COPYRIGHT



Copyright protection provides the author of an original work in any tangible medium of expression with certain rights to use and to authorize the use of the work. Copyright law provides the copyright holder with several effective remedies when there is copyright infringement. The copyright holder may obtain an injunction to restrain the infringer from using the copyrighted material. In addition, the holder has the right to impound and destroy any reproductions of the copyrighted work that were made in violation of the copyright. The copyright holder may also seek to recover damages and attorneys' fees involved in the case.

COPYRIGHT LAW

Article I, Section 8, of the U.S. Constitution gives Congress the power to enact copyright laws "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." The creations of inventors are protected by patents. Manufactured goods and other tangibles may be protected through trademarks. When Congress passed the Copyright Act of 1790, it granted copyright protection to "the authors and proprietors" of maps, charts, and books. Subsequent acts and revisions have taken technological advances into account and expanded copyright protection to include musical and dramatic compositions, computer programs and software, sound recordings, and paintings and drawings, among other items.

The copyright laws of the United States are contained in Title 17 of the U.S. Code Annotated (USCA). The Copyright Act of 1976 was the first major revision since 1909. Among other things, the 1909 act established the office of Register of Copyrights as part of the Library of Congress. The Copyright Act of 1976, which became effective January 1, 1978, established federal statutory protection for seven classes of original works of authorship, with copyright protection beginning as soon as the work was fixed in a copy or phonorecord.

DURATION OF COPYRIGHT PROTECTION

Since Article I, Section 8, of the Constitution contains the phrase "for limited times," copyright protection cannot be extended indefinitely. The term of protection granted by the Copyright Act of 1790 was 14 years plus a renewable term of an additional 14 years. The 1909 Copyright Act doubled the term of protection to 28 years plus a renewable term of another 28 years, providing a maximum protection of 56 years. Then the Copyright Act of 1976 expanded the duration of copyright protection for works created after January 1, 1978. Legal copyright protection for such works ordinarily lasted for the entire life of the author, plus an additional 50 years after the author's death. Works published prior to January 1, 1978, were subject to different rules contained in Section 303 of the Copyright Act.

The most recent legislation to affect copyrights was passed on October 27, 1998. The Copyright Term Extension Act added another 20 years of copyright protection, so that works would now be protected for the life of the author plus another 70 years. Works with corporate authorship as well as anonymous and pseudonymous works would be protected for 95 years after the date of first publication or 120 years after creation, whichever came first. In 1998 Congress also passed the Digital Millennium Copyright Act, which addressed some of the copyright issues relating to digital technology. It established penalties for circumventing protection technologies, limited online-service provider liability, and allowed digital preservation, among other things.

INTERNATIONAL COPYRIGHT
PROTECTION

During the 20th century, international copyright protection has been afforded by countries that were signees to the Berne Convention for the Protection of Literary and Artistic Works (1886) and the UNESCO Universal Copyright Convention (1952). In the United States, the Copyright Act of 1976 removed many of the barriers to the United States signing the Berne Convention, and in 1988 the United States became a member of the Berne Union. The United States has been a member of the Universal Copyright Convention (UCC) since 1956, the year in which the UCC took effect. The World Intellectual Property Organization (WIPO), an agency of the United Nations headquartered in Geneva, Switzerland, promotes the international protection of intellectual property and administers various multilateral treaties covering copyright and other types of protection. The Digital Millennium Copyright Act, passed by the U.S. Congress in 1998, implemented the most recent WIPO treaties for the United States.

INTERPRETING COPYRIGHT LAW

Like other laws, copyright laws are subject to interpretation by the courts. Copyright protection does not give the copyright owner complete control over all possible uses of the copyrighted work. Rather, it provides five specific rights, which the holder may exercise or authorize others to exercise. These are the right to reproduce the copyrighted work, the right to prepare derivative works based on the copyrighted work, the right to distribute copies of the copyrighted work (or, in the case of dramatic, audiovisual, and similar works, the right to perform the copyrighted work publicly), and the right to display the copyrighted work publicly.

Not all uses of copyrighted material are subject to copyright protection. The doctrine of fair use allows individuals to reproduce a copyrighted work for a "fair use." The notion of fair use is subject to a variety of interpretations, however, and often involves legal proceedings to determine if a particular use is in fact "fair." Four factors are usually considered when determining fair use. These are the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market or value of the copyrighted work.

Not all original works are subject to copyright protection. For example, "useful articles" are not copyrightable under copyright law. In the case of a work that combines artistic and useful features, it may be necessary to obtain a court judgment to determine if the article may be copyrighted. There is also a category of works that are said to be in the public domain; these are not copyrightable. An example of a work in the public domain might be a book that was never copyrighted or whose copyright had expired, or a traditional song whose composer is unknown. Facts cannot be copyrighted, although compilations of factual material can be. Ideas cannot be copyrighted, nor can titles of books or songs. Works produced by the U.S. government are also in the public domain.

Copyright law provides that where a work was made for hire, the copyright belongs to the employer rather than to the creator. This is the single major exception to copyright ownership vesting in the author or creator of the work. There are two major sets of circumstances where a work is said to be made for hire. One is when the work is prepared by an employee within the scope of his or her employment. The other is when the work is specially ordered or commissioned, and there is an express written agreement between the parties that the work shall be considered a work made for hire.

In order to enforce one's copyright against infringers, it is necessary to register the work with the Register of Copyrights at the Library of Congress before a suit may be filed. A work need not be registered to have copyright protection, but it must carry a notice of copyright that includes the copyright symbol, the year, and the name of the copyright holder. Copyright notice is essential to obtain copyright protection unless one of the following conditions exists:

  1. The notice was omitted in violation of an express written agreement.
  2. The notice was omitted from only a few publicly distributed copies.
  3. The owner registered the work within five years after publication without notice and made every reasonable attempt to add the notice to all publicly distributed copies after discovering the omission.

SEE ALSO : Licensing Agreements

[ David P Bianco ]

FURTHER READING:

Chused, Richard H., ed. A Copyright Anthology: The Technology Frontier. Cincinnati: Anderson Publishing, 1998.

Copyright Clearance Center. "Copyright Clearance Center." Danvers, MA: Copyright Clearance Center, 1999. Available from www.copyright.com .

"Copyright Resources on the Web." Information Outlook, July 1998, 39.

Gasaway, Laura N. "Copyright Protection Extended." Information Outlook, January 1999, 36-37.

Library of Congress. U.S. Copyright Office. "U.S. Copyright Office." Washington: Library of Congress, 1999. Available from lcweb.loc.gov/copyright .

O'Mahoney, Benedict. "The Copyright Website." 1999. Avail able from www.benedict.com .

World Intellectual Property Organization. "World Intellectual Property Organization." Geneva: World Intellectual Property Organization, 1999. Available from www.wipo.org .



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