All law is compromise: my right to swing my metaphorical elbows just so
far as they don't hit you in the metaphorical chin; to speak but not to libel; to read a modern novel, to sell or lend
it even, but never to copy or distribute copies without permission. And
compromise can be quite elegant, weighing the separate rights of individuals
against one another (and against society at large) in such a way that everyone
involved feels, more or less, that he has not been shorted. But any balance
tends toward amendment, collecting, over time, eccentricities and quirks
that come to overshadow the simplicity of the original compromise.
This is a discussion of copyright, a complex and often misunderstood mess
of revision that is very central to our collective culture, as it defines just which pieces of our art are really ours. This discusssion pertains, more specifically, to US copyright law, and is the first of two companion writeups: This one will concern itself
mainly with facts (what copyright is and how it got to be that way), the
second, "copyright extension," concentrates
on opinion-based matters, mostly concerning the amendment of copyright law and
extension of the length of copyright protection.
The purpose of copyright is often stated in terms of compensation: There is the suggestion
on the part of some copyright owners that they are somehow deserving of copyright due
to their production of a certain property. This intellectual property which they have
spent money and time producing is theirs, they own it, and they have a right to its fruits. There is a general understanding that artists and authors should be rewarded for the work they have done. These points are arguable from a practical point-of-view, but the stated and
intended purpose of copyright is not as a reward. Copyright exists as an encouragement toward
producing further works. Copyright exists, in the end, to encourage a vast pool of "useful arts"
that benefit society, that are owned by society, that can become the basis for works in the future. Copyright is a results-oriented policy, an engine driving the ultimate public domain.
A little history
Soon after the invention of the printing press in the late fifteenth century,
it became clear that the ability of printers to reproduce books cheaply and
quickly was a threat to publishers. Following a period in which publishers
policed the industry themselves, a British law was passed that created the
concept of copyright. The Statute of Anne, passed in 1710, established a
fourteen year period in which the owner of a work (the author) controlled
the copying of that work. It also allowed him one fourteen-year renewal.
After the American Revolutionary
War, but prior to the US Constitution, a number of states adopted copyright provisions
similar to the Statute of Anne. Unfortunately, many of these were
incompatible with one another. As a resolution to this problem, and in a
show of support for the benefits to literacy and learning that copyright
should bestow on the new country, the authors of the US Constitution included
the following language in 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.
This clause allowed for both copyright ("useful arts") and patent ("science")
legislation on the part of Congress. Three years later, the Copyright Act of 1790 was passed, implementing this clause. It granted authors of maps, charts, and books the "sole right and liberty of printing, reprinting, publishing and vending" that work for a similar period to the Statute of Anne and the prior state laws.
American copyright law was not amended significantly until 1831, when the initial length
of copyright was doubled (to twenty-eight years). In 1909, the renewal period was likewise
doubled. And, as a result of the newly-developing music industry, the scope of copyright was
widened, covering original works in general (instead of just books, maps, and charts).
Throughout the twentieth century, in anticipation of an international copyright standard
(most of Europe had, by 1909, granted copyright holders the term of the life of the author
plus fifty years), Congress passed a number of short extensions to copyright terms. The
intent was to prevent works that had not yet fallen into the public domain from doing so.
This culminated in the passage of the Copyright Revision Act of 1979, an extensive overhaul of copyright law. Extending copyright to life plus fifty years (in preparation for joining the Berne
Convention), it also codified many copyright concepts that had existed for years only as
legal precedent (fair use, for example, had been established in 1841) and outlining a set
of policies concerning libraries, including the use of photocopies for educational and archival purposes. This revision also granted copyright protection to unpublished works.
In 1988, the US joined the Berne Convention, a set of international copyright standards.
The main change in copyright law brought about by this was that all original works were now, by
default, protected by copyright. Prior to this, the author was required to affix the word "copyright," the abbreviation "copr.," or the symbol "©" to a work, along with the copyright owner's name and the year in which it was created if he wished to be granted protection. From 1989 onward, for a new work to be considered "public domain," it must
be explicitly marked to that effect.
The Audio Home Recording Act, a clarification of the rights of consumers to make home recordings and the rights of manufacturers to produce recording devices, was passed in 1992. It also granted musicians a small royalty on the sale of recording hardware.
In 1998, the Sonny Bono Copyright Term Extension Act was passed. Named for the recently-deceased musician-turned-lawmaker, it extended copyright by another twenty years. The Digital Millennium Copyright Act, commonly known as the DMCA, was also passed in 1998. It added provisions to copyright law that criminalized the circumvention of copy-protection technologies and to protect internet providers from liability should their subscribors violate copyright using the providers' services--provided they follow certain guidelines.
US Copyright FAQ
What is copyright?
Copyright is a monopoly granted by the government to the author or authors of an original work for a limited time. These authors have the sole right to reproduce, distribute copies, perform publically, or display publically the work in question. They also have the sole right to prepare derivative works. Copyrights are transferrable.
What can I copyright?
Copyright protection covers all "original works of authorship." These 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. These are quite flexible, and if it doesn't seem to fit in any of these catagories, it can probably safely classified as a "literary work." Copyright does not extend to cover ideas, facts, or processes.
What is fair use?
Fair use is the provision under copyright law that allows copyrighted material to be used, legally, without the permission of the copyright owner, in ways that would ordinarily violate that copyright. When a critic quotes a film or a novel in the course of a review, he is allowed to do so because of fair use. The only way to be certain whether a specific use falls under fair use is to test the matter in court. Relevant to the matter, though, are these questions: For what purpose was the work excerpted? How much of the work was used? What type of work was used? What effect did the use have upon the copyright owner? Educational, non-commercial use that is not damaging to the copyright owner seems to have quite a bit more leeway than commercial use that does.
There is some suggestion that the DMCA has changed fair use policy (though it states that it
does not). For a discussion of that question (perhaps not the most even-handed one), I direct you to here and here.
What is first sale?
First sale is the doctrine that once a work (a book, a CD, etc.) has been sold, the owner of that book or CD has the right to lend, re-sell, or "dispose of" it without restriction or royalty charges. The right to lend, however, does not apply in the case of computer software, following an amendment to the Copyright Act passed in 1990.
What is the public domain?
The public domain is the commons, the group of works that are free to use, reproduce, distribute, and everything else. Anything that is not protected by copyright is in the public domain.
How do I get a copyright?
Copyright is established the moment your work exists in a "fixed form." If you wrote it, it's already copyrighted. Or if you recorded it. Or painted it. And if you can't think of a form you can fix it in, it's probably not copyrightable.
Do I need to put one of those © things on it?
No. Prior to March 1, 1989, copyright works were required to bear "©," "Copyright," or "Copr.," along with the year of publication and the name of the copyright owner. Since that date, works are copyrighted by default, and are only placed in the public domain if they state explicitly that they are in the public domain.
Do I need to register my copyright?
No. You can register it if you really want to, making your copyright ownership a part of public record. To find out the current registration process, see http://www.copyright.gov. At the time of this writing, the cost of registration is $30, and the process is to send a completed registration form, your $30 fee, and a copy of the work in question, all in the same package, to the Library of Congress's Copyright Office.
What about a "poor man's copyright"?
This is the "mail it to yourself" strategy, keeping an unopened envelope that contains your work and has been postmarked at a prior date as proof you created the work. Sorry, but envelopes can be mailed unsealed. Postmarks can be faked. And if you really think you need this sort of protection, that registration is probably worth the $30 filing fee. With it, you get actual legal protection that would be admissable in court. But mailing it to yourself is a neat trick to show your friends, and you are guaranteed to get a package in the mail, so I suppose it's not completely worthless.
Can I copyright a name, a fact, an idea, a process...?
No. Names can be used as trademarks, and processes can be patented, but copyrights apply exclusively to original works that are placed in a fixed form.
Do I need to defend my copyright for it to remain valid?
No. That's probably trademarks you're thinking of. You retain your copyright rights, exclusively, as long as you do not transfer them, and as long as your copyright hasn't expired.
How long does my copyright last?
The rest of your life plus seventy years. Or, if it's a work-for-hire, it's either 95 years from date of publication or 120 years from creation (whichever is shorter).
Can I copyright email? Writeups?
You already do. Unless you declare that each email is in the public domain, every email you've written has been copyrighted. This goes for usenet, blogs, writeups on e2. Everything you write. And technically, every email you forward is a copyright violation if it doesn't contain language granting you permission to distribute it.
What about fan fiction and parodies?
With fan fiction, you can write it only if you have the copyright owner's permission. Preparing derivative works is one of the rights granted to the author
under copyright. To use characters, likenesses, stories, sound samples, etc. from a copyrighted work, you need permission--except in the case of fair use, which is often used to justify parodies (which would otherwise be considered derivative works). Parodies, as a form of criticism and as one type of derivative work that would likely never receive permission from the copyright owner, are granted a good deal of leeway legally.