Copyrights

Copyrights are legal protections granted to the creators of original works, giving them exclusive rights to use, sell, or license their creations. This protection lasts for the life of the author plus an additional seventy years, allowing the author's estate to benefit from royalties. Copyright law encompasses a wide range of works, including literary and musical compositions, dramatic presentations, audiovisual materials, and even software and vessel designs. The U.S. Copyright Office oversees the registration process, which, while not mandatory for protection, establishes a public record that may be beneficial for legal claims.

Internationally, copyright laws have evolved through agreements like the Berne Convention and the Universal Copyright Convention, with ongoing efforts by organizations like the World Intellectual Property Organization (WIPO) to standardize practices across countries. A key aspect of copyright law is the doctrine of "fair use," which allows for limited use of copyrighted materials in scholarship, critique, and parody, though the boundaries of fair use remain a contentious area subject to legal interpretation. The advent of digital technologies has complicated copyright enforcement, leading to issues of piracy and the unauthorized distribution of copyrighted works. As technology and distribution methods continue to evolve, copyright law faces ongoing challenges in balancing the rights of creators with the public's access to information and culture.

Published in: 2021

By: Erbschloe, Michael

Subject Terms

Copyrights

Abstract

This article examines copyright laws and the process of protecting works by registering copyrights. The history of copyrights is reviewed along with the types of works that can be copyrighted. International trends and activities in copyright law and copyright protection are explained. The concept and process of fair use of copyrighted materials is examined along with some of the problems that creators have encountered when using the copyrighted material of others to create a parody. Issues in combating piracy and copyright infringement are reviewed along with some of the social issues surrounding various antipiracy efforts.

Overview

A copyright gives the owner of a created work the right to use, sell, or license the creation and prohibits others from doing so without appropriate approval from the copyright owner. A copyright extends protection for the work as long as the author is alive plus seventy years after the author's death. This duration enables the estate of the author to collect royalties from the work (United States Copyright Office, 2008). Central to the concept of copyright are economic rights that are recognized by copyright laws around the world and generally apply to any commercial activity including physical reproduction of books, public performances, and electronic distribution (UNESCO, 2009).

The United States Copyright Office. The United States Copyright Office has several strategic goals and responsibilities.

First, the Office works to support Congress, the executive branch, and the courts on issues related to copyright policy and regulations.
Second, the Office serves the public with registration services and information on copyright processes and issues.
Third, the Office is responsible for acquiring copyrighted works to be deposited in the Library of Congress. Since 1870, copyright deposits have formed the bulk of the library's best-in-class collections of books, sound recordings, photographs, motion pictures, and other creative works.
Finally, the Office strives to be a leader in educating the public about copyright issues such as piracy and the effect of emerging technologies on copyrights (United States Copyright Office, 2008).

In fiscal year 2016, the United States Copyright Office registered over 468,000 claims to copyright. More than 636,000 items were transferred to the Library of Congress and were valued at over $35.6 million. The Office collected licensing royalties of over $244 million (Overview of the Copyright Office, 2018).

US Copyright Law. The Copyright Act of 1976 is the basis of copyright law. In the United States, the Federal Copyright Office manages the process of registering copyrights. Once a work is filed with the Copyright Office, a public record of the copyright claim is established (United States Copyright Office, 2008)

"Copyright protection is available for original works or authorship in a tangible medium. Works of authorship include: Literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works" (United States Copyright Office, 2007). Copyright protection is also available for computer chip designs and vessel hull designs. In addition, computer programs or software packages sold for commercial or private use can also be copyrighted (United States Copyright Office, 2008).

International Copyright Law. International action on the protection of copyrights dates back to the Berne Convention for the Protection of Literary and Artistic Works held in 1896. The convention has been revised and updated several times since it was first developed. International activity and cooperation on copyright administration and protection accelerated after World War II. With the support of The United Nations Educational, Scientific, and Cultural Organization (UNESCO), the Universal Copyright Convention was adopted in 1952 (UNESCO, 2009).

The World Intellectual Property Organization (WIPO) continues to work on copyright issues with countries around the world. The WIPO Standing Committee on Copyright and Related Rights (SCCR) meets frequently to discuss ongoing as well as emerging issues, including the protection of broadcasting organizations and the protection of audiovisual performances. Work is also continuing on the WIPO Copyright Treaty, and discussions have focused on software, databases, and Internet distribution and content (WIPO, 2009).

Similar to the patent process, the copyright process is becoming more harmonized around the world. Most countries have an established copyright office and a registration process. The procedures for managing copyrights at the national level, as with managing patent applications and grants, are evolving consistently toward the recommendations and standards of WIPO. However, not all countries are in step with international efforts to protect copyrights, especially those copyrights that are registered in other countries (Crockford, 2008).

Under United States law, copyright protection is automatic when an original work is created and is put into a tangible form. The work does not need to be published or registered with the Copyright Office (Dames, 2009). However, many people feel that it is prudent to register their creation with the Copyright Office, and there are national offices in virtually every country in the world where they can accomplish this.

The Copyright Process. The process of registering a copyright is not overly complicated and can be done online or by completing paper forms and filing them with the Copyright Office. The electronic process and the paper process are not substantially different but the electronic process is not equipped to handle all items that can be copyrighted at this time. Each of the methods requires three basic steps: completing a form, paying a fee, and submitting a copy of the work (United States Copyright Office, 2009).

Fees for registering a copyright vary, and other fees are applicable for a variety of services provided by the Copyright Office. These services include searches, copying, and bulk registration (United States Copyright Office, 2009).

Economic Implications of Copyright Law. The economic importance of copyrights cannot be overstated. The International Intellectual Property Alliance (IIPA), a coalition of seven trade associations with members that produce and distribute copyrighted materials, contends that in 2010, the value added to the United States Gross Domestic Product (GDP) by copyrighted materials was $1.627 trillion. This is equivalent to about 11.1% of the 2010 GDP (IIPA, 2011).

IIPA members are very serious about protecting their industry and the economic benefit of their members as derived from copyrights. The members of the IIPA are the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Entertainment Software Association (ESA), the Independent Film & Television Alliance (IFTA), the Motion Picture Association of America (MPAA), the National Music Publishers' Association (NMPA), and the Recording Industry Association of America (RIAA) (Siwek, 2011).

An Ever Evolving Prospect. Copyright laws will continue to evolve. More countries will adopt mainstream copyright practices and copyright protection. New technologies will continue to change how the distribution of copyrighted material is managed and licensed (Kaushik & Prakash, 2009) (Quint, 2009). As distribution systems such as cable and satellite television add more features and services, lawmakers will be faced with more copyright protection issues as well as more regulatory challenges ("Cable, satellite," 2009).

Applications

Balancing Owner Rights & Creativity through Fair Use. There has been ongoing debate, as well as numerous court cases, regarding the concept and practice of the fair use of copyrighted material. The purpose of the fair use process is to allow creativity, scholarship and research to continue and to promote the creation of knowledge and the perpetuation of culture (Kirsch & Klett, 2009). As new technologies emerge and the consumer demand for content continues to grow, the boundaries of fair use have often become blurred and violated.

The goal of copyright protection is to provide the owner "the right to reproduce or to authorize others to reproduce their work" and to receive economic gain for doing so (UNESCO, 2009). The primary limitations to these rights are established in sections 107 through 118 of the Copyright Act (title 17, U.S. Code) and are centered in the doctrine of "fair use." Section 107 provides "a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research" (United States Copyright Office, 2006) (Mattingly & Samardzija, 2009).

Section 107 also provides four factors that need to be considered in determining whether or not a specific use is fair:

1) The purpose and character of the use, including whether such use is of 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. 4) The effect of the use upon the potential market for or value of the copyrighted work (United States Copyright Office, 2006).

Determining Copyright Infringement. The determination as to whether use is a copyright infringement or use is fair is not easily defined. There is a lack of structure and formula in making the determination. For example, there is not a specific number of words, lines, or notes that automatically constitute fair use. In addition, citing the source does not also automatically constitute fair use (United States Copyright Office, 2006).

The courts have agreed that a use is fair in many generic circumstances including excerpts in a review or criticism and brief quotations in a news report. Other court rulings have included reproduction by a library of a portion of a work to replace part of a damaged copy and reproduction by a teacher of a small part of a work for use in a lesson, or to illustrate a lesson. Not surprisingly, fair use has also been expanded to include reproduction of a work in legislative or judicial proceedings or reports (United States Copyright Office, 2006).

On November 14, 2013, a federal judge ruled that Google did not violate copyright with its massive book scanning project, arguing that the project was fair use under copyright law and provided "significant public benefits" (The Authors Guild, Inc. vs. Google, Inc., 2013).

Parodies & Copyright Infringement. Over time, the use of copyrighted material in a parody has also been covered under the concept of fair use (United States Copyright Office, 2006). The creation of parodies has also been considered free speech and is protected by the First Amendment (Celedonia and Doyle, 2007). However, because the goal of a parody is basically to make fun of a person, product, idea, or belief, it is not likely that a copyright owner would grant a parody creator permission to use the work. Thus, any parody creator that uses the original work of another person or company will assume some risk of being accused of infringement (Johnson & Spilger, 2000).

The parody creator faces many challenges in avoiding or maintaining innocence in an infringement lawsuit. First, the court must determine that a work is indeed a parody. Second, the parody creator must be able to demonstrate that the use of the material falls within the guidelines and is consistent with previous court rulings as to what is fair use (Johnson & Spilger, 2000). It is important that the parody creator note that courts have anguished over the fair use defense when dealing with works of parody, and just because the creator thinks something is a parody does not dissolve possible litigation and rather costly legal fees (Eisenstein, 2000).

Case Study: Al Franken's Lies: And the Lying Liars Who Tell Them. One of the many parodies to draw backlash in the 2000s was Al Franken's book Lies: And the Lying Liars Who Tell Them; A Fair and Balanced Look at the Right (a parody of Fox News). Fox did not appreciate the title and chose to file a lawsuit for trademark infringement (similar to copyright infringement). The suit claimed that the publisher, Penguin, did not have the right to use the term "Fair and Balanced." The suit also stated that the design of the cover of the book, which included a picture of Fox commentator Bill O'Reilly and mimicked the look and style of O'Reilly's books, was an infringement. Part of what may have fueled the fire in this case was that Franken and O'Reilly had a confrontation at the 2003 BookExpo America, where they broke into a shouting match during a panel discussion. The animosity was played out in the court filings, which reportedly include repeated personal attacks on Franken (Holt, 2003). Ultimately, the court threw out the suit, stating it was without merit. Book sales soared, and Fox did not appeal the ruling.

Case Study: Alice Randall's The Wind Done Gone. Another high-profile parody suit involved Alice Randall, who, in 2001, was about to have her first novel, The Wind Done Gone, published by Houghton Mifflin. The book was a parody of Gone With The Wind, an American icon of literature authored by Margaret Mitchell. Randall's version blatantly expounded upon the racism of the old South. United States District judge Charles A. Pannell decided that Randall's version was unabated piracy. Randall and Houghton Mifflin then planned to appeal (Kniffel, 2001).

The American Library Association's Freedom to Read Foundation, the American Booksellers Foundation for Free Expression, and the PEN American Center, among others, defended the right of the author and the publisher. The debate and the attention it caused reached a fever pitch. Advance galleys of The Wind Done Gone were in distribution during the trial. Four of those copies showed up in eBay auctions. Bidding reached $485 for one copy when eBay removed all of them, supposedly at the request of lawyers from the Margaret Mitchell Trust (G.M.E., 2001).

In 2002, Houghton Mifflin and the estate of Mitchell publicly announced that they had reached a settlement in the infringement case. Some interpretations of the settlement's language suggest that Randall would face even more litigation should she try to sell movie rights or create new adaptations (Reid, 2002). The Wind Done Gone was published and lives on. It was another test and a rather emotional and complex one, of the fair use concept (Grossett, 2002).

Issue

Combating Piracy of Copyrighted Materials. Piracy, or illegal copying, distribution, and sales of copyrighted worksï¿½including books, music, software, and videosï¿½has become an international business (Einhorn, 2000). In the United States, federal law protects against the unauthorized use of copyrighted works. In addition, many copyrighted works feature embedded technology designed to hinder copying. Federal law also prohibits willfully creating or selling technology to circumvent such protections (United States Department of Justice, 2006).

Under these laws, copyright infringement for profit is a felony that is punishable by a maximum penalty of five years in prison and a $250,000 fine or twice the gain/loss for an individual first-time offender and double that for a second offense. Large-Scale copyright infringement even without a profit motive is a felony punishable by a maximum penalty of three years in prison and a $250,000 fine or twice the gain/loss for an individual first-time offender and double that for a second offense. Developing technology to circumvent antipiracy protections is also a felony punishable by a maximum penalty of five years in prison and a $500,000 fine or twice the gain/loss for an individual first-time offender and double that for a second offense (United States Department of Justice, 2006).

The United States Federal Bureau of Investigation (FBI) actively pursues investigations and indictments of copyright infringement crimes. It handles over three hundred cases per year and participates in over one hundred indictments per year. Many of these cases have been international in scope and have resulted in thousands of arrests and the seizure of hundreds of millions of dollars in pirated works. The FBI has also developed a label that producers of copyrighted works can place on their products:

"Warning: The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to 5 years in federal prison and a fine of $250,000" (FBI, 2009).

File Sharing. The big cases with hundreds of arrests are impressive. But other situations have brought criticism to law enforcement and industry groups that are attempting to stop piracy. In the United States and many countries around the world, peer-to-peer sharing or exchanging of files has become almost ubiquitous. Due to the ubiquity of this activity in the United States, many feel that the lines which separate general law-abiding citizens from criminals are blurred (Adamsick, 2008).

Efforts to stop file sharing have been compared to the past efforts to stop the distribution of alcohol during US prohibition in the 1920s. The Recording Industry Association of America (RIAA) has sued thousands of individuals alleging millions of dollars in damages. Schools across the nation are implementing strict policies to stop file sharing and halt an activity that the US Supreme Court declared presumptively illegal in 2005 (Schlesinger & Lessig, 2008).

University students are said to illegally download well over one billion music files every year. The RIAA and others are putting the pressure on universities to stop the illegal downloading. Universities are responding by installing filtering appliances to prevent downloads or are offering a free service with a wide range of music choices (Pike, 2008).

In 2006, the RIAA informed university officials that it was initiating a process to bring lawsuits against students for the illegal downloading of music. In this effort, the RIAA had identified students they considered violators and were sent letters offering out-of-court settlements. The RIAA accepted credit cards for the fines (Read, 2007).

User-Generated Content. Internet users, mostly younger users, are creating user-generated content at an astonishing rate. Much of this content now consists of videos, sometimes resulting in lawsuits (Beckerman, 2009). YouTube and Viacom had a legal battle because YouTube videos were found to include a mix of copyrighted video material with some of their original creations. This battle has cost a considerable amount for both sides. YouTube has agreed to put in place video content filters to protect copyrighted video; however, the ability of it to stop YouTube users or to satisfy Viacom is not guaranteed (Meisel, 2009).

The list of copyright crimes and criminals continues to grow. As long as new technology continues to emerge, Internet users will increase their consumption of content, copyright protected or not.

Conclusion

The copyright process and copyright law have evolved over the last two centuries. New technologies including electronic mediums and the Internet have presented challenges for policy makers, creators, and sellers of copyrighted works. It is likely that technologies will continue to expand the options for distribution of works and that copyright law will continue to evolve along with the new technologies.

Some aspects of copyright law are ambiguous, especially the concept and process of fair use. The courts continue to grapple with fair use as creators push the envelop on how they use works created by others while copyright owners, for a variety of reasons, attempt to minimize the value of their work being diluted.

In the case of Lies: And the Lying Liars Who Tell Them, by Al Franken, and The Wind Done Gone, by Alice Randall, it may have been far more than just the protection of a copyright that motivated the owners to pursue litigation. The political and social motivations of those lawsuits may have well outweighed the economic gain that the copyright owners could have reaped.

Protecting copyrights or stopping the piracy of works has become a major challenge in the global, technically advanced marketplace. Massive international efforts are making some progress in the fight against piracy. On the other hand, the pursuit of litigation against consumers who copy small quantities of copyrighted work has created considerable social backlash and may also be creating an entirely new generation of criminals.

Terms & Concepts

Architectural Works: "The design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings" (United States Copyright Office, 2007).

Audiovisual Works (also motion pictures): "Works consisting of a series of related images shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds" (United States Copyright Office, 2007).

Copyright Infringement: The unauthorized or illegal use of works created by others including reproduction, distribution, or sales.

Created: "A work is ï¿½createdï¿½ when it is fixed in a copy or phonorecord for the first time" (United States Copyright Office, 2007).

Dramatic Works, Pantomimes, and Choreographic Works: Works that are presented on stage in a theater setting including accompanying sounds.

Gross Domestic Product (GDP): The market value of all of the goods and services produced in an economy during a specified period of time.

Literary Works: "Works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied" (United States Copyright Office, 2007).

Pictorial, Graphic, and Sculptural Works: "Include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans" (United States Copyright Office, 2007).

Sound Recordings: "Works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied" (United States Copyright Office, 2007).

Vessel Hull Designs: A design for a hull, which is "the exterior frame or body of a vessel, exclusive of the deck, superstructure, masts, sails, yards, rigging, hardware, fixtures, and other attachments" (United States Copyright Office, 2007).

Work: "A work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration" (United States Copyright Office, 2007).

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Copyrights

On this Page

Subject Terms

Copyrights

Abstract

Overview

Applications

Issue

Conclusion

Terms & Concepts

Bibliography

Suggested Reading