Copyright

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Copyright symbol
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Copyright symbol
Intellectual property law
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Copyright is a set of exclusive rights regulating the use of a particular expression of an idea or information. At its most general, it is literally "the right to copy" an original creation. In most cases, these rights are of limited duration. The symbol for copyright is © (Unicode U+00A9), and in some jurisdictions may alternatively be written as either (c) or (C).

Copyright may subsist in a wide range of creative, intellectual, or artistic forms or "works". These include poems, theses, plays, and other literary works, movies, choreographic works (dances, ballets, etc.), musical compositions, audio recordings, paintings, drawings, sculptures, photographs, software, radio and television broadcasts of live and other performances, and, in some jurisdictions, industrial designs. Copyright is a type of intellectual property; designs or industrial designs may be a separate or overlapping form of intellectual property in some jurisdictions.

Copyright law covers only the particular form or manner in which ideas or information have been manifested, the "form of material expression". It is not designed or intended to cover the actual idea, concepts, facts, styles, or techniques which may be embodied in or represented by the copyright work. Copyright law provides scope for satirical or interpretive works which themselves may be copyrighted.[citation needed] For example, the copyright which subsists in relation to a Mickey Mouse cartoon prohibits unauthorized parties from distributing copies of the cartoon or creating derivative works which copy or mimic Disney's particular anthropomorphic mouse, but does not prohibit the creation of artistic works about anthropomorphic mice in general, so long as they are sufficiently different to not be imitative of the original. Other laws may impose legal restrictions on reproduction or use where copyright does not - such as trademarks and patents.

Copyright laws are standardized through international conventions such as the Berne Convention in some countries and are required by international organizations such as European Union or World Trade Organization from their member states.

Contents

[edit] History

For the history of copyright law, see History of copyright law.

[edit] Europe

[edit] French copyright laws

Further information: French copyright law and DADVSI

French copyright law is based on the Rights of the Author.

On 8 December 2005 the Tribunal de Grande Instance de Paris concluded that file sharing through peer-to-peer was not a crime [1]. The judgement was based on the right to "private copy" described in the Intellectual Property Code which includes the use of digital media [2].

On 7 March 2006, however, the National Assembly passed the DADVSI Act which implemented - with some modifications - the 2001 European Union Copyright directive. The DADVSI act makes peer-to-peer sharing of copyrighted works an offense. It does, however, allow for sharing of private copies of tape recording and other media.

[edit] United Kingdom copyright methodology

Main article: Copyright law of the United Kingdom

British law states that an individual's work is placed under copyright law as soon as it leaves that person's mind and is placed in some physical form, be it a painting, a musical work written in manuscript or an architectural schematic. Once in physical form, as long as it is an original work (in the sense of not having been copied from an existing work, rather than in the sense of being novel or unique), copyright in that work is automatically vested in (i.e. owned by) the person who put the concept into material form. There may be exceptions to this rule, depending on the nature of the work, whether it was created in the course of employment and the purposes for which the work was created. The UK copyright distinctively emphasizes the labour and skill[1] that has gone into the work, which is why some of its basic principle are sometimes referred to as the 'Sweat of the Brow' doctrine. This stands in contrast to the usual emphasis on creativity—most countries have adopted copyright laws that do not consider labour and skill as relevant. The term 'Unfair Use'[2] is sometimes used in this context to refer to the use of a work into which somebody has invested a lot of skill and labour, but where little or no creativity is present. This is mainly relevant for reproduction photography and retouching of public domain work and for 'simple' databases, where, in contrast to collections, no creativity was involved in selecting the records.

Evidentiary issues may arise if the person who authored a work has only their word to prove that the work is original and their own work. The author of an unpublished manuscript or little-known publication, which is remarkably similar to a popular novel, will have an uphill battle convincing a court that the popular novel infringes the copyright in their obscure work. Taking some precautionary steps may help to establish independent creation and authorship.

For example, when a web designer designs a webpage (based upon his own work) under a contract for services, the webmaster owns the copyright in at least the underlying code of that website. A common and simple practice to obtain evidence in favour of authorship is to place the copyright material in an envelope or package together with a document signed by several people stating that they have examined the work prior to it being sealed and that in their opinion it is original. Once this is done the package is mailed to the owner by recorded delivery, which helps to establish when the work was created, who the originator of the work is and that there are signatory validators prepared to state that it is original. Once this process is complete the package and contents may be able to be usable in a court of law as evidence of date of creation (and so priority) if necessary.

[edit] German Urheberrecht

Franz Zauleck's logo Laufendes Auge – ineligible for German copyright
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Franz Zauleck's logo Laufendes Auge – ineligible for German copyright

German Urheberrecht is a droit d'auteur style law, which means that there is a special emphasis on the relation between the work and its actual author. There is no corporate copyright in Germany and the fundamental rights cannot be transferred except by heritage. However, exclusive licenses are almost as powerful as copyright transfer (and, according to the law, such an exclusive license is given to the employer automatically if the work contract does not make a different arrangement). A significant difference is that licenses can only extend to known uses of the work, so if somebody submitted a scientific paper to a journal before the internet was a known use for them (1995 is usually assumed as a key date), the journal arguably did not obtain the rights for internet distribution according to the Urheberrecht.

Court decisions have set vastly different standards for the eligibility of works of applied art on the one hand and other types of work on the other, especially fine art. While the barrier is usually very low for fine art and protection is granted even for minimal creativity (dubbed 'kleine Münze'), there are extremely high standards for applied art to be reached for it to achieve copyright protection. This is so because Geschmacksmuster (design patents) and Schriftzeichengesetz (typeface patents) are seen as leges speciales for applied art such that the threshold of originality must not be assumed low for them. This has been confirmed by courts several times, especially for logos, but also for earrings.

Since the respective EU directive has been implemented, simple databases enjoy a very limited (15 years) 'sweat of the brow' like protection.

[edit] Spanish copyright law

The Spanish copyright is regulated in the Intellectual Property Law[3] formulated in 1987 and amended in 1996. Currently, the copyright holds during the lifetime of the author plus 70 years. It always assigns copyright to the author and he or she is not allowed to disclaim it.

The law explicitly allows the right to make private copies of copyrighted work without the author's consent for published audiovisual works if the copy is not for commercial use. To compensate authors, the law establishes a compensatory tax associated with certain recording media (CDs, DVDs, cassettes), managed through societies of authors and editors (as SGAE and CEDRO). Some consumer's associations and specialized lawyers contend that the current legislation allows file sharing (as with p2p networks) as this is not for profit and is for private use [4][5]. Additionally, the Penal Code explicitly requires the intention of commercial profit in order to commit a crime against the Intellectual Property [6].

[edit] United States copyright law

Main article: United States copyright law

The US Constitution allows Congress to grant exclusive rights to authors in Article I, Section 8, Clause 8, also known as the Copyright Clause, which also gives Congress the power to enact statutes: 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. 17 U.S.C. § 105, withholds copyright from all publications produced by the United States Government, and its agents or employees while in their employment. All such work is therefore in the public domain in some sense.

Congress first exercised this power with the enactment of the Copyright Act of 1790, and has changed and updated copyright statutes several times since. The Copyright Act of 1976, though it has been modified since its enactment, is currently the basis of copyright law in the United States.

The length of the copyright term within the United States was extended by the Sonny Bono Copyright Term Extension Act which made the copyright term the life of the author plus 70 years for works created after January 1, 1978. In the case of a work of corporate authorship (also known as "Work for Hire") the term will be 95 years from the date of first publication or 120 years from the date of creation, whichever expires first. This legislation was challenged in court and affirmed by the US Supreme Court in the landmark copyright decision, Eldred v. Ashcroft (2003), in which the Supreme Court agreed that the length of the copyright term (ie, during which the copyright holder has a monopoly on its exploitation) could be extended by Congress after the original act of creation and beginning of the copyright term, as long as the extension itself was limited instead of perpetual. The duration of U.S. copyright for works created before 1978 is a complex matter; however, works published before 1923 are all in the public domain. In the US, after the death of a copyright holder, heirs inherit the copyright. [7]

[edit] Tajikistan copyright law

Main article: Tajikistan copyright law

[edit] Australian Copyright Law

Main article: Australian copyright law

[edit] Trans-national copyright law

Main article: Berne Convention for the Protection of Literary and Artistic Works

The Berne Convention provides for national treatment of other countries' copyright. In other words, France must treat a work that is copyrighted in the UK as if it were copyrighted in France, receiving the protection of French (not UK) copyright law.

The protections of the Berne Convention are incorporated into the World Trade Organization's TRIPS agreement, thus making the Berne Convention practically world-wide.

[edit] Obtaining and enforcing copyright

Typically, a work must meet minimal standards of originality in order to qualify for copyright, and the copyright expires after a set period of time (some jurisdictions may allow this to be extended). Different countries impose different tests, although generally the requirements are low; in the United Kingdom there has to be some 'skill, originality and work' which has gone into it. However, even fairly trivial amounts of these qualities are sufficient for determining whether a particular act of copying constitutes an infringement of the author's original expression. In Australia, it has been held that a single word is insufficient to comprise a copyright work.

In the United States, copyright has relatively recently been made automatic (in the style of the Berne Convention), which has had the effect of making it appear to be more like a property right. Thus, as with property, a copyright need not be granted or obtained through official registration with any government office. Once an idea has been reduced to tangible form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape or a letter), the copyright holder is entitled to enforce his or her exclusive rights. However, while a copyright need not be officially registered for the copyright owner to begin exercising his exclusive rights, registration of works (where the laws of that jurisdiction provide for registration) does have benefits; it serves as prima facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney's fees (whereas in the USA, for instance, registering after an infringement only enables one to receive actual damages and lost profits). The original holder of the copyright may be the employer of the actual author rather than the author himself if the work is a "work for hire". Again, this principle is widespread; in English law the Copyright Designs and Patents Act 1988 provides that where a work in which copyright subsists is made by an employee in the course of that employment, the copyright is automatically assigned to the employer.

Copyrights are generally enforced by the holder in a civil law court, but there are also criminal infringement statutes. Criminal sanctions are generally aimed at serious counterfeiting activity, but are now becoming more commonplace as copyright collectives such as the RIAA are, more and more, targeting the file sharing home Internet user. Thus far however, these cases have usually been settled outside of court, with demands of payment of several thousand dollars accompanied by nothing more than a threat to sue the file sharer, which will be ruinous to many defendants in practice, thus such cases rarely make their way to civil law courts.

It is important to understand that absence of the copyright symbol does not mean that the work is not covered by copyright. The work once created from originality through 'mental labor' is instantaneously considered copyrighted to that person.

[edit] Copyright notices

Use of a copyright notice — consisting of the letter C inside of a circle (that is, "©"), the abbreviation "Copr.", or the word "Copyright", followed by the year of the first publication of the work and the name of the copyright holder — was part of previous United States statutory requirements. (Note that the letter C inside of parentheses ("(c)") has never been an officially recognized designator.) But since 1976, when the U.S. passed a new Copyright Act that followed the model of the Berne Convention, the use of copyright notices has become optional to claim copyright, as the Berne Convention makes copyright automatic.[8] However, notice of copyright (using these marks) does have consequences in terms of allowable damages in an infringement lawsuit in some places.

The phrase All rights reserved was once a necessary formal notice that all rights granted under existing copyright law are retained by the copyright holder and that legal action may be taken against copyright infringement. It was provided as a result of the Buenos Aires Convention of 1910, which required some statement of reservation of rights to grant international coverage in all the countries that were signatory to that convention. While it is commonplace to see it, this notice is now superfluous, as every country that is a member of the Buenos Aires Convention is also a member of the Berne Convention, which hold a copyright to be valid in all signatory states without any formality of notice.

This phrase is sometimes still used even on some documents to which the original author does not retain all rights granted by copyright law, such as works released under a copyleft license. It is, however, only a habitual formality and is unlikely to have legal consequences.

[edit] The exclusive rights of the copyright holder

Several exclusive rights typically attach to the holder of a copyright:

  • to produce copies or reproductions of the work and to sell those copies (including, typically, electronic copies)
  • to import or export the work
  • to create derivative works (works that adapt the original work)
  • to perform or display the work publicly
  • to sell or assign these rights to others

The phrase "exclusive right" means that only the copyright holder is free to exercise the attendant rights, and others are prohibited using the work without the consent of the copyright holder. Copyright is often called a "negative right", as it serves to prohibit people (e.g. readers, viewers, or listeners, and primarily publishers and would be publishers) from doing something, rather than permitting people (e.g. authors) to do something. In this way it is similar to the unregistered design right in English law and European law. The rights of the copyright holder also permit him/her to not use or exploit their copyright for its duration. This means an author can choose to exploit their copyright for some of the duration and then not for the rest, vice versa, or entirely one or the other.

There is however a critique which rejects this assertion as being based on a philosophical interpretation of copyright law as an entity, and is not universally shared. There is also debate on whether copyright should be considered a property right or a moral right. Many argue that copyright does not exist merely to restrict third parties from publishing ideas and information, and that defining copyright purely as a negative right is incompatible with the public policy objective of encouraging authors to create new works and enrich the public domain.

The right to adapt a work means to transform the way in which the work is expressed. Examples include developing a stage play or film script from a novel; translating a short story; and making a new arrangement of a musical work.

[edit] Parodies

Although a parody can be considered a derivative work under United States Copyright Law, it can be protected under the fair use doctrine, which is codified in 17 USC § 107. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work. (See Campbell v. Acuff-Rose Music, Inc.)

[edit] Limits and exceptions to copyright

Main article: Limitations and exceptions to copyright

[edit] Idea-expression dichotomy and the merger doctrine

Main article: Idea-expression divide

A copyright covers the expression of an idea, not the idea itself — this is called the idea/expression or fact/expression dichotomy. For example, if a book is written describing a new way to organize books in a library, a copyright does not prohibit a reader from freely using and describing that concept to others; it is only the particular expression of that process as originally described that is covered by copyright. One might be able to obtain a patent for the method, but that is a different area of law. Compilations of facts or data may also be copyrighted, but such a copyright is thin; it only applies to the particular selection and arrangement of the included items, not to the particular items themselves. In some jurisdictions the contents of databases are expressly covered by statute.

In some cases, ideas may be capable of intelligible expression in only one or a limited number of ways. Therefore even the expression in these circumstances is not covered. In the United States this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. Merger is often pleaded as an affirmative defense to charges of infringement. That doctrine is not necessarily accepted in other jurisdictions.

[edit] The first-sale doctrine and exhaustion of rights

Main articles: First-sale doctrine and Exhaustion of rights

Copyright law does not restrict the owner of a copy from reselling legitimately obtained copies of copyrighted works, provided that those copies were originally produced by or with the permission of the copyright holder. It is therefore legal, for example, to resell a copyrighted book or CD. In the United States this is known as the first-sale doctrine, and was established by the courts to clarify the legality of reselling books in second-hand bookstores. Some countries may have parallel importation restrictions that allow the copyright holder of their licensee to control the aftermarket. This may mean for example that a copy of a book that does not infringe copyright in the country where it was printed does infringe copyright in a country into which it is imported for retailing. The first-sale doctrine is known as exhaustion of rights in other countries and is a principle which also applies, though somewhat differently, to patent and trademark rights. It is important to note that the first-sale doctrine permits the transfer of the particular legitimate copy involved. It does not permit making or distributing additional copies.

In addition, copyright, in most cases, does not prohibit one from acts such as modifying, defacing, or destroying his or her own legitimately obtained copy of a copyrighted work, so long as duplication is not involved. However, in countries that implement moral rights, a copyright holder can in some cases successfully prevent the mutilation or destruction of a work that is publicly visible.

[edit] Fair use and fair dealing

Main articles: Fair use and Fair dealing

Copyright does not prohibit all copying or replication. In the United States, the fair use doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. Section 107, permits some copying and distribution without permission of the copyright holder or payment to same. The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider in a fair use analysis. Those factors are:

  1. the purpose and character of your use
  2. the nature of the copyrighted work
  3. what amount and proportion of the whole work was taken, and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

In the United Kingdom and many other Commonwealth countries, a similar notion of fair dealing was established by the courts or through legislation. The concept is sometimes not well defined; however in Canada, private copying for personal use has been expressly permitted by statute since 1999. In Australia, the fair dealing exceptions under the Copyright Act 1968 (Cth) are a limited set of circumstances under which copyright material can be legally copied or adapted without the copyright holder's consent. Fair dealing uses are research and study; review and critique; news reportage and the giving of professional advice (ie legal advice). Under current Australian law it is still a breach of copyright to copy, reproduce or adapt copyright material for personal or private use without permission from the copyright owner. Other technical exemptions from infringement may also apply, such as the temporary reproduction of a work in machine readable form (eg, in an information technology storage system).

In the United States the AHRA (Audio Home Recording Act Codified in Section 10, 1992) prohibits action against consumers making noncommercial recordings of music, in return for royalties on both media and devices plus mandatory copy-control mechanisms on recorders.

Section 1008. Prohibition on certain infringement actions
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Later acts amended US Copyright law so that for certain purposes making 10 copies or more is construed to be commercial, but there is no general rule permitting such copying. Indeed making one complete copy of a work, or in many cases using a portion of it, for commercial purposes will not be considered fair use. The Digital Millennium Copyright Act prohibits the manufacture, importation, or distribution of devices whose intended use, or only significant commercial use, is to bypass an access or copy control put in place by a copyright owner. An appellate court has held that fair use is not a defense to engaging in such distribution.

It is absolutely vital to remember that copyright regimes can and do differ between countries, even countries which both adhere to the same copyright Convention. It would be dangerous to assume that an activity permitted by the laws of one country is necessarily permitted elsewhere.

[edit] Compulsory license

Main article: Compulsory license

A compulsory license is an exception to copyright, pursuant to which another party can exercise one or more of the copyright's exclusive rights without having to obtain the copyright holder's permission (hence "compulsory") but will have to pay a licensing fee.

Compulsory licenses are often justified as a governmental correction to market failure.

The common saying among musicians that one can always "cover" someone else's song is, though not entirely correct, a reflection of the fact that in the United States, musical works are subject to compulsory licenses.

[edit] Criticism

Main article: Philosophy of copyright

Critics of copyright as a whole fall broadly into two camps: Those who assert that the very concept of copyright has never been of net benefit to society, and has always served simply to enrich a few at the expense of creativity; and those who assert that the existing copyright regime must be reformed to maintain its relevance in the new Information society. The French droit d'auteur ("Rights of the Author"), which influenced the 1886 Berne Convention for the Protection of Literary and Artistic Works, must also be noted as a significant alternative to the usual Anglo-Saxon concept of copyright.

Among the latter group, there are also some who continue to agree with copyright as a way to grant authors rights, but feel that it "outlives its welcome" by granting copyright for too long (eg, far beyond the lifetime of the author), and is therefore of little direct benefit to him or her. The prolongation of copyright term is commonly attributed to effective corporate lobbying, based on a desire for the continuance of a profitable monopoly. In the US, this is often phrased as a conspiracy to 'control the Mouse' (meaning Mickey Mouse, a copyrighted character controlled by the Disney Company and who would have moved into the public domain save for such an extension).

To many critics, the general problem is that the current (international) copyright system undermines its own goal (Boyle 1996, 142). The concepts of the public domain and the intrinsic freedom of information are necessary precepts for creators to be able to build on published expression. But these are gradually being eroded, as copyright terms are repeatedly extended to last beyond the lifetime of the audience which experienced and knows of the original work.

Other copyright scholars believe that, regardless of contemporary advances in technology, copyright remains the fundamental way by which authors, sculptors, artists, musicians and others can fund the creation of new works, and that absent legal protection of their material interests, many valuable books and artworks would not be created. They remind us that the alternative to the modern, market-driven copyright system was the patronage of governments and aristocracies, with obvious great potential for the patrons to limit and censor the kinds of works being produced. The public interest is, arguably, served even by repeated extension of copyright terms to encompass multiple generations beyond the copyright holder's life, not only because many "authors" and copyright holders are corporations with the ability to make new investments in older works (for example, the restoration of old movies), but also because the right of an author's heirs to continue to profit from a copyrighted work may provide a substantial part of the incentive to create. Another effect of the repeated extension of copyright term is that current authors are shielded from competition from a wide public domain. By the time current works enter the public domain, they will have almost always have become obsolete (though the persistent publication and sale of classic literature is a notable exception).

The recent success of free software projects such as GNU/Linux, Mozilla Firefox, and the Apache web server has demonstrated that quality works can be created even in the absence of a copyright-enforced monopoly rent [9]. Instead, these products use copyright to enforce their license terms, which are designed to ensure the free nature of the work, rather than securing exclusive rights for the holder for monetary gain; such a license is called a copyleft, free software license, or open source license.

Even in more traditional forms such as prose, some authors, such as Cory Doctorow, retain the copyright to their work but license it for free distribution (for example under a Creative Commons licenses). This has the benefit of providing a structured scheme under which authors can loosen some of the barriers that copyright imposes on others, allowing them to partially contribute the work to the community (in the form of giving a general grant on copying, reproduction, use or adaptation subject to certain conditions) while retaining other exclusive rights they hold in it.

But defenders of the present system of strong copyrights argue that it has been largely successful in financing the creation and distribution of a wide variety of works, especially those requiring significant labor and capital. Moderate scholars seem to support that view while recognizing the need for exceptions and limitations, such as the fair use doctrine. Notably, a substantial portion of the current U.S. Copyright Act (sections 107-120) is devoted to such exceptions and limitations.

Copyright can also be used to stifle political criticism. For example, in the US the contents of talk shows and similar programs are covered by copyright. Robert Greenwald, a director of Uncovered: The Whole Truth About the Iraq War documentary was refused the right to use a clip of a George W. Bush interview from NBC's Meet the Press. Although the fair use provisions of statute and common law may apply in such cases, the risks of loss in court should there be a lawsuit and pressure from insurance companies, who regard use of almost anything (eg, three words forming the opening of a song, though not actually sung by one of a group of children) without permission as too risky, usually precludes use of materials without explicit permission, and so without a license fee.

In the US in 2003, controversial changes implemented by the Sonny Bono Copyright Term Extension Act extending the length of copyright under U.S. copyright law by 20 years were challenged, unsuccessfully, in the United States Supreme Court. The Court, in the case called Eldred v. Ashcroft, held inter alia that in placing existing and future copyrights in parity in the CTEA, Congress acted within its authority and did not transgress Constitutional limitations. Other jurisdictions have enacted legislation to provide for similar extensions of the copyright term.

Copyright is also conceived by some to be an "artificial barrier" in that "expressions" could be freely exchanged between individuals and groups if there were no copyright or other legal restrictions preventing. Such people believe that as the state does not necessarily possess the moral authority to enact copyright laws, individuals may vary in their observation of such laws. As noted above, others disagree with that, believing that the copyright system, which arises from provisions in the U.S. Constitution, has made and continues to make a valuable even essential contribution to the creation and dissemination of works. They also point out the social dangers inherent in the view that each individual is entitled to judge the "moral authority" of laws and to observe them or not according to individual judgments.

Copyright concepts are under challenge in the modern era, primarily from the increasing use of peer to peer filesharing. Major copyright holders, such as the major record labels and the movie industry, blame the ease of copying for their decreasing profits. Other alternatives, such as poor product content, are dismissed as possible reasons. Public interest groups, major corporations and the like, are entering the public education system to teach the curriculum from their perspectives. The lobbying group for the MPAA provide a curriculum entitled What's the Diff? taught by a group of volunteers called Junior Achievement. The Business Software Alliance also has their own curriculum program called Play it Cybersafe, which is distributed to school children through a magazine called The Weekly Reader. There seems to be a general consensus amongst assorted interests in the USA that there needs to be some curriculum materials for school-aged children about copyright issues. A public-accessible Wiki has been installed by Downhill Battle to build a copyright curriculum called Copyright Curriculum for teachers to download and use in their classrooms. The American Librarian Association will also be releasing their own curriculum for librarians to distribute in winter 2004.

[edit] Other aspects

[edit] Transfer and licensing

A copyright, or aspects of it, may be assigned or transferred from one party to another. For example, a musician who records an album will often sign an agreement with a record company in which the musician agrees to transfer all copyright in the recordings to the company in exchange for royalties and other considerations. The creator (and original copyright holder) benefits, or expects to, from production and marketing capabilities far beyond those of the author. In the digital age of music, music may be copied and distributed at minimal cost through the Internet, however the record industry attempts to provide promotion and marketing for the artist and his work so it can reach a much larger audience. A copyright holder need not transfer all rights completely, though many publishers will insist. Some of the rights may be transferred, or else the copyright holder may grant another party a non-exclusive license to copy and/or distribute the work in a particular region or for a specified period of time. A transfer or licence may have to meet particular formal requirements in order to be effective; see section 239 of the Australia Copyright Act 1968 (Cth). Under Australian law, it is not enough to pay for a work to be created in order to also own the copyright. The copyright itself must be expressly transferred in writing.

Under the U.S. Copyright Act, a transfer of ownership in copyright must be memorialized in a writing signed by the transferor. For that purpose, ownership in copyright includes exclusive licenses of rights. Thus exclusive licenses, to be effective, must be granted in a written instrument signed by the grantor. No special form of transfer or grant is required. A simple document that identifies the work involved and the rights being granted is sufficient. Non-exclusive grants (often called non-exclusive licenses) need not be in writing under U.S. law. They can be oral or even implied by the behavior of the parties. Transfers of copyright ownership, including exclusive licenses, may and should be recorded in the U.S. Copyright Office. (Information on how to do that is available on the Office's web site.) While recording is not required to make the grant effective, it offers important benefits, much like those obtained by recording a deed in a real estate transaction.

Copyright may also be licensed. Some jurisdictions may provide that certain classes of copyrighted works be made available under a prescribed statutory license (eg, musical works in the United States used for radio broadcast or performance). This is also called a compulsory license, because under this scheme, anyone who wishes to copy a covered work does not need the permission of the copyright holder, but instead merely files the proper notice and pays a set fee established by statute (or by an agency decision under statutory guidance) for every copy made. Failure to follow the proper procedures would place the copier at risk of an infringement suit. Because of the difficulty of following every individual work, copyright collectives or collecting societies and performing rights organizations (such as ASCAP, BMI, RIAA and MPAA) have been formed to collect royalties for hundreds (thousands and more) works at once. Though this market solution bypasses the statutory license, the availability of the statutory fee still helps dictate the price per work collective rights organizations charge, driving it down to what avoidance of procedural hassle would justify.

[edit] Copyright and file sharing

Copyrighted works copied onto digital media are easily and trivially exactly copied via file sharing. Attempts to prevent this have been largely unsuccessful, and file sharing has usually not resulted in severe consequences for the violators, though some organizations such as the RIAA and the MPAA have begun to sue individual violators they can identify, and to force sharing networks to either shut down or pay damages or both. However, producers of copyrighted material (ie, publishers) often attribute losses in their sales to online copying, yet they generally continue to produce material and make profits. To defenders of unauthorized file sharing, this lack of apparent ill-effect has been gradually eroding the belief that copyright as presently constructed is indispensable. A few artists actually support file sharing of their own works, arguing that it expands their audience to include people who would not otherwise be able or willing to legally purchase their material. The recording and motion picture industries, however, maintain that unauthorized file sharing, along with the production and sale of pirated hard copies of CDs and DVDs, have resulted in billions of dollars of lost sales. They attribute their continuing success to the fact that most people still obtain music, and especially movies, through authorized channels of distribution, a situation they hope to maintain by increasing the availability of authorized online services (such as Apple's iTunes).

It can be argued that, rather than criminalize millions of file sharers around the world who now routinely use the Internet to commit acts which can be argued breach copyright in this or that jurisdiction. Private enforcement of copyright having proven essentially ineffective, copyright holders have attempted to use the legal system to apply pressure on such users to purchase rather than copy their products. Bill Gates is on record as saying that there is no way to technically prevent copyrighted digital material from being copied; if so, future attempts to enforce control of copyrighted material may become uneconomic. As well as remaining unpopular among many. In the meantime, companies or individuals held by a court to have infringed copyright may be required to pay substantial amounts in damages. A recent and highly visible example is the Australian Kazaa case, Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242 (5 September 2005); the company operating the Kazaa file-sharing system, and individuals associated with it, were held to have authorised infringement of copyright in musical recordings by their participation. The recording industry is expected to seek multimillion dollar damages.


[edit] Brief comparison with similar legal rights

Copyright law covers the creative or artistic expression of an idea. Patent law covers inventions. Trademark law covers distinctive signs which are used in relation to products or services as indicators of origin. Registered designs law covers the look or appearance of a manufactured or functional article. Trade secret law covers secret or sensitive knowledge or information.

Although copyright and trademark laws are theoretically distinct, more than one type of them may cover the same item or subject matter. For example, in the case of the Mickey Mouse cartoon, the image and name of Mickey Mouse would be the subject of trademark legislation, while the cartoon itself would be subject to copyright. Titles and character names from books or movies may also be trademarked while the works from which they are drawn may qualify for copyright.

Another point of distinction is that a copyright (and a patent) is generally subject to a statutorily-determined term, whereas a trademark registration may remain in force indefinitely if the trademark is periodically used and renewal fees continue to be duly paid to the relevant jurisdiction's trade marks office or registry. Once the term of a copyright has expired, the formerly copyrighted work enters the public domain and may be freely used or exploited by anyone. Courts in the United States and the United Kingdom have rejected the doctrine of a common law copyright. Public domain works should not be confused with works that are publicly available. Works posted in the internet for example, are publicly available, but are not generally in the public domain. Copying such works therefore, such as by posting them in a Wikipedia article, may violate the author's copyright.

[edit] Useful Articles

If a pictorial, graphic or sculptural work is a useful article, it is protected only if its aesthetic features are separable from its utilitarian features. A useful article is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. The are must be separable from the functional aspect to be protected under copyright law.

There are two primary approaches to the separability issue: physical separability and conceptual separability. Physical separability is the ability to take the aesthetic thing away from the functional thing. Conceptual separability can be found in several different ways. It may be present if the useful article is also shown to be appreciated for its aesthetic appeal or by the design approach, which is the idea that separabilty is only available if the designer is able to make the aesthetic choices that are unaffected by the functional considerations. A question may also be asked of whether an individual would think of the aesthetic aspects of the work being separate from the functional aspects.

There are several different tests available for conceptual separability. The first, the Primary Use test, asks how is the thing primarily used, art or function? The second, the Marketable as Art test, asks can the article be sold as art, whether functional or not. This test does not have much backing, as almost anything can be sold as art. The third test, Temporal Displacement, asks could an individual conceptualize the article as art wihtout conceptualizing functionality at the same time. Finally, the Italic textDenicolaItalic text testsays that copyrightability should ultimately depend on the extent to which the work reflects the artistic expression inhibited by functional consideration. If something came to have a pleasing shape because there were functional considerations, the artistic aspect was constrained by those concerns.

[edit] How long copyright lasts

Copyright subsists for a variety of lengths in different jurisdictions, with different categories of works and the length it subsists for also depends on whether a work is published or unpublished. In most of the world the default length of copyright for many works is either life of the author plus 50 years, or plus 70 years. Copyright in general always expires at the end of the year concerned, rather than on the exact date of the death of the author. (The right to reclaim a copyright--or "terminate the transfer" of a copyright--commences and ends on the anniversaries of exact dates in the United States.)

So when can one conclude that a book is in the public domain? In the United States, all books and other items published before 1923 have expired copyrights and are in the public domain, and all works created by the U.S. Government, regardless of date, enter the public domain upon their creation. But if the intended exploitation of the book includes publication (or distribution of a film based on the book) outside the U.S., the terms of copyright around the world must be considered. If the author has been dead more than 70 years, the work is in the public domain in most, but not all, countries. In Italy and France, there are wartime extensions that could increase the term by approximately 6 years in Italy and up to about 14 in France. Some works are covered by copyright in Spain for 80 years after the author's death.

[edit] Moral rights

Main article: Moral rights

Many countries recognize certain moral rights of the author of a copyrighted work. Two key moral rights are the right not to have the work altered or destroyed without consent, and the right to be attributed as the author of the work.

The Monty Python comedy troupe famously managed to rely on moral rights in 1975 in legal proceedings against American TV network ABC for airing re-edited versions of Monty Python's Flying Circus.

The American exclusive rights tradition is inconsistent with the notion of moral rights as it was constituted in the Civil Code tradition stemming from post-Revolutionary France. In the United States, exclusive rights are statutory, defined and shaped by congress, but are required by a Constitutional clause. The first major copyright case in the United States, Wheaton v. Peters, established that copyright was not a natural right nor a common law right. When the United States signed the Berne Convention, they stipulated that the Convention's "moral rights" provisions were addressed sufficiently by other statutes, such as laws covering libel and slander.

In most of Europe it is not possible for authors to assign their moral rights (unlike the copyright itself, which is regarded as an item of property which can be sold, licensed, lent, mortgaged or given like any other property). They can agree not to enforce them (and such terms are very common in contracts in Europe). There may also be a requirement for the author to 'assert' these moral rights before they can be enforced. In many books, for example, this is done on a page near the beginning, in and amongst the British Library/Library of Congress data.

Some European countries also provide for artist resale rights, which mean that artists are entitled to a portion of the appreciation of the value of their work each time it is sold. These rights are granted in respect of a non Anglo-Saxon tradition -- the droits d'auteur concept rather than copyright. Droits d'auteur, and most legislation implementing it, also grants all creators various moral rights beyond the economic rights recognized in most copyright jurisdictions (see also parallel import).

[edit] Typefaces

In the United States, typeface designs are not covered by copyright, but may be covered by design patents if sufficiently novel. Germany (in 1981) passed a special law for typeface protection (Schriftzeichengesetz). It adds some specific extensions to the design patent law (Geschmacksmustergesetz) such that typefaces can be registered as designs.

The United Kingdom (in 1989) have passed a law making typeface designs copyrightable. The British law is retroactive, so designs produced before 1989 are also copyrighted if the copyrights would not have already expired.

[edit] Provisions for the handicapped

In the U.S., there is specific statutory provision for reproduction of material for the blind or other persons with disabilities. Specific legislation permits the reproduction of copyright works in Braille, audio. electronic, Web-Braille, or other necessary formats The program is administered by the National Library Service for the Blind and Physically Handicapped (NLS).

[edit] Unusual copyright grants

On rare occasions, rights can be granted outside of usual legislation. When the current UK copyright legislation was debated in Parliament, former Prime Minister Lord Callaghan of Cardiff successfully proposed an amendment entitling the Great Ormond Street Hospital for Sick Children to indefinitely retain the rights to payments of royalties for performances of Peter Pan. This privilege can be seen explicitly written into Schedule 6 of the Act.

The King James Version of the Bible also has an unusual status: While it is in the public domain throughout most of the world, production in the UK must be authorized by the Crown. Lily's Latin Grammar was also under perpetual crown copyright as of 1911.[10]

[edit] Registering copyright

Main article: Copyright registration

[edit] Registering copyright in the United States

While copyright in the United States automatically attaches upon the creation of an original work of authorship, registration with the Copyright Office puts a copyright holder in a better position if litigation arises over the copyright. A copyright holder desiring to register his or her copyright should do the following:

  1. Obtain and complete appropriate form.
  2. Prepare clear renditon of material being submitted for copyright
  3. Send both documents to U.S. Copyright Office in Washington, D.C.

[edit] See also

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[edit] Idea/Expression Dichotomy

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