Copyright

Background

The concept of copyright developed after the printing press came into use in Europe^[16] in the 15th and 16th centuries.^[17] It was associated with a common law and rooted in the civil law system.^[18] The printing press made it much cheaper to produce works, but as there was initially no copyright law, anyone could buy or rent a press and print any text.

Popular new works were immediately re-set and re-published by competitors, so printers needed a constant stream of new material. Fees paid to authors for new works were high and significantly supplemented the incomes of many academics.^[19]

Printing brought profound social changes. The rise in literacy across Europe led to a dramatic increase in the demand for reading matter.^[16] Prices of reprints were low, so publications could be bought by poorer people, creating a mass audience. In German-language markets before the advent of copyright, technical materials, like academic papers and handbooks, were inexpensive and widely available; it has been suggested this contributed to Germany's industrial and economic success.^[19]

Conception

The concept of copyright first developed in England. In reaction to the printing of "scandalous books and pamphlets", the English Parliament passed the Licensing of the Press Act 1662,^[16] which required all intended publications to be registered with the government-approved Stationers' Company, giving the Stationers the right to regulate what material could be printed.^[20]

The Statute of Anne, enacted in 1710 in England and Scotland, provided the first legislation to protect copyrights (but not authors' rights). The Copyright Act 1814 extended more rights for authors but did not protect British publications from being reprinted in the US. The Berne International Copyright Convention of 1886 finally provided protection for authors among the countries who signed the agreement, although the US did not join the Berne Convention until 1989.^[21]

In the US, the Constitution grants Congress the right to establish copyright and patent laws. Shortly after the Constitution was passed, Congress enacted the Copyright Act of 1790, modeling it after the Statute of Anne. While the national law protected authors' published works, authority was granted to the states to protect authors' unpublished works. The most recent major overhaul of copyright in the US, the Copyright Act of 1976, extended federal copyright to works as soon as they are created and "fixed", without requiring publication or registration. State law continues to apply to unpublished works that are not otherwise copyrighted by federal law. This act also changed the calculation of copyright term from a fixed term (then a maximum of fifty-six years) to "life of the author plus 50 years". These changes brought the US closer to conformity with the Berne Convention, and in 1989 the United States further revised its copyright law and joined the Berne Convention officially.^[21]

Copyright laws allow products of creative human activities, such as literary and artistic production, to be preferentially exploited and thus incentivized. Different cultural attitudes, social organizations, economic models and legal frameworks are seen to account for why copyright emerged in Europe and not, for example, in Asia. In the Middle Ages in Europe, there was generally a lack of any concept of literary property due to the general relations of production, the specific organization of literary production and the role of culture in society. The latter refers to the tendency of oral societies, such as that of Europe in the medieval period, to view knowledge as the product and expression of the collective, rather than to see it as individual property. However, with copyright laws, intellectual production comes to be seen as a product of an individual, with attendant rights. The most significant point is that patent and copyright laws support the expansion of the range of creative human activities that can be commodified. This parallels the ways in which capitalism led to the commodification of many aspects of social life that earlier had no monetary or economic value perse.^[22]

Copyright has developed into a concept that has a significant effect on nearly every modern industry, including not just literary work, but also forms of creative work such as sound recordings, films, photographs, software, and architecture.

National copyrights

Often seen as the first real copyright law, the 1709 British Statute of Anne gave authors and the publishers to whom they did chose to license their works, the right to publish the author's creations for a fixed period, after which the copyright expired.^[23] It was "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or the Purchasers of such Copies, during the Times therein mentioned."

The act also alluded to individual rights of the artist. It began:

"Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing ... Books, and other Writings, without the Consent of the Authors ... to their very great Detriment, and too often to the Ruin of them and their Families:".^[24]

A right to benefit financially from the work is articulated, and court rulings and legislation have recognized a right to control the work, such as ensuring that the integrity of it is preserved. An irrevocable right to be recognized as the work's creator appears in some countries' copyright laws.

The Copyright Clause of the United States, Constitution (1787) authorized copyright legislation: "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." That is, by guaranteeing them a period of time in which they alone could profit from their works, they would be enabled and encouraged to invest the time required to create them, and this would be good for society as a whole. A right to profit from the work has been the philosophical underpinning for much legislation extending the duration of copyright, to the life of the creator and beyond, to their heirs. Yet scholars like Lawrence Lessig have argued that copyright terms have been extended beyond the scope imagined by the Framers. Lessig refers to the Copyright Clause as the "Progress Clause" to emphasize the social dimension of intellectual property rights.^[25]

The original length of copyright in the United States was 14 years, and it had to be explicitly applied for. If the author wished, they could apply for a second 14‑year monopoly grant, but after that the work entered the public domain, so it could be used and built upon by others.

Continental law

In many jurisdictions of the European continent, comparable legal concepts to copyright did exist from the 16th century on but did change under Napoleonic rule into another legal concept: authors' rights or creator's right laws, from French: droits d'auteur and German Urheberrecht.^[26][27] In many modern-day publications the terms copyright and authors' rights are being mixed, or used as translations, but in a juridical sense the legal concepts do essentially differ.^[28][29] Authors' rights are, generally speaking, from the start absolute property rights of an author of original work that one does not have to apply for. The law is automatically connecting an original work as intellectual property to its creator.^[30] Although the concepts throughout the years have been mingled globally, due to international treaties and contracts, distinct differences between jurisdictions continue to exist.^[31]

Creator's law was enacted rather late in German speaking states and the economic historian Eckhard Höffner argues that the absence of possibilities to maintain copyright laws in all these states in the early 19th century, encouraged the publishing of low-priced paperbacks for the masses. This was profitable for authors and led to a proliferation of books, enhanced knowledge, and was ultimately an important factor in the ascendency of Germany as a power during that century.^[32] After the introduction of creator's rights, German publishers started to follow English customs, in issuing only expensive book editions for wealthy customers.^[33]

Empirical evidence derived from the exogenous differential introduction of author's right (Italian: diritto d'autore) in Napoleonic Italy shows that "basic copyrights increased both the number and the quality of operas, measured by their popularity and durability".^[34]

International copyright treaties

The 1886 Berne Convention first established recognition of authors' rights among sovereign nations, rather than merely bilaterally. Under the Berne Convention, protective rights for creative works do not have to be asserted or declared, as they are automatically in force at creation: an author need not "register" or "apply for" these protective rights in countries adhering to the Berne Convention.^[35] As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all intellectual property rights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the rights expires. The Berne Convention also resulted in foreign authors being treated equivalently to domestic authors, in any country signed onto the convention. The UK signed the Berne Convention in 1887 but did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act 1988. Specially, for educational and scientific research purposes, the Berne Convention provides the developing countries issue compulsory licenses for the translation or reproduction of copyrighted works within the limits prescribed by the convention. This was a special provision that had been added at the time of 1971 revision of the convention, because of the strong demands of the developing countries. The United States did not sign the Berne Convention until 1989.^[36]

The United States and most Latin American countries instead entered into the Buenos Aires Convention in 1910, which required a copyright notice on the work (such as all rights reserved), and permitted signatory nations to limit the duration of copyrights to shorter and renewable terms.^[37][38][39] The Universal Copyright Convention was drafted in 1952 as another less demanding alternative to the Berne Convention, and ratified by nations such as the Soviet Union and developing nations.

The regulations of the Berne Convention are incorporated into the World Trade Organization's TRIPS agreement (1995), thus giving the Berne Convention effectively near-global application.^[40]

In 1961, the United International Bureaux for the Protection of Intellectual Property signed the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. In 1996, this organization was succeeded by the founding of the World Intellectual Property Organization, which launched the 1996 WIPO Performances and Phonograms Treaty and the 2002 WIPO Copyright Treaty, which enacted greater restrictions on the use of technology to copy works in the nations that ratified it. The Trans-Pacific Partnership includes intellectual property provisions relating to copyright.

Copyright laws and authors' right laws are standardized somewhat through these international conventions such as the Berne Convention and Universal Copyright Convention. These multilateral treaties have been ratified by nearly all countries, and international organizations such as the European Union require their member states to comply with them. All member states of the World Trade Organization are obliged to establish minimum levels of copyright protection. Nevertheless, important differences between the national regimes continue to exist.^[31][28]

Ownership

The original holder of the copyright may be the employer of the author rather than the author themself if the work is a "work for hire".^[41][42] For example, in English law the Copyright, Designs and Patents Act 1988 provides that if a copyrighted work is made by an employee in the course of that employment, the copyright is automatically owned by the employer which would be a "Work for Hire". Typically, the first owner of a copyright is the person who created the work i.e. the author.^[43] But when more than one person creates the work, then a case of joint authorship can be made provided some criteria are met.

Eligible works

Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works". Specifics vary by jurisdiction, but these can include poems, theses, fictional characters, plays and other literary works, motion pictures, choreography, musical compositions, sound recordings, paintings, drawings, sculptures, photographs, computer software, radio and television broadcasts, and industrial designs. Graphic designs and industrial designs may have separate or overlapping laws applied to them in some jurisdictions.^[44][45]

Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed. For example, the copyright to a Mickey Mouse cartoon restricts others from making copies of the cartoon or creating derivative works based on Disney's particular anthropomorphic mouse, but does not prohibit the creation of other works about anthropomorphic mice in general, so long as they are different enough not to be judged copies of Disney's.^[46]

Originality

Typically, a work must meet minimal standards of originality in order to qualify for copyright, and the copyright expires after a set period of time (some jurisdictions may allow this to be extended). Different countries impose different tests, although generally the requirements are low; in the United Kingdom there has to be some "skill, labour, and judgment" that has gone into it.^[47] In Australia and the United Kingdom it has been held that a single word is insufficient to comprise a copyright work. However, single words or a short string of words can sometimes be registered as a trademark instead.

Copyright law recognizes the right of an author based on whether the work actually is an original creation, rather than based on whether it is unique; two authors may own copyright on two substantially identical works, if it is determined that the duplication was coincidental, and neither was copied from the other.

Registration

In all countries where the Berne Convention standards apply, copyright is automatic and need not be obtained through official registration with any government office. Once an idea has been reduced to tangible form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape, or a computer file), the copyright holder is entitled to enforce their exclusive rights.^[35] However, while registration is not needed to exercise copyright, in jurisdictions where the laws provide for registration, it serves as prima facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney's fees.^[48] (In the US, registering after an infringement only enables one to receive actual damages and lost profits.)

A widely circulated strategy to avoid the cost of copyright registration is referred to as the poor man's copyright. It proposes that the creator send the work to themself in a sealed envelope by registered mail, using the postmark to establish the date. This technique has not been recognized in any published opinions of the United States courts. The United States Copyright Office says the technique is not a substitute for actual registration.^[49] The United Kingdom Intellectual Property Office discusses the technique and notes that the technique (as well as commercial registries) does not constitute dispositive proof that the work is original or establish who created the work.^[50][51]

Fixing

The Berne Convention allows member countries to decide whether creative works must be "fixed" to enjoy copyright. Article 2, Section 2 of the Berne Convention states:

"It shall be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form."

Some countries do not require that a work be produced in a particular form to obtain copyright protection. For instance, Spain, France, and Australia do not require fixation for copyright protection. The United States and Canada, on the other hand, require that most works must be "fixed in a tangible medium of expression" to obtain copyright protection. US law requires that the fixation be stable and permanent enough to be "perceived, reproduced or communicated for a period of more than transitory duration". Similarly, Canadian courts consider fixation to require that the work be "expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance".^[52]

Note this provision of US law:

c) Effect of Berne Convention.—No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto.^[53]

Copyright notice

Before 1989, United States law required the use of a copyright notice, consisting of the copyright symbol (©, the letter C inside a circle; Unicode U+00A9 © COPYRIGHT SIGN), the abbreviation "Copr.", or the word "Copyright", followed by the year of the first publication of the work and the name of the copyright holder.^[54][55] Several years may be noted if the work has gone through substantial revisions. The proper copyright notice for sound recordings of musical or other audio works is a sound recording copyright symbol (℗, the letter P inside a circle, Unicode U+2117 ℗ SOUND RECORDING COPYRIGHT), which indicates a sound recording copyright, with the letter P indicating a "phonorecord". In addition, the phrase All rights reserved which indicates that the copyright holder reserves, or holds for their own use was once required to assert copyright, but that phrase is now legally obsolete. Almost everything on the Internet has some sort of copyright attached to it. Whether these things are watermarked, signed, or have any other sort of indication of the copyright is a different story however.^[56]

In 1989 the United States enacted the Berne Convention Implementation Act, amending the Copyright Act of 1976 to conform to most of the provisions of the Berne Convention. As a result, the use of copyright notices has become optional to claim copyright, because the Berne Convention makes copyright automatic.^[57