Introduction to Copyrights and Their Functions - Module 1 of 5

Module 1: Introduction to Copyrights and Their Functions

Copyright is a form of legal protection for certain types of intellectual property.  It grants ownership and control to creators of “original” creative works that have been fixed in tangible form.  The legal basis for copyright protection is the United States Constitution, as Article 1, Section 8, Clause 8 allows Congress to grant “exclusive ownership rights for authors and inventors in order to promote scientific and artistic progress.”[1]  Key federal statutes establishing U.S. copyright law include the Copyright Act of 1976 and the Digital Millennium Copyright Act of 1998.  U.S. copyright law is codified in Title 17 of the United States Code.[2]

Copyright law does not protect ideas or concepts.  Instead, it protects the creative expression of those original ideas and concepts.  Only after an idea has been creatively expressed by fixing it in a set tangible form, such as a written document or a recording, do copyright rights apply.

Copyright law specifically recognizes several categories of works that receive protection.  Those categories include:

- literary works

- musical works

- sound recordings,

- visual works

- architectural works

- dramatic works

- choreography [3] 

Copyright protection extends to works that are commissioned by businesses and other organizations.  These are generally described as “works-for-hire” where the creator was paid by an organization to create the work for the organization, including works created in the normal course of employment.[4]  Works-for-hire can also be established by non-employees when there is a valid written contract and the creator has been compensated for the work.

Copyright protection lasts for the lifetime of the creator of the work plus seventy years.  After the creator’s death, the copyright is held and can be enforced by the creator’s estate or heirs. Works-for-hire are subject to a copyright term which is the shorter of 95 years from the date of first publication of the work or 120 years from the date of its creation. When the copyright term expires, the work becomes part of the public domain. All works in the public domain can be used by anyone for any purpose without violating the proprietary rights of any party.

Originality

Original works are works that have not been copied, in whole or in part, from another source. This standard differs from the “novelty” and “uniqueness” requirements associated with patent law.  To obtain patent rights, an inventor must demonstrate that the invention differs substantially from all previous inventions and public knowledge. The copyright requirement of originality is significantly less rigorous. To meet the copyright standard of originality, a creator must simply develop the work independently.  Original works eligible for copyright protection must be the fruit of the efforts of the creator, but the work need not be novel or unique in the patent law sense.

For example, two music composers could, working independently, compose songs that are similar or even identical in music and/or lyrics.  If each of the composers worked truly independently, each composer would have full copyrights associated with her composition.  Though neither is the only work of its kind, there was no copying, so each work is deemed original.

The analysis of a work’s originality when there already exists a similar work focuses on two elements.  The first is the extent to which, if any, the two works are similar.  The more similar the two works are, the greater the concern that one of the works is not truly original.  The second element is the opportunity for copying. This involves a factual examination of the extent to which the creators of the similar works had opportunities to review the work of the other creator.  The greater the opportunity for one party to examine the work of the other, the more likely that there is a problem with originality. 

          The opportunity to review creative content developed by other parties often takes place innocently, with no intent to copy.  Musicians and composers constantly listen to music created and performed by others, and artists routinely view paintings and photographs created by their colleagues.  These encounters technically provide opportunities for copying, even if there was no prior plan to do so.  Copyright infringement disputes are often challenging to resolve as, in many instances, any copying that takes place was unintentional.  Intent to copy the protected material of other parties is not required for a finding of infringement.  All that is required is a factual determination that significant copying has occurred.

Creativity

An important component of originality is creativity.  A mere listing of facts or information, such as lists of names, addresses and telephone number provided in a standard phone directory, for example, is not a creative work. 

          However, creative does not necessarily mean novel or unique.  If the material is creative and not just a mere listing of information, then the fact that others may have developed the same or similar works independently does not undermine the creativity of those works.

Creation of Copyright

Copyrights are established by the creator of an original work at the time when that original work is placed in tangible medium of expression, which can be a written document, sound or video recording, digital file or any of a very wide range of other forms.  For instance, copyright associated with a written article or a book is established when the article or book has been written, even if it is not published or distributed. No application or request for grant of the rights is required for copyright protection to take effect, though registration of copyrights is advisable to make enforcement easier and more practical.[5]  

 Ownership of Copyright

When copyrights are established, the rights are owned exclusively by the creator of the protected work, unless the work is a work-for-hire.  Thus, when a photographer captures an image, all copyright rights associated with the photograph are owned exclusively by the photographer. Initially, the photographer is the only person who has the right to make copies of the image, to sell or otherwise distribute the image, and to create works based on the image, including modified versions of the photograph or drawings based on it.  The photographer is then free to retain or transfer those rights as he or she chooses.

Rights Bestowed by a Copyright

The owner of copyright on a work has a variety of exclusive rights.  The key copyright rights are the rights to

-        duplicate (reproduce or copy) the work,

-        distribute the work and copies of the work,

-        display or publicly perform the work, and

-        create other works based on the copyrighted work (create “derivative works”).[6]

The owner of copyright rights can transfer some or all these rights to other parties.  When the owner transfers the rights to another party, through sale or gift, that transfer is characterized as an “assignment.”  When the copyright owner grants another party limited rights to exercise all or some of the copyright rights associated with the work, that authorization is commonly identified as a “license.” Both assignments and licenses are established and enforced through contracts between the copyright owner and the other party (the “assignee” or “licensee”).

Although the creator of a work obtains exclusive copyright ownership upon presentation of that work in a tangible medium of expression, there are limits to the exercise of that control. Other parties have “fair use” rights to make limited use of copyrighted material^[7] for certain purposes deemed to serve the public interest, such as reporting the news, even without a license or other grant of permission from the copyright owner.[8]

Duplication Rights

Only the copyright owner of a work has the right to make copies of a protected work.  Thus, only the owner of the copyright for a photograph has the right to create additional copies of the image.  

Distribution Rights

Only the owner of the copyright has the right to distribute the protected work to other parties.  This right extends to copies of the protected work as well. Thus, for instance, the creator of a video game establishes copyright when creating the digital files associated with that game.  Only the game creator has the right to distribute the game and copies of the game to other parties. This includes digital copies and physical copies.

Rights of Public Performance and Display

The copyright owner has the exclusive right to present the copyright protected work to the public.  Public presentation can take the form of a public performance, such as a live theatrical presentation of a play, or a public display of the work, such as a telecast of a television program. Public performance need not be performed live. For example, it can also involve activities such as music played on a jukebox or material streamed online.

Derivative Works

Derivative works are new creative works that are based on existing copyrighted works.  The copyright holder of the original work has the exclusive right to create derivative works based on that original work.[9]  For instance, the author of a novel has the right to create or authorize others to create a motion picture or a play based on the novel.  The author also has the right to create or authorize others to create translations of the novel in different languages.  The translations and the motion picture are examples of derivative works of the original novel.

          Another example of derivative works is provided by a painting.  Initially, the painter owns the copyright for the painting. Derivative works of a painting might include prints that reproduce the original painting, postcards that include photographs of the painting, and refrigerator magnets and other forms of merchandise that depict the painting, digital images of the painting and even those images that have been modified to alter the painting’s appearance.

Segmentation of Copyright Rights

Copyright law grants a wide range of rights to the developers of creative works.  Today however, those rights are routinely segmented and shared amongst different parties.  It is important to recognize, though, that all parties ultimately derive their rights from the original copyright owner.

Segmentation can be illustrated using the example of a musical composition.  When a composer writes the music and lyrics for a song, she has created a copyrighted work.  If the lyrics and/or the musical score for the song are to be published in printed form, the owner of the copyright must authorize that publication. The rights associated with such publication are commonly referred to as “publishing rights.”  The grant of publishing rights grants only the right to publish the lyrics and score, and not, for example, to perform or record the song. The rights necessary to create an audio recording of a musical composition are often characterized as “mechanical” rights, which are distinct from publishing rights. The rights to perform a musical composition is characterized as “performance” rights.  Performance rights must be obtained prior to performing the musical composition in a live concert or recording a performance of the song for commercial use.

Infringement

A party who uses copyrighted material without the permission of the copyright owner has engaged in “infringement.”[10]  Unless that use qualifies as fair use, the copyright owner can compel the infringing party to stop using the material and to provide reasonable compensation for the use of the material.  Copyright infringers are sometimes described as copyright pirates.  Copyright infringement lawsuits must be brought in federal court,[11] and remedies for infringement may include compulsion to pay damages, to enter into copyright licensing agreements and to cease use of the material.  In some instances, criminal sanctions including fines and prison terms can be assessed against the infringer.

Digital Rights Management

Copyrights are the intellectual property rights most substantially affected by the rise of the Internet and digital media platforms.  Virtually all content presented through the Internet and other digital media platforms is subject to copyright rules.  Website content, social media posts and software apps are only a few examples of widely used digital materials that are within the scope of copyright law.

          Digital media enables users to execute the key rights of copyright owners: duplication, distribution, public presentation and modification of protected works easily and quickly.  Thus, the online digital environment substantially complicates copyright management efforts.

          Consider for example, computer code. Once fixed in a tangible form, computer programs are eligible for copyright protection.  If a software developer incorporates sections of code created by another developer into his or her new program, copyright infringement has occurred.  The developer of the section of code incorporated into the new program can claim infringement by the developer of the new program.  Copyright protected content can be easily accessed, duplicated, absorbed, and modified in today’s digital environment, and this setting creates difficult and continuing copyright management challenges.

Copyright Law Functions

          Copyright law has two key purposes.  The first is to provide continuing incentives encouraging people to develop creative works.  The second purpose is to facilitate productive use of creative content by the public.  At times, these two purposes may conflict.

          Copyright law provides incentive for continuing creation of new works by granting all rights of ownership and control to the creators of those works.  By granting these rights to the creators, copyright law rewards the creators by allowing them to control commercial use of the materials, encouraging their creative expression.

          Copyright law also ensures public access to creative works.  By empowering the public to have access to all materials in the public domain, copyright law promotes access to a substantial pool of creative work.  Additionally, the copyright law principle of fair use grants public access to copyright protected materials without the permission of the copyright owner for limited, public interest purposes.

Copyright Concerns

Copyright law and policy today faces several important concerns.  For example, copyright owners currently face significant challenges associated with unauthorized access to and use of their copyright protected materials (“piracy”).  Widespread use of digital media technologies has made it easy for individuals to access, modify, duplicate, and share media content broadly.  Many copyright owners are concerned that widespread piracy threatens their ability to manage commercial use of their copyright protected materials effectively.

Another important current copyright concern is the fear of reduced access to creative content.  Copyright terms are very long, at times lasting for more than a century.  In this environment, some fear that the public domain may begin to erode as the flow of new content into the public domain is slowed by the extended length of copyright terms.

          An additional concern is the seemingly aggressive nature of copyright enforcement.  Traditionally, individual copyright owners policed and enforced their rights.  Today, major copyright owners, such as motion picture, television and music recording companies can compel intermediaries, such as Internet service providers and online search platforms, to take quick action against alleged infringers by removing content or denying Internet access.  In many instances, this process places the burden of justifying access to copyrighted material on the users to show non-infringement instead of on the copyright owners to show infringement.

Expansion of criminal prosecutions under copyright law also raises concerns regarding access to copyrighted materials.  Traditionally, criminal prosecution was directed only against major infringers who derived substantial economic gain from misuse of copyrighted material.  Today, criminal sanctions are increasingly applied against infringers. Active and broad application of criminal law sanctions for copyright infringement can, if unchecked, undermine the ability of copyright law to promote innovative use of copyrighted content.

Finally, there is concern that overly aggressive enforcement of the “anti-circumvention” provisions of copyright law can block important legitimate use and analysis of copyrighted material.  For example, encryption software and technologies are routinely applied to digital media content to prevent piracy and other misuse of that content. While copyright law generally prohibits parties from neutralizing or otherwise decrypting copyrighted protected materials, circumventing or overriding encryption is sometimes necessary for a legitimate user of the protected materials to use those materials.  Expanded application of copyright anti-circumvention prohibitions is a subject of continuing discussion and debate.

In the rest of this program, we will examine in greater detail the various copyright law topics presented in this introduction. Digital technologies and platforms provide the opportunity for virtually every individual to be an active user and creator of copyrighted material.  That environment is empowering for the individual, commercially dynamic, yet also a major challenge for copyright law and policy.