No Comments Written by Robert on May 23, 2008 – 11:53 pm

Copyright, a type of intellectual property, is a set of exclusive rights proscribed by national or international law for original works of authorship fixed in a tangible form of expression.

These works of authorship can include literary works such as poems, novels, and plays; movies; choreographic works; musical compositions; audio recordings; works of visual art such as drawings, paintings, photographs, and sculptures; software; radio and television broadcasts of live or taped performances; and in some jurisdictions, notably those in Europe, databases.

Most copyright statutes provide protection for a range of rights, which can include the right to reproduce, distribute, make derivative works (works that adapt the original work such as creating a screenplay from a book or creating a painting from a photograph), publicly display, or perform the work. These rights generally can be independently sold or licensed on an exclusive or non-exclusive basis. Violating these rights, that is, using work without the copyright holder’s permission, is infringement and a copyright holder may seek remedies including damages and an injunction to stop the unauthorized use.

Copyright protection attaches the moment a work has been expressed in a tangible form and it applies only to the expression; it does not protect ideas, concepts, facts, styles, or techniques that may be included in the work. To be eligible for protection, a copyrighted work generally must meet minimal standards of originality and exhibit a modicum of creativity.

The internationally recognized symbol for copyright is c., but copyright notice can also be written as “copr.” or by spelling out “copyright” followed by the date and the creator’s name.

Taken literally, copyright is the right to make copies of a work and to stop others from making copies without permission ( Copy). Copyright protection is not a natural right; it is a form of monopoly granted by the state. Because it is a monopoly, all copyright systems attempt to balance owner’s rights and user’s rights by limiting the duration of copyright protection.

In 2007, copyright protection lasts for the life of the author and, depending on the jurisdiction, continues for a minimum of fifty years and a maximum of seventy years after the author’s death. When copyright protection ends, the work becomes public domain and anyone can use the work without permission.

The idea of copyright did not exist prior to the invention of the printing press because copying a manuscript was a laborious manual process. Copyright, as the literal right to make copies, began as a publisher’s right in England in 1586 as a way for the government to maintain order among members of the book trade, organized as the Stationer’s Company.

England codified copyright in 1710 when it enacted the Statute of Anne, generally considered to be the first copyright law. The Statute of Anne shifted protection from publishers to authors, granting them a fourteen-year original term and a fourteen-year renewable term.

The United States passed copyright legislation in 1790, modeling its law after the Statute of Anne. The US law included the general idea that the government should promote knowledge by encouraging authors to create and disseminate work, but that neither the creator nor the public should be able to retain or appropriate all the benefits that flow from an original work of authorship.

In most common law systems, copyright laws do not include moral rights or droit moral. Those rights are provided separately, if at all, and generally provide weak protection. However, in France, Germany, and most other civil-law countries, copyright laws have two components: economic rights (copyright) and moral rights. Economic rights grant to the author the right to sell and license an original work of authorship and the rights can be ceded.

Moral rights grant the author the right of attribution, the right to share in the profit if the work increases in value, and the right to prevent the work from being altered or destroyed. Moral rights usually cannot be ceded. China’s copyright laws, codified as the Chinese Copyright Act (CCA) in 1990, generally follow common-law principles, but include stronger moral rights provisions.

The balance between owner’s rights and the need for the general public to be able to freely share ideas has always been difficult to maintain in copyright law. If owners could stop all unauthorized use, they could stifle commentary and criticism. To maintain the balance, copyright laws recognize that some unauthorized use must be permissible, particularly if the unauthorized use is for commentary or criticism, or for educational purposes.

Civil-law countries deal with the concept of permissible but unauthorized use through statutory provisions that codify the permitted conduct. If the use is not listed, then it is usually not permissible. Common-law jurisdictions achieve the balance through the concepts of fair use or fair dealing.

The idea underlying fair use or fair dealing is that some use of copyrighted material must be allowed even if the copyright holder doesn’t agree. Otherwise a copyright holder could close down the free exchange of ideas by preventing any use, however small, of a copyrighted work. Fair use allows someone to copy, publish, or distribute parts of a copyrighted work without permission, generally only for commentary, criticism, education, news reporting, or scholarship. In a fair-use analysis in the US, courts consider four factors: 1) the purpose and character of the use 2) the nature of the copyrighted work 3) the amount and substantiality of the portion used 4) the effect on the market for or value of the original work. Because these factors are “fact-specific” and thus have to be judged case-by-case, fair-use disputes must be litigated, which can be costly.

International copyright has always been complicated but is now significantly more complex due to rapid expansion of communication technology and the globalized economy. In response to the global trade in intellectual property, almost all countries who are signatories to the World Trade Organization (WTO) have tried to harmonize copyright and related laws through various treaties and agreements, chief among these being the Berne Convention for the Protection of Literary and Artistic Works, first adopted in 1886, and most recently amended in 1979. The Berne Convention established several principles of international copyright, including the key notion that a country must extend the same copyright protection to foreigners that it accords to its own authors. The Berne Convention also established minimum standards that all signatories must meet. Countries who meet the Berne minimal standards may provide their own specialized form of protection, so international copyright laws still remain less than uniform.

Copyright laws adapt to cultural and technological changes. They have been continually expanded in duration and extended to protect works not originally protected, such as software programs and databases. Today, however, copyright systems are threatened by the digital revolution. Some critics wonder if copyright can adapt to the twenty-first century.

The Internet and related technology devices have created new modes of expression, peer-to-peer (P2P) networks, instantaneous communication, and the ability to create an unlimited number of perfect copies, all of which challenge the monopoly structure of copyright. To stem unauthorized copies, content providers of music and movies developed copyright protection technology embedded directly onto a CD or DVD. Hackers responded with software programs to crack the encryption code and distributed the programs on the Internet.

Industry cried foul, and most legislatures worldwide passed laws to criminalize the dissemination of technology or computer programs created to allow users to circumvent copyright protection methods embedded in a CD or DVD. The US version, the Digital Millennium Copyright Act (DMCA) passed in 1998. Most European countries have amended national laws to implement the 2001 European Directive on copyright, which conforms to a 1996 World Intellectual Property Organization (WIPO) treaty that addresses the same issues as the DMCA.

Critics contend that these laws tilt the balance too far in favor of the copyright holder because they shift the traditional focus of copyright from protection toward criminalizing the creation and use of devices and software programs designed to circumvent copyright protection measures, whether or not the circumvention technology was employed by anyone and whether or not the use of the copyrighted material made possible by the circumvention would have been a copyright violation.

For the first time, copyright violation isn’t the crime; creating technological tools that can violate copyright is the crime. These laws have no fair use or fair dealing provisions so there is no instance in which breaking encryption code is legal, even for research or education. Given the economic stakes, the debate surrounding copyright is impassioned. Proponents defend the need to create economic incentives to encourage artists and authors to continue creating and to protect copyright holders from rampant piracy made possible by digital technology. Others believe that the idea of copyright protection is fundamentally sound, but that protection lasts too long.

They bemoan the loss of the intellectual “public commons.” Other critics call for abolishing all copyright because it is an industrial age notion and has no place in the technological world of P2P networks that could enable a virtually limitless number of international participants to have access to high-quality digital media and entertainment, on demand 24/7 from nearly any place. They believe that the expansive trend in copyright law will hamper the very potential of the digital revolution and that eventually all culture will be controlled by a few people or a few mega corporations. It is fair to say that both sides of the debate need to be heard and copyright laws will be revised once again.