Copyright

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Contents

Overview

Article I, Section 8:

The Congress shall have power [...] 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;

Copyright is the aforementioned "exclusive right" secured for authors and is codified in Title 17 of the United States Code.

It is one of the relatively few federal rights described in the original Articles of the constitution (although of course copyrights are contigent upon Congressional action and not self-executing), most enumerated rights were added as amendments. (N.b., these are not our only rights, as in Amendment X: "The powers not delegated ... by the Constitution, nor prohibited by it[,] ... are reserved to the states ... or to the people.".)

Duration

The duration of copyright protection has frequently varied over the centuries since its modern inception in 1710's Statute of Anne. In the United States alone it has increased several times over the last 100 years.

The first copyright act in the United States (the Copyright Act of 1790) protected works for 14 years subject to a one time renewal for 14 years. For a long period of time prior to 1978, the term of a copyright was 28 years and was renewable once if the copyright holder took affirmative action to effect a renewal near the end of the original copyright term. On January 1, 1978 (under the Copyright Act of 1976), when the copyright laws were dramatically overhauled, copyright terms were extended to an author's life plus 50 years for works of known authorship, and 75 years after publication or 100 years after creation for anonymous or corporate works. In 1998 the Sonny Bono Copyright Term Extension Act extended the term of all copyrights by 20 years. The Sono Bono Copyright Term Extension Act applied retroactively to existing works (whose authors were by definition given no incentive to create as a result), as well as new works, in a gross act of corporate welfare. A constitutional challenge to this give-away failed in the courts in the case of Eldred v. Ashcroft, 53 U.S. __ (2003).

Here is a brief summary of how to tell whether the copyright protection on a work has expired:

  • If the work was published before 1923 then its copyright has expired.
  • If the work was registered in or after 1923, but the creator died over 70 years ago (before 1935 as of 2005), then its copyright has expired.
  • If the work was published in or after 1923, but the creator died less than 70 years ago (in or after 1935), then its copyright may still be intact.
  • If the work was published in or after 1923 and the creator is still alive then its copyright may still be intact.
  • If the work was registered by a corporation between 1923 and 1977 then its copyright of (at most) 95 years may still be intact (it is likely this term will be extended each time Disney's Mickey Mouse nears the public domain).
  • Any work created after 1977 (in 2005) will be protected for the life of the creator plus 70 years. All such works still have their copyrights intact. [1]
  • Any work created anonymously or corporately after 1977 (as of 2005) will be protected for 95 years from publication or 120 years after creation, whichever comes first. All such works still have their copyrights intact.

Note that works created after 1977 are automatically and immediately protected by copyright, and registration of a copyright only creates additional rights. Prior to 1978, copyright protection only attached if the creator of a work met certain additional conditions (generally publication and/or registration), although the act which took effect in 1978 extended some protection to works which had neither been published nor copyright registered prior to 1978.

Also, not all copyrights registered in the period from 1923 to 1978 remain valid. Prior to 1978, a copyright's initial term was 28 years and it remained in force only if it was renewed near the end of this inital term. Subject to some complex transition rules, many pre-1978 copyrights which were not renewed at the end of their previously-granted terms of 28 years expired. As a result, many pre-1978 copyrights which lacked commercial value were allowed to pass into the public domain.

Scope

In General

Copyright protects a bundle of different rights of an author. These include the right to make copies, the right to perform or publicly display a copyrighted work, the right to distribute copies to the public for sale or lease, and the right to prepare derivative works based upon the copyrighted work.

Derivative Works

One of the most troublesome of these rights is the derivative works right. Generally, a copyright protects only a particular fixed tangible expression of an idea, and not ideas themselves. But, the line between what is a derivative work, which historically has been focused on areas like stage adaptations and translations of books, has now grown profoundly more complex. Now, expressive mediums like the Internet, movies (which inherently display vast amounts of background material subject to copyright which is of only tangential importance to the total work), multi-media works, and the Hip-Hop tradition of "sampling" which are inherently derivative have found places in our culture. But, unlike traditional derivative works, these "new media" typically make slight, but artistically important, use of many sources, rather than than simply aping a single source. Because "new media" often have so many sources, none of which, individually makes up a huge part of the entire work, the administrative costs of obtaining permissions to use works from which the entire work is derived is often great, while the share of the total profit from a new media work which is available to each would-be licensor is often very modest.

Limitations

The principal limitation of the scope of copyright is a doctrine known as fair use, which is discussed separately.

Government Works

In the United States, all works of the United States Government are in the public domain. This is not the universal practice. For example, in the United Kingdom, the copyright on government works belongs to the goverment and must be licensed from the government much as a work published by a private party would be licensed (subject to certain select general waivers). One justification which has been given for the British practice is to prevent private parties from reselling government data at an unreasonable profit.

Progressive Views on Copyright

Progressives generally favor narrowing the existing scope of the copyright and oppose expansions of that right.

The Costs and Benefits Of Shrinking the Public Domain

Basically, progressives are concerned that long copyright terms and broad rights for copyright holders shrink the public domain and as a result create heavy regulatory burdens on the production of creative works, while providing very little commercial benefit to all but a handful of major corporations. This is particular sensitive because copyright protection limits the fundamental right to free speech.

While progressives acknowledge the importance of some intellectual property protections to allow authors and other creators to earn their livings, the vast majority (98%+) of the commercial value of copyrighted intellectual property was already protected under the pre-1978 law.

Very few unpublished and unregistered works which any third-party is in a position to publish will ever have any commercial value. Furthermore, the vast majority of newspapers, music albums, movies, TV broadcasts, books and the like produce the vast majority of their revenues in a matter of days, months or a couple of years at most, and the handful of published works which will every have commercial value beyond twenty-eight years, are easily identified at that point.

Thus, the 1978 law and the Sonny Bono Copyright Extension Act has dramatically shrunk the scope of the public domain for the foreseeable future, while making only a negligible improvement in the incentive to produce creative works. Even if the authors of the Sonny Bono Copyright Extension Act had been determined to preserve the handful of profitable copyrights such as Disney's "Mickey Mouse" copyright that were still profitable, but about to enter the public domain, as a pure political payback, they could have, at least, required copyright holders desiring an extension to make a filing with the copyright office to do so, thus allowing the 99% of old copyrights from that era which are no longer profitable to enter the public domain. Instead, the public domain has been forced to pay an immense price for the benefit of just a few corporations. Some analysis of the economic impacts of copyright term extension, which show the benefits to authors to be less than 0.2% of the value of the total copyright, was conducted by the Canadian government considering similar legislation. See also this law review article.

This study notes that something on the order of 1/3rd to 2/3rds of best selling books remain in print more than 56 years (the pre-1978 copyright term limit), and that roughly 125 books per year account for roughly two-thirds of all book sales. The authors offer this as evidence that long copyright terms do have significant economic effects, but an equally strong argument could be made that requiring copyright holders to renew their copyright registrations after a fairly modest period (say 56 years from creation), at a fairly high cost (e.g. $1,000), would remove only a few dozen to a couple of hundred books from the public domain beyond the initial term (hence dramatically expanding the scope of the public domain), while retaining the full incentive for highly successful authors to produce new works.

This concern is particularly acute because in the creative marketplace, copyrights are rarely retained by the people who create the works themselves. Instead, rights are typically transferred by authors to publishing houses, movies studies and record companies, which in turn delegate enforcement of those rights to a handful of major corporate industry groups (the RIAA and the MPAA are two of the most prominent). Granting additional rights to the corporations that distribute creative works does not necessarily translate into any additional compensation for the creative individuals who produced the works, even if the commercial value of the extremely rare copyright, with a long-lived profitability, is slightly enhanced.

Copyright and Computer Technologies

Copyright has also rendered criminal activities which are closely analogous in purpose at least, to activities that were legal (or at least universally tolerated) in a lower technology world. For example, while sharing copies of an electronic book over the internet is a clear copyright violation, even if only one friend at a time actually reads the book, sharing a physical book with an unlimited number of friends has always been legal and even reading a book aloud on a non-commercial basis to small gatherings, while technically illegal, has always been tolerated. The modern equivalent of a lending library has been criminalized by copyright law.

The use of copyright to protect software is another area where intellectual property laws have made a poor transition to the modern era. For example, the source code of the Windows operating system and any software derived from it are protected by copyright law for 95 years. In theory it is only the particular expression of the software in a particular coding that is protected. Another program with an entirely different code produced independently which did the same thing would not have copyright protection. But, the derivative works right associated with a copyright exposes anyone creating a program similar to Windows to litigation, even though in principle, copyright (unlike patent law which lasts only about two decades and requires patent holders to put ideas into the public domain thereafter) does not protect ideas per se. Particularly, for ideas which are fundamental to all modern computer programming, this has the potential to create massive impediments to innovation, or to necessitate alternative approaches to coding a program (re-inventing the wheel, so to speak), shaped by the need to not create derivative works which may be inferior to those that would have been produced in the absence of copyright regulation.

One extreme version of opposition to the corporate intellectual property regime (not universally or even widely held by progressives) is called the Hacker Ethic. More moderate versions of opposition to the corporate intellectual property regime are the Open Source Movement[2] and the Free Software Movement[3] which seek to use copyright laws and permissive licenses to create a "quasi-public domain". Another similar movement is Creative Commons which is directed primarily to non-software works.

Related Topics

External Links

Wikipedia
Software and Copyright

Hard Copy References

Neil Winstock Netanel, "Copyright and a Democratic Civil Society", 106 Yale L.J. 283 (Nov. 1996). This article makes the case for limiting the scope of copyright law to encourage creative production in the marketplace and improve our national political discourse.

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