of ways. Therefore, even the expression in these circumstances is unprotected or extremely limited to verbatim copying only. In the United States, this is known as the merger doctrine because the expression is considered to be inextricably merged with the idea. Merger is often pleaded as an affirmative defence to infringement, though some believe that it should prevent the material at issue from being copyrighted in the first place.

Doctrine Of First Sale

Note that copyright law does not restrict resale of copies of works, provided those copies were made by or with the permission of the copyright holder. Thus, it is legal, for example, to resell a book or a CD that you have purchased, provided you do not keep a copy for yourself. In the US, this is known as the First Sale Doctrine and was established in the US court system to clarify the legality of reselling books in used book stores. Elsewhere, it has other names; in the United Kingdom, it is known as “exhaustion of rights” and is a principle that applies to other Intellectual property rights.

Subject to moral rights, copyright also does not prohibit the owner of a physical copy of a work from modifying, defacing, destroying, etc. the work, so long as this does not involve duplication.

Fair Use

Copyright also does not prohibit all forms of copying. In the United States, the fair use clause of the Copyright Act (17 U.S.C. Section 107) allows copying and distribution when done fairly. The statute does not clearly define fair use, but examples of fair use are given, and four non-exclusive factors are offered for fair use analysis. Copyrighted works may also be available for copying through a statutory compulsory licence scheme or via a copyright collective or performing rights organisation such as ASCAP or BMI.

How Copyrights Are Obtained And Enforced

Typically, works must meet minimal standards of originality in order to qualify for a copyright, and the copyright expires after a set period of time. Different countries impose different tests, although generally the test is low; in the United Kingdom, there has to be some ‘skill, originality, and work’ that has gone into it. However, even fairly trivial amounts of these qualities are sufficient.

In the United States, the original owner of the copyright may be the employer of the actual author rather than the author himself if the work is “work for hire. Again, this principle is widespread; in English law, the Copyright Designs and Patents Act 1988 provides that where a work in which copyright subsists is made by an employee in the course of his employment, the copyright is automatically assigned to the employer.

There are also criminal infringement statutes, but typically the owner enforces copyrights in a civil law court. Criminal sanctions are generally aimed at serious counterfeiting activity.

How Copyrighted Material Is Identified

In general, when a piece of material, such as a film (including DVDs and videos) and/or music, is registered with the appropriate country’s copyright office, the material at the beginning or end may contain a copyright notice, which can be a c inside a circle ©, or the word “copyright,”  followed by the year(s) of the copyright and the copyright owner’s name. However, such notice is not required in nations that have acceded to the Berne Convention. In one way or another, under nearly any copyright regime, a work is generally protected by copyright from the moment of its creation (in the United States, the usual phrase is “fixed in a tangible medium of expression”), whether it displays a notice or not.

Year(s) Of Copyright

The year(s) of copyright are listed after the © symbol. If the work has been modified (i.e., a new edition) and recopyrighted, there will be more than one year listed.

All Rights Reserved

The phrase All rights reserved, is a formal notice that all rights granted under existing copyright law are retained by the copyright holder and that legal action may be taken against copyright infringement.

Copyrighting Fonts

In the United States, font design is not copyrightable, but it is patentable if it is novel enough. Stone and Lucida are the only two patented typefaces, and this may not hold up in court.

Europe used to have the same “can’t copyright typefaces” laws as the United States, but Germany (in 1981) and the UK (in 1989) have passed laws making typeface designs copyrightable. The UK law is even retroactive, so designs produced before 1989 are also copyrighted if the copyrights wouldn’t have already expired (the German one is not retroactive).

Rights Beyond Copyright

Many European countries (and other countries as a result of the GATT Trade-Related Intellectual Property or “TRIPs” agreement) further provide for moral rights in addition to copyrights possessed by authors, such as the right to have their work acknowledged and not be disparaged.

While copyright is normally assigned or licenced to the publisher, authors generally retain their moral rights (although in some jurisdictions these can be excluded under contract). In most of Europe, it is not possible for authors to assign their moral rights (unlike the copyright itself, which is regarded as an item of property which can be sold, licenced, lent, mortgaged or given like any other property). They can agree not to enforce them (and such terms are very common in contracts in Europe). There may also be a requirement for the author to ‘assert’ these moral rights before they can be enforced. In many books, for example, this is done on a page near the beginning, in amongst the British Library and Library of Congress data.

Some European countries also provide for artist resale rights, which mean that artists are entitled to a portion of the appreciation of the value of their work each time it is sold. These rights are granted on the background of a different tradition that granted droits d’auteur rather than copyright, granting all creators various moral rights beyond the economic rights recognised in most copyright jurisdictions. (see also parallel importation.)

History Of Copyright

While governments had previously granted monopoly rights to publishers to sell printed works, the modern concept of copyright originated in 1710 with the British Statute of Anne. This statute first recognised that authors, rather than publishers, should be the primary beneficiary of such laws, and it included protections for consumers of printed work, ensuring that publishers could not control their use after sale. It also limited the duration of such exclusive rights to 28 years, after which all works would pass into the public domain.

The Berne Convention of 1886 first established the recognition of copyrights between sovereign nations. (The Universal Copyright Convention of 1952 also provided copyrights, but today that convention is largely of historical interest.) Under the Berne Convention, copyright is granted automatically to creative works; an author does not have to “register” or “apply for” copyright. As soon as the work is “fixed”, that is, written or recorded on some physical medium, its author is automatically granted all exclusive rights to the work and any derivative works unless and until the author explicitly disclaims them or until the copyright expires.

Critique Of Copyright

Critiques of copyright fall broadly into two camps: those who assert that the very concept of copyright has never been of net benefit to society and has always served simply to enrich a few at the expense of creativity, and those who feel that the current copyright system doesn’t work in the new Information society. The general problem is that the current (international) copyright system undermines its own goal (Boyle 1996, 142). The concept of public domain, needed as a pool for future creators, is far too often forgotten or repressed, due to the strong position of the concept of the romantic author and selective blindness to the possibilities concerning copyright that the Internet and computers offer. Except for unlimited copying, it offers, as said, also new ways for marketing and, more importantly, the possibilities of code; much depends, of course, on how code is used (code can be used and is in most cases also used in a positive way), but in various cases, it threatens not only the public domain in a serious way but is also ignored when talking about “restoring the balance,” which is said to be gravely disturbed by the so-called unlimited copying possibilities the Internet creates.

Others believe that irrespective of contemporary advances in technology, copyright has been and remains the fundamental way by which authors, sculptors, artists, musicians and others can fund the creation of new works. This view espouses that copyright is the only reason some valuable books and art would be created.

In the US, in 2003, controversial changes implemented by the Sonny Bono Copyright Term Extension Act extending the length of copyright under U.S. copyright law by 20 years were constitutionally challenged unsuccessfully in the Supreme Court. The Court, in the case called Eldred v. Ashcroft, held inter alia that in placing existing and future copyrights in parity in the CTEA, Congress acted within its authority and did not transgress constitutional limitations

Disclaimer

This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 10th April, 2024.