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 . . .
-- Article I, Section 8, U.S. Constitution
As the information age progresses, more and more work becomes available online and digital copying becomes easier. In response, protection of a creator's intellectual property becomes more important. This protection of "works of original authorship" comes primarily from copyright laws.
The first copyright law was passed in May 1790. Since then, the laws have been frequently changed and updated, which can make it confusing to determine what is still covered and which works have become part of the public domain, where they can be used by anyone. Also, there have been many changes in what needs to be done to protect a work and in how long that protection lasts.
In this paper, the basics of copyright laws are examined, as well as quite recent amendments passed in response to changing technologies. Fair use and the exceptions allowed for libraries are explored. The paper concludes with a few predictions for the future based on the current law.
Under current copyright laws, any tangible "original work of authorship" is protected. The term tangible applies even if a machine or device is necessary to actually perceive the work, as in the case of a cassette player needed to play a recorded song.
Since the 1976 Copyright Act, the owner of a copyright has the following exclusive rights:
It is also helpful to review what is NOT covered by copyright. First, nothing that is not in tangible form, such as things spoken yet never written. Dramatic and choreographic works are covered only if they are recorded in some way, such as in a script or in some form of notation. Fonts, short phrases, titles, slogans, symbols, etc are not covered. (These things may be covered by trademark, however.) Ideas, facts, statistics, public knowledge, and most government publications are not covered. Patents (not copyright) protect the sole right to the production of an invention.
Current copyright starts at the instant of creation of the work -- as soon as it is placed in tangible form. Since 1989, thanks to the Berne Convention, it is not even necessary to include the copyright symbol or to officially publish a work to received this protection. Official registration is necessary for any legal actions or lawsuits, however. This can be done just before a suit is filed, but doing it when the work is produced means that it is much less likely that there will be complications, such as someone else claiming to be the author of the work. It is also still recommended to include the copyright symbol as an explicit statement of copyright coverage and a public notice of who the owner of that copyright is. The correct form is: © [Date work was created] [Name of copyright holder], e.g., ©2000 Zach Tomaszewski.
Copyrights before 1978 had to renewed. For example, works created between 1964 and 1978 can be extended another 67 years after the first 28 years of coverage. Nowadays, copyright simply extends until 70 years after author's death. This 70 years includes the recent 20 years of extra coverage added by the Sonny Bono Copyright Term Extension Act.
A copyright is treated as personal property. As such, it can been deeded, sold, traded, or given away. The copyright owner may choose to transfer exclusive control of her work to another; such a transfer requires a written, signed document recording the transaction. Present law, with some exceptions, grants a termination of grant of rights after 35 years. The copyright owner may also grant non-exclusive rights for limited use, such as permission for limited copying. This non-exclusive transfer does not require a written document. If this permission is not granted, the copyright holder remains the sole person legally allowed to reproduce or perform the work.
Since ownership of a copyright can pass from one person to another, it does not always follow that the author is the holder of the copyright. "Works for hire" belong to the hiring person or organization from the moment they are created.
Ownership of a work does not grant copyright. The decision to reproduce, publish, display, or perform a work is solely that of the copyright holder for that work. (Some limited copying can be done without permission if it falls under the "fair use" clause, discussed below.)
There is no such thing as international copyright. There are many treaties, international conferences, and multinational agreements, but how copyrights are protected in a specific country depends on the laws of that country. (As such, the laws and rulings discussed here are all related to United State law.)
Often mentioned as opposed to copyright protection, it is important to note that the Freedom of Information Act does not apply to persons or business. It rules only that federal agencies must supply their documents to public inspection upon request. The law does not apply to Congress, state agencies, and courts, which all have their own rules. The law has "nine exemptions and three exclusions" for various agencies not covered by this act. 2
Recently there has been a lot of discussion concerning the Digital Millennium Copyright Act, signed into law in 1998 by President Clinton. The law implements many of the World Intellectual Property Organization (WIPO) treaties with other countries. It mostly addressed concerns and clarifies existing laws concerning copyright definitions.
The law discourages circumvention of technological barriers to copying, such as disabling a copy-restricting feature of a device. It actively prohibits circumvention of technological barriers to access, such as violating a password-protected database. The reason for the slightly more relaxed ruling concerning copying is that "fair use" may warrant some copying that requires circumventing barriers. However, fair use never excuses violating access restrictions. (Fair use is discussed in more detail below.)
Of course there are some exceptions to this ruling. Law enforcement, intelligence, and some other government agencies are not restricted in circumventing access-prevention technologies. Some cases of access-control circumvention is excusable in research concerning encryption. The law should really be consulted for the complete list of exceptions and exemptions.
The Digital Copyright Millennium Act also grants limited liability to those Internet service providers that do not censor or modify the content available to users. Though they are not required to monitor users actions, should they learn about repeat copyright infringers using their service, they are required suspend access to that user.
Other modifications involve granting limited liability to providers of the following:
There are numerous clarification and exceptions to these rules, but these are the general change. These changes seem to keep in the mood of existing copyright legislation and merely clarify the status of practices being performed daily on the Internet.
Another recently discussed copyright law is the Audio Home Recording Act of 1992. This amendment was basically an agreement between the recording industry, numerous musical artists, songwriter, and the consumer electronics industry, which was then put to Congress who passed it into law. The law was prompted by new digital devices that could make endless, serial copies. Such devices include digital audio cassette players, minidiscs, and DAT players. Unlike videos and other analog devices, copies of copies were of the same quality as the original work.
In response to complaints from copyright holders, the companies agreed to add certain circuitry to the devices they produced that would prevent numerous serial copies. They would also pay a small amount in royalties--about 2% of the market cost of the machines. In return, the copyright holders agreed to not file further copyright suits against the manufacturers. Users are allowed to non-commercially distribute the limited number of copies they make.
This law played a role in the current suit against the Napster internet music sharing service. It is generally thought that Napster should not gain protection through this amendment because Napster is not one of the listed devices, nor do they pay the small royalty percentage.
I find it interesting to note that, aside from the original agreement with participating copyright holders, this law does not explicitly protect today's creators' copyrights. It likely grants them royalties and so they are unlikely to complain, yet still they have no explicit say under this law concerning copying of their work on the relevant devices.
There is a limitation on a copyright holder's exclusive control over her work. This "fair use" clause is intended to protect the free exchange of ideas. Generally, to avoid plagiarism, people choose to quote or cite other authors to support their claims. The fair use clause states that such brief copying "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."6
But the lines can be very fuzzy. Indeed, most disputed fair use instances are decided on a case-by-case basis. Things usually considered in determining fair use are whether the infringement resulted in any commercial gain, whether it was for educational purposes, what the nature of the work is, the effect of copying on the market value of the work, and the percentage of the work copied.
People frequently only consider the copying side of the copyright infringement. Yet the law also prohibits unauthorized performance or displaying of a work, including digital audio transmission. 1 This aspect of the law will play a increasing role with respect to digital intellectual property.
For instance, it is generally held that documents and electronic files in a computer's temporary RAM memory are not copies since they are not tangible: when the power is shut off, they cease to exist, unlike the same files if they were first magnetically "written" to the hard drive. In this case, webpages temporarily displayed in a user's browser are not illegal copies, though there may be hundred of users viewing the page and only one hard copy of the webpage on a server. Yet this means that if I put a link in the HTML code of my webpage that displays an image called directly from someone else's web server, I can display their picture on my webpage without actually making a tangible copy of it. At first it seems that this does not violate copyright. (It would be a form of resource piracy since the person I have "borrowed" the graphic from must now pay for the bandwidth to display his graphic on both my site and his own.) Yet, when we examine the case in light of the performing and displaying clauses of the copyright law, we see that this is indeed an infringement.
Or is it? The author has put the image up for public display. I would only be helping him gain a wider audience! But it must be remembered that the copyright holder has an exclusive right to publicly perform the work, in the same way that he has the exclusive right to make copies. He may decide to give access to the work to everyone through his website, or make a free copy for anyone who wants one. But the decision of how and when to do this must remain with the copyright holder.
Libraries, as non-profit, educational institutions, have been granted certain privileges under the present copyright law. Briefly, they are as follows:
These rules change relatively frequently, and so a library should review them whenever new copyright legislation is passed.
There is currently much discussion of the everything going digital, especially in library settings. At first, I thought that this would sidestep copyright laws and become an information free-for-all. After examining the issue, I find that this is not the case.
First of all, new technologies allow for streaming multimedia. As the technology improves, it would be possible to for someone to own a single CD and stream its contents to other users without ever making a tangible copy. This would result in a Napster-like service without the copying side of things. However, as I have shown above, this would violate the performance aspect of the copyright law. Of course, it would be possible to implement such a performance-based service with permission from the copyright holder, but the same is true of running a copy-based service.
Secondly, it seems that the publicly-accessible, digital library will be stalled for some time due the rule that digital collections must not be accessible from outside the library premises. Of course, a digital library could be started with all works no longer covered by copyright, and then augmented by all those works for which librarians could get permission to publicly display. This will be a slow process leading to an incomplete collection. It would likely be hard to get permission from many authors, since once a single copy of the work is online, anyone can access it for free. A subscription-based digital library may be an option.
Of course, there are the many exceptions and leniencies allowed for library copying; perhaps the laws will change to allow libraries to put collections online. Indeed, there is already the precedent of the library copy machine--users are responsible for copyright infringement, not the library! Yet the copyright law is usually very realistic and pragmatic. It may be the same principle, but with a copy machine people must come to the library and (usually) pay 5 or 10 cents a copy. Putting an entire book on the internet where it can be downloaded in seconds for free is a very different story.
Thus, I don't think things will change that much in the near future. In many ways, that is perhaps a good thing. Intellectual property is the fuel for this information age and so needs to be protected. While many authors, performers, and programmers do choose to release their work to the public or even into the public domain, their right to choose must be protected. Online, if you like something, you don't need to copy it--link to it! If you only need the facts or information within a work, quote it and cite it (possibly with a link) in the same way you have in years past. Things may become more open and unrestricted, but it won't be tomorrow.
On one hand, the growth of the World Wide Web means more information is available and that copying can be done at the click of a mouse button. On the other hand, it means that the information is available with a simple link or bookmark, which should reduce the need for copying at all. Despite these dynamic times, the copyright law is fluid enough to reflect the changes.
Overall, I believe copyright is a good thing. While protecting the owner and her access to her work, it also allows some freedom for fair use and the transfer ideas. Remember that you can always ask for permission to use a person's work, either to copy it or display it. This permission is granted more often than most people think. Ask or buy; don't steal: this is the essence of the current copyright law.
1. Library of Congress. Copyright Office. "Copyright Basics." <http://www.loc.gov/copyright/circs/circ1.html> Accessed: 27 Nov 2000.
2. Library of Congress. Copyright Office. "Copyright Office Records Available under the Freedom of Information Act (FOIA)" <http://www.loc.gov/copyright/foia/> Accessed: 29 Nov 2000.
3. Library of Congress. Copyright Office. "Digital Millennium Copyright Act of 1998: US Copyright Office Summary." <http://www.loc.gov/copyright/legislation/dmca.pdf> Accessed: 30 Nov 2000.
4. "Brief for the United States as amicus curiae vs. Napster." <http://www.loc.gov/copyright/docs/napsteramicus.html> Accessed: 29 Nov 2000.
5. "RIAA/Digital Music Laws" <http://www.riaa.com/Copyright-Laws-4.cfm> Accessed: 03 Dec 2000.
6. Library of Congress. Copyright Office. "Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, Circular 92." <http://www.loc.gov/copyright/title17/92chap1.html#107> Accessed: 02 Dec 2000.
7. Library of Congress. Copyright Office. "Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, Circular 92." <http://www.loc.gov/copyright/title17/92chap1.html#108> Accessed: 02 Dec 2000.
8. Library of Congress. Copyright Office. "Notice to Libraries and Archives of Normal Commercial Exploitation or Availability at Reasonable Price." <http://lcweb.loc.gov/copyright/docs/nla.html>
|~ztomasze Index: LIS: Copyright Paper
|Last Edited: 10 Dec 2000|
©2000 by Z. Tomaszewski.