Dept. of Legal Affairs: Intellectual Property, Part 1: Copyright

In this two-part article, we will examine the two types of intellectual property that relate to language, copyright and trademark. There are two other types of intellectual property, patent and trade secrets, that apply to physical inventions and commercial business information.

The point of intellectual property laws is to encourage the advancement of the art, science, and commerce by giving the creators of original works, ideas, and products a limited period within which they can exercise exclusive control over their works and derive profit from them.

The first of these type of intellectual property is copyright, the right of an owner of a creative work to keep others from using it without permission. The term dates to 1735, when the British Parliament passed the first laws granting this right to authors. In the United States, the concept of copyright flows from the Constitution, which in Article I, Section 8 gives Congress the power “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.”

The first important concept to understand regarding copyright is the difference between an idea and the expression of an idea. Copyright only covers the latter. J.K. Rowling, for example, owns the copyright to the Harry Potter books. One cannot copy the text (the expression of her ideas) without her permission. But one is free to write one’s own book about a boy who attends a school for wizards and battles an evil sorcerer who killed the boy’s parents. The idea is not protected; the expression is.

What can be copyrighted?

There are limits on what copyright extends to:

  • The work must be original. It must be created, not copied from somewhere else.
  • The work must be in tangible form, e.g., on paper, canvas, film, clay, etc. If the idea remains in the author’s head or is simply performed without a script and without taping or filming the performance, then it cannot be copyrighted.
  • The work must be creative. Creating an electronic version of an public domain text, for example, is not sufficiently creative; it is simply a mechanical function. One cannot then claim copyright on the electronic version. Translating a text into another language, however, is a creative act. One can claim copyright on the translation.
  • The work cannot be the creation of the US federal government. By law, the federal government is prohibited from holding copyright. (It can hold patents.) Anything produced by the federal government is in the public domain.
  • Fictional characters can be copyrighted independently of the works they appear. The more specific or developed the character is, the greater the chance of protection. The character of James Bond, for example, is copyrighted. One can write a novel or film a movie about a dashing British secret agent without infringing, but if that spy drives an Aston Martin, drinks shaken, not stirred, vodka martinis, and favors a Walther PPK as a sidearm, it is probably infringement.
  • Product design and computer software can be protected by both copyright and patent. Patent protection does not last as long as copyright, but the protection is broader. Patents cover the idea, not just the literal expression.
  • Indecent or immoral works cannot be protected. In practice, however, explicit or pornographic works are considered protected unless a court in an infringement lawsuit rules that they are in fact indecent or immoral.

When is a work copyrighted?

A work is copyrighted the moment it is set down in tangible form. One does not have to register the work or even to mark it with the © symbol, although these acts will make it easier to recover monetary damages if a lawsuit is filed.

Under older copyright laws, the work had to be explicitly marked with the © symbol or words stating that the work is under copyright. This is no longer the case.

Who owns the copyright?

In general, the author of the work is granted copyright. For purposes of copyright law, the term “author” refers to the creator. Painters, sculptors, software engineers, and composers are all authors. The exception to this is if the work is created as a work for hire. The author of a work for hire is the person or corporation that commissions the work. A work for hire is one that is:

  • Created by an employee in the course of their job.
  • Commissioned. It is considered a work for hire and the copyright is owned by the commissioning party if a written work for hire agreement is signed and it falls into one of the following nine categories:
    • It is a contribution to a larger, collective work.
    • It is part of a motion picture, e.g., a screenplay.
    • It is a translation.
    • It is a supplement to another work.
    • It is a compilation of other works.
    • It is an instructional text.
    • It is a test.
    • It is an atlas.
    • It is a sound recording.

Can a copyright be sold or transferred?

Yes. Intellectual property like any other form of property can be transferred or sold. But there are some differences between copyright and physical property. Copyright actually consists of several subrights. These are the right to:

  • Reproduce the work.
  • Display or perform the work in public.
  • Distribute the work.
  • Prepare derivative works (e.g., film rights to a novel).

When all the rights to a work are transferred unconditionally, the rights are assigned. Typically, when an author writes a book the rights are assigned to the publisher in return for royalty payments. Transfer of individual subrights are known as a license. Licenses can be exclusive or non-exclusive.

How long does a copyright last?

Works published after 1 January 1978 are copyrighted for the life of the author plus 70 years. Works for hire and works created anonymously are protected for a period between 95 years from the date of publication or 120 years from the date of creation, whichever comes first.

For works published before 1978 the following applies:

  • Works published before 1923 are in the public domain.
  • Works published between 1923 and 1963 that have not had their copyright renewed are in the public domain.
  • Works created before 1978 but not published until after 2002 are in the public domain.
  • Works published between 1923 and 1963 that did have their copyright renewed are protected for 95 years from the date of publication.
  • Works published between 1964 and 1977 are protected for 95 years from date of publication.
  • Works created before 1978 but published between 1978 and 2002 are protected through 2047.

Can one legally use a copyrighted work without permission?

Yes, under limited circumstances. This is called fair use. Fair use covers such things as quoting a work in an academic journal, making a taped copy of a CD one has purchased to play on one’s car stereo, brief (e.g., less than 30 seconds) samples of musical performance. Fair use is a defense used when a lawsuit is brought for infringement. One cannot determine precisely whether or not a particular use is fair until it has been adjudicated, but there are some guidelines and rules of thumb based on judicial precedent. Whether or not a particular use is fair depends on four factors:

  • The purpose and character of the use, e.g., commercial or non-commercial. Not-for-profit educational uses are more likely to be considered fair use than commercial uses. If the purpose of the use is to transform or add creative value, as in a literary criticism or a parody, it is more likely to be a fair use.
  • The nature of the copyrighted work. Copying an informational, as opposed to an entertaining, work is more likely to be considered fair use. Use of a clip from a news broadcast is more likely to be considered fair use than a clip from a movie.
  • The amount used relative to the work as a whole. There is no hard and fast rule how much can by used without permission, but quoting up to 250 words from a book-length manuscript or sampling less than 30 seconds of a song is generally considered fair use. The amount acceptable as fair use can also be influenced by the purpose of the use. The amount allowed to be quoted in an academic book or journal is generally held to be larger than that quoted in a trade book (usually 500 words from a book-length manuscript). In some cases, an entire work can be copied, as in recording a television program for later viewing or “ripping” a music CD that one has purchased so that it can be played on an MP3 player.
  • The effect on the market value of the copyrighted work. The more likely a use is to diminish the commercial value of the original work, the less likely it is to be fair use.

What happens to those who infringe on copyrighted works?

The recourse a copyright holder has is to file a lawsuit to prevent further violation and collect monetary damages. There are several defenses against copyright infringement. These include:

  • Statute of limitations. If three years has passed between discovery of the infringement (or when it should reasonably have been discovered) and the lawsuit, the suit can be dismissed.
  • The infringement is fair use.
  • The infringement was innocent—the infringer had no reason to know that they were violating copyright, e.g., there was no copyright notice placed on the work. In such cases, the infringer is typically ordered to cease infringing, but pays no monetary damages.
  • There is no infringement. The copier is either has a license or created the work independently.

There are also provisions for criminal prosecution of copyright violations.

Does copyright apply internationally?

Usually. There are several treaties that govern international enforcement of copyright. The most important of these is the Berne Convention, which is signed by over 100 countries, including all of the major industrialized states. Under the Berne Convention the signatories pledge to enforce the copyrights of other signatories. The details of protection can vary from country to country. The length of copyright under the Berne Convention, however, must be at least the life of the author plus 50 years and copyright must be automatic (no registration required).

Within the United States, copyright law is federal and uniform. There are no state copyright laws.

Next month: Trademark.

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