Copyright
Copyright includes not only the right to make copies of a work—called the right of reproduction—it also includes several other rights, including the right to distribute, adapt, publicly perform, and publicly display a work. By allowing authors to control reproduction and other uses of their creative works for a period of time, copyright allows authors to make money by charging for such uses during the copyright term. This in turn creates a financial incentive for authors to invest time and effort to produce new works for the benefit of everybody.
In the United States, the period of copyright control lasts for different periods of time, depending upon who the author may be. The copyright term for a work created by a natural person is the lifetime of the author plus seventy years. The copyright term for a work created by a corporation, through its employees, is 120 years from the date of creation or 95 years from the date of publication. After a copyright expires, the work falls into the public domain for anyone to use.
The proliferation of computer technology poses a problem for copyright owners. Computer technology typically functions by reproducing copies of something in memory devices: when a computer file, such as a digitized music file, is digitally transmitted or even loaded into memory to run, copies are being made. Computers therefore make reproduction and distribution of digitized works cheap and easy, and the technology to do so has become widely available at a low cost.
This is good news for information consumers, because the cost of access to creative works becomes minimal; nearly everyone can afford access. But this is bad news for information producers, because they make no money from virtually free, unauthorized digital copies, and so they have less incentive to produce the works in the first instance. Copyright law, which provides artists and authors the legal right to prohibit unauthorized digital reproduction, is more difficult to enforce when the technology to make such reproductions is widespread. Much of the public controversy over copyright and the Internet, such as the debate over the Napster peer-to-peer music trading service during 2000, revolves around this clash between the interests of information consumers and those of information producers.
Some digital copying has been justified on the basis of "fair use," which is a limited user right that allows unauthorized use of portions of a copyrighted work for certain select purposes. The fair use privilege is especially
important in allowing study, scholarship, commentary, and criticism of copyrighted works. For example, quoting a few lines of a book in a book review would be a classic example of fair use. Without the fair use privilege, copying the lines out of the book would constitute infringement, and could not be done without the permission of the copyright owner.
In the United States, the standard for fair use is extremely flexible, depending upon the circumstances of the use: in some instances, using an entire work without permission might be a fair use, while in other instances, fair use might permit the use of only a small portion. However, the fair use privilege is not unlimited, and many instances of unauthorized digital copying exceed the privilege. Other countries recognize a much more narrow user right of "fair dealing," which allows a few specific unauthorized uses of a copyrighted work, such as for news reporting. Fair dealing would permit even less latitude for unauthorized digital copying.
Establishing Copyright
Such controversies are likely to be widespread because the majority of creative works, including those found in digital format on the Internet or elsewhere, are likely to be copyrighted. Unlike patents for inventions, which must be applied for and approved, copyrights arise spontaneously when the work is fixed. As soon as pen is set to paper, or brush to canvas, or fingers to keyboard, the resulting work is automatically copyrighted. No application
or registration is necessary. The work may be registered with the Copyright Office if the author wishes, but this is optional.
There are benefits for choosing to register the work. In particular, the copyright cannot be enforced in a U.S. court unless it has been registered. There are also benefits to placing a copyright notice on the work, but an author need not do so. This presents a problem for consumers who wish to use a work, as it may be copyrighted even though there is no notice of copyright attached to the work. Because copyright arises automatically, it is likely that any given work is copyrighted unless the work is old enough for the copyright to have expired, or unless it falls into a category of uncopyrightable subject matter.
What Is Covered? What Is Not?
Copyright has traditionally covered literary works, such as books, plays, and poems; musical works; sound recordings; pictorial and graphic works, such as paintings, drawings, cartoons, and photographs; and audiovisual works, such as motion pictures and graphic animation. Court decisions and international treaties have recognized that these types of works are protected by copyright, whether they are in digital format or in hardcopy. Additionally, in the United States since 1978, copyright covers computer software, which is considered a kind of literary work. Most other countries around the world have also added software to the list of copyrightable works. Copyright also covers the original selection and arrangement of collections or compilations of information, including databases. Thus, a great deal of the content found in digitized formats falls within the subject matter of copyright.
Copyright does not cover facts, short phrases or words, ideas, processes, or "unfixed" works. For example, an improvisational theater performance or musical "jam session" will not be covered by copyright if it is not recorded because if it is unrecorded, the work is unfixed. Similarly, a measurement or a law of nature cannot be copyrighted because they are facts that did not originate from an author, but which simply exist as part of the world. Business names or book titles usually are not copyrightable because they are short phrases or words. Recipes and game rules usually are not copyrightable because they simply describe processes. Thus, the copyright on a work such as a computer program extends to the original expression of the program— the software code—but not to the underlying computer functions or processes.
The fundamental premise of copyright law is the distinction between a copy and the work. The work is the abstract, intangible, intellectual work that is embodied in a tangible copy. Works may be embodied in paper, canvas, stone, celluloid film, computer memory devices, or almost any other kind of material. Copyright grants authors the right to control the underlying work but does not necessarily grant the copyright holder rights in a particular copy. This contrast is perhaps best illustrated in copyright's "First Sale" doctrine. The purchaser of a particular copy does not by virtue of the purchase gain rights in the work. The copyright in the work still rests with the author or copyright owner, so the purchaser of the copy is still precluded from, for example, reproducing the work by creating additional copies embodying the work. But the purchaser does generally have the right to dispose of his copy as he wishes, by reselling it, giving it away, or even
destroying it. The copyright owner may, of course, also sell the copyright to the work, but that is a different matter from selling copies of the work. And here again, digital technology has changed the interpretation and implementation of copyright protection. When the purchaser or owner of a traditional hardcopy embodiment of a copyrighted work, such as a sound recording, gave away or sold the copy, no new copies were created; the purchased unit itself passed from one person to another. In contrast, transfer of ownership of a digital work usually means no physical object is handed over; instead, a digital copy is rendered to the recipient.
International Copyright and Computer Technology
The international nature of the Internet poses certain challenges for copyright law. As in the case of patents, there is no international copyright or universally recognized copyright; copyright laws differ from nation to nation. When digitized works are transmitted from one country to another, it may be very difficult to determine which country's copyright law should apply. This situation is not as problematic as it could be because many nations have signed an international treaty, the Berne Convention, which sets minimum standards for copyright protection. It also requires nations to accord the citizens of other signatory nations the same rights that it gives to its own citizens. Additionally, the standards of the Berne Convention have been adopted as part of the series of intellectual property treaties accompanying membership in the World Trade Organization. Consequently, the basics of copyright are similar among most nations, although variations are possible.
Owners of copyrighted works may also use technological measures to prevent unauthorized uses of their works in digital form. These may include software or hardware devices that prevent reproduction or use of the protected content unless a password or other access code is obtained from the owner of the content. Many countries have adopted laws making it illegal to disable, tamper with, or "hack" around such content management devices.
Bibliography
Davis, Randall. "The Digital Dilemma." Communications of the ACM, 44, no. 2 (2001) 77–83.
Miller, Arthur R., and Michael H. Davis. Intellectual Property in a Nutshell. St. Paul, MN: West Publishing, 2000.
