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What is a copyright? Copyright is a form of intellectual property securing to authors the rights in their original works of authorship. Under United States copyright law, protected works include literary, dramatic, artistic and musical works as well as additional forms of intellectual expression. 1
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Since 1978 Federal copyright protection has extended to both published and unpublished works in any fixed tangible expression.2
Copyright protection does not depend on official procedures. A created work is considered protected by copyright as soon as it exists in tangible form. The interests secured to authors in these works generally include the exclusive rights to: In addition, authors of certain visual works may enjoy "moral rights" protecting against unauthorized modification to the work that will tend to harm the author's "honor or reputation."8
Term and Scope of Copyright Under the current U.S. scheme, the copyright term lasts for the author's life plus an additional 70 years after the author's death. 9 For works made for hire, the duration of copyright lasts 95 years from publication or 120 years from creation, whichever is shorter.10 There is no such thing as an international copyright. The exclusive rights granted to authors by U.S. copyright law apply only within the U.S., U.S. territories, and U.S. possessions. The scope of the exclusive rights afforded authors in jurisdictions outside the U.S. is determined by reference to the laws of the foreign juridsdiction. That said, national copyright laws have been substantially harmonized over the past three decades. Most nations are signatories to one or more of the international conventions governing the minimum protections afforded to the authors of artistic and literary works.11 As such, the overwhelming majority of nations provide (or at least promise) exclusive rights substantially identical to those of the U.S. and apply equally to local and foreign works.12 |
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Copyright Registration & Notice Copyright protection does not depend on official procedures. However, under the U.S. copyright scheme, the owner of copyright may (but need not) obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by Section 409,13 together with the application and fee.14 While registration is not a condition of copyright protection, it is -- except in very limited circumstances -- a prerequisite to pursuing a claim in federal court.15 Similarly, copyright holders may (but need not) affix a notice of copyright on work in which they claim ownership.16 Notice is not a condition of copyright protection.17 Moreover, notice of the copyright owner's claim to infringed works need not be shown to prove simple infringement.18 However, an infringer's state of mind will be considered by the court in calculating actual and statutory damages.19 In addition, knowledge of the infringing nature of the work is a necessary element of criminal and "contributory" infringement.20 If a notice of copyright appears on the published copy to which a defendant had access, then no weight will be given to the defendant's interposition of a defense based on innocent infringement in mitigation of these claims.21 The power to grant copyrights is provided to Congress by Article I, Section 8 of the U.S. Constitution which provides: 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.22 Until 1978 this power was exercised in favor of published works with States providing a patchwork of common law protection to works falling outside the Federal scheme. Passed in 1978, the Copyright Revision Act of 197623 harmonized several aspects of U.S. copyright law with the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention).24 Most significantly, the 1976 Act:
The 1976 Act set forth most of the current U.S. copyright scheme outlined above. It was further amended in 1998 with the passage of the Digital Millenium Copyright Act (DCMA).27 The DMCA harmonized U.S. copyright law with the World Intellectual Property Organization Copyright Treaty (the WIPO Treaty),28 and added provisions relating to online distribution of infringing materials. Most significantly the DMCA:
The current U.S. copyright law is codified at Title 17 of the United States Code.31 Copyright law provides copyright owners and authors with a number of tools to prohibit unauthorized reproduction and distribution of protected works.
Any person injured by a violation of the prohibitions in section 1201 may bring a civil action in an appropriate United States district court.51 An injured party can seek temporary and permanent injunctions to prevent or restrain a violation.52 An injured party can also seek actual damages and disgorgement of profits.53 As with infringement, the statute provides an alternative remedy of specific damages under which a complaining party can elect to recover an award of fixed damages for each violation of not less than $200 or more than $2,500 as the court considers just.54 The statute provides exemptions to the prohibition for (1) law enforcement,55 (2) encryption research56 and (3) reverse engineering related to interoperability of computer programs.57 However, the scope of these exemptions has been subject to limited judicial construction,58 and this ambiguity has had a chilling effect on publication of existing research in a number of instances. In addition, although the statute specifically reserves the third-party rights of, among others, "fair use",59 technological measures necessary to excercise these rights are equally barred by the statute.60 Limits on Copyright Writing for the Court in Sony Corp. of America v. Universal City Studios, Inc., Justice Stevens observed: The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.73 Although the scope of rights granted by Section 106 are broad, there are several important limitations to the author or copyright holder's interest in protected works:
As was already been noted above (see, Copyright Scope & Term) copyright protection is limited to a period of time after which the work reverts to the public domain.78 The restricted life of the author's exclusive right is an essential element of Article I, Section 8 authorizing the Congressional power to grant copyright.79 Under the current U.S. scheme, the copyright term lasts for the author's life plus an additional 70 years after the author's death.80 For works made for hire, the duration of copyright lasts 95 years from publication or 120 years from creation, whichever is shorter.81 Because new works will not enter the public domain for a extended period, copyright term may seem an insubstantial limitation on copyright. However, a vast number of older works currently distributed under copyright are in fact approaching the end of their protected lives. "Fair use" permits limited copying of protected works for the purpose of criticism, comment, news reporting, teaching, scholarship or research.82 Determination as to the scope of "fair use" of copyrighted material is subject to fact sensitive case by case analysis and does not lend itself to a simple formulation. That said, the copyright act provides that factors used in determining whether a particular case constitutes fair use shall include:
U.S. Copyright law specifically excludes the copying of computer software from the definition of infringing activity in certain specific instances related to normal operation:
Under the First Sale Doctrine (as currently embodied at 17 U.S.C. Sec. 108), the owner of a particular lawfully made copy is entitled to sell or otherwise dispose of the possession of that copy without the authority of the copyright owner.89 While this clearly dictates that the owner of a book may resell, lend or give away that particular copy, rights in software are more complicated.90 First Sale and Software: First Sale Doctrine applies to an "owner", meaning the beneficiary of the total sale or transfer of rights in the copyrighted material.91 Software, however, is generally distributed under license rather than by outright sale.92 In these instances, the copyright owner can and normally does reserve the right to prohibit subsequent transfer of the license.93 The licensee's rights and disabilities are typically spelled out in an End User Licenese (EUL) accompanying the subject software.94 Conclusion Authors of original works in the U.S. and WTO signatory nations (most recently China), enjoy the exclusive right to copy, reproduce and distribute their original works. Copyright protections in the U.S. (and in most WTO signatory nations) include civil and criminal penalties for unlicensed copying, reproduction or distribution of a protected work. A party knowingly assisting an infringer in the unlawful reproduction or copying may also be liable to the owner. Recent U.S. legislation enacted to satisfy WIPO treaty obligations includes further civil and criminal penalties for circumventing an electronic copyright protection system designed to secure the rights to an original work in electronic form. Other WTO signatories are expected to pass parallel legislation. The "takedown" provisions included in the same U.S. legislation provide copyright holders with an efficient extra-judicial means for challenging unlicensed Internet distribution of their original works. While substantial, there are important limits on the copyright holder's interest in his or her original works. Most significantly, exclusive rights in the work are limited to a term of years and further admit "fair use" by third parties.
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