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Intellectual property law
Primary rights

Copyright ' Patent ' Trademark ' Industrial design right ' Utility model  ' Geographical indication ' Trade secret ' Authors' rights ' Related rights ' Moral rights

Sui generis rights

Database right ' Mask work  ' Plant breeders' rights  ' Supplementary protection certificate  ' Indigenous intellectual property

Related topics

Criticism ' Orphan works ' Public domain  ' more

Copyright is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression or fixation. In most jurisdictions copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses which are covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission and copyright owners can license or permanently transfer or assign their exclusive rights to others.

Initially copyright law only applied to the copying of books. Over time other uses such as translations and derivative works were made subject to copyright and copyright now covers a wide range of works, including maps, dramatic works, paintings, photographs, sound recordings, motion pictures and computer programs. The British Statute of Anne 1709, full title "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned", was the first copyright statute.

Today copyright laws have been standardized to some extent through international and regional agreements such as the Berne Convention and the European copyright directives. Although there are consistencies among nations' copyright laws, each jurisdiction has separate and distinct laws and regulations about copyright. National copyright laws on licensing, transfer and assignment of copyright still vary greatly between countries and copyrighted works are licensed on territorial basis. Some jurisdictions also recognize moral rights of creators, such as the right to be credited for the work.


[edit] Justification

The British Statute of Anne was the first act to directly protect the rights of authors.[1] Under US copyright law, the justification appears in Article I, Section 8 Clause 8 of the Constitution, known as the Copyright Clause. It empowers the United States Congress "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."[2]

According to the World Intellectual Property Organisation the purpose of copyright is twofold:

"To encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public."[3]

[edit] Copyright as property right

Copyright as a property law was initially conceived of as a "chose in action", that is an intangible property, as opposed to tangible property. Tangible property is attached to the legal ownership of a physical item, hence the purchase of a book buys ownership of the book, but not the underlying copyright in the book's content.[4] The Statute of Anne specifically referred to copyright in terms of property (see literary property), albeit limited in time. Many contemporaries did not believe that the statute was concerned with property "in the strict sense of the word". The question of whether copyright is property right dates back to the Battle of the Booksellers. In 1773 Lord Gardenston commented in Hinton v. Donaldson that "the ordinary subjects of property are well known, and easily conceived... But property, when applied to ideas, or literary and intellectual compositions, is perfectly new and surprising..."[5] According to Patterson and Livingston there remains confusion about the nature of copyright ever since Donaldson v Beckett, a case heard in 1774 by the British House of Lords about whether copyright is the natural law right of the author or the statutory grant of a limited monopoly. One theory holds that copyright's origin occurs at the creation of a work, the other that its origin exists only through the copyright statute.[6]

Copyright law emerged in 18th Century Europe in relation to printed books and a new notion of authorship. In the European Renaissance and Neoclassical period the writer was regarded as an instrument, not as an independent creator. The writer was seen as using external sources to create a work of inspiration. In the 18th Century a changing concept of genius located the source of inspiration within the writer, whose special talents and giftedness was the basis for creating works of inspiration and uniqueness. The concept of the author as original creator and owner of their work emerged partly from the new concept of property rights and John Locke's theory that individuals were "owners of themselves". According to Locke individuals invested their labour into natural goods, and so creating property. Authors were argued to be the owners of their work because they had invested their labour in creating it.[7]

It was in the 19th century that the term intellectual property began to be used as an umbrella term for patents, copyright and other laws.[8][9] The expansion of copyright and copyright term are mirrored in the rhetoric that has been employed in referring to copyright. Courts, when strengthening copyright, have characterised it as a type of property. Companies have strongly emphasised copyright as property, with leaders in the music and movie industries seeking to "protect private property from being pillaged" and making forceful assertions that copyright is absolute property right.[10] With reference to the expanding scope of copyright, one commentator noted that "We have gone from a regime where a tiny part of creative content was controlled to a regime where most of the most useful and valuable creative content is controlled for every significant use."[11] According to Graham Dutfield and Uma Suthersanen copyright is now a "class of intangible business assets", mostly owned by companies who function as "investor, employer, distributor and marketer". While copyright was conceived as personal property awarded to creators, creators now rarely own the rights in their works.[12]

[edit] History

Pope Alexander VI issued a bull in 1501 against the unlicensed printing of books and in 1559 the Index Expurgatorius, or List of Prohibited Books, was issued for the first time.[13]

[edit] Early European printers' monopoly

The origin of copyright law in most European countries lies in efforts by the church and governments to regulate and control printing,[14] which was widely established in the 15th and 16th centuries.[14] Before the invention of the printing press a writing, once created, could only be physically multiplied by the highly laborious and error-prone process of manual copying by scribes.[13] Printing allowed for multiple exact copies of a work, leading to a more rapid and widespread circulation of ideas and information (see print culture).[14]

John Milton's 1644 edition of Areopagitica, long title Areopagitica: A speech of Mr. John Milton for the liberty of unlicensed printing to the Parliament of England, in it he argued forcefully against the Licensing Order of 1643.

While governments and church encouraged printing in many ways, which allowed the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licences to trade and produce books. The licenses typically gave printers the exclusive right to print particular works for a fixed period of years, and enabled the printer to prevent others from printing or improting the same work during that period.[14] The notion that the expression of dissent should be tolerated, not censured or punished by law, developed alongside the rise of printing and the press. The Areopagitica, published in 1644 under the full title Areopagitica: A speech of Mr. John Milton for the liberty of unlicensed printing to the Parliament of England, was John Milton's response to the British parliament re-introducing government licensing of printers, hence publishers. In doing so Milton articulated the main strands of future discussions about freedom of expression.[15] As the "menace" of printing spread governments established centralised control mechanism[16] and in 1557 the British Crown thought to stem the flow of seditious and heretical books by chartering the Stationers' Company. The right to print was limited to the members of that guild, and thirty years later the Star Chamber was chartered to curtail the "greate enormities and abuses" of "dyvers contentyous and disorderlye persons professinge the arte or mystere of pryntinge or selling of books." The right to print was restricted to two universities and to the 21 existing printers in the city of London, which had 53 printing presses. The French crown also repressed printing, and printer Etienne Dolet was burned at the stake in 1546. As the British took control of type founding in 1637 printers fled to the Netherlands. Confrontation with authority made printers radical and rebellious, with 800 authors, printers and book dealers being incarcerated in the Bastille before it was stormed in 1789.[16]

[edit] Early British copyright law

The Statute of Anne came into force in 1710

In England the printers, known as stationers, formed a collective organisation, known as the Stationers' Company. In the 16th century the Stationers' Company was given the power to require all lawfully printed books to be entered into its register. Only members of the Stationers' Company could enter books into the register. This meant that the Stationers' Company achieved a dominant position over publishing in 17th century England (no equivalent arrangement formed in Scotland and Ireland). The monopoly came to an end in 1694, when the English Parliament did not renew the Stationers Company's power.[14] The newly established Parliament of Great Britain passed the first copyright statute, the Statute of Anne, full "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned".[14]

The coming into force of the Statute of Anne in April 1710 marked a historic moment in the development of copyright law. As the world's first copyright statute it granted publishers of a book legal protection of 14 years with the commencement of the statute. It also granted 21 years of protection for any book already in print.[17] Unlike the monopoly granted to the Stationers' Company previously, the Statute of Anne was concerned with the reading public, the continued production of useful literature, and the advancement and spread of education. To encourage "learned men to compose and write useful books" the statute guaranteed the finite right to print and reprint those works. It established a pragmatic bargain involving authors, the booksellers and the public.[18] The Statute of Anne ended the old system whereby only literature that met the censorship standards administers by the booksellers could appear in print. The statute furthermore created a public domain for literature, as previously all literature belonged to the booksellers forever.[19]

[edit] Common law copyright

When the statutory copyright term provided for by the Statute of Anne began to expire in 1731 London booksellers thought to defend their dominant position by seeking injunctions from the Court of Chancery for works by authors that fell outside the statute's protection. At the same time the London booksellers lobbied parliament to extend the copyright term provided by the Statute of Anne. Eventually, in a case known as Midwinter v. Hamilton (1743'1748), the London booksellers turned to common law and starting a 30 year period known as the battle of the booksellers. The London booksellers argued that the Statute of Anne only supplemented and supported a pre-existing common law copyright. The dispute was argued out in a number of notable cases, including Millar v Kincaid (1749'1751), Tonson v Collins (1761'1762),[20] and Donaldson v Beckett (1774). Donaldson v Beckett eventually established that copyright was a "creature of statute", and that the rights and responsibilities in copyright were determined by legislation.[21] The Lords clearly voted against perpetual copyright[22] and by confirming that the copyright term, that is the length of time of work is in copyright, did expire according to statute the Lords also confirmed that a large number of works and books first published in Britain were in the public domain, either because the copyright term granted by statute had expired, or because they were first published before the Statute of Anne was enacted in 1709. This opened the market for cheap reprints of works from Shakespeare, John Milton and Geoffrey Chaucer, works now considered classics. The expansion of the public domain in books broke the dominance of the London booksellers and allowed for competition, with the number of London booksellers and publishers rising three fold from 111 to 308 between 1772 and 1802.[23]

[edit] Early French copyright law

In pre-revolutionary France all books needed to be approved by official censors and authors and publishers had to obtain a royal privilege before a book could be published. Royal privileges were exclusive and usually granted for six years, with the possibility of renewal. Over time it was established that the owner of a royal privilege has the sole right to obtain a renewal indefinitely. In 1761 the Royal Council awarded a royal privilege to the heirs of an author rather than the author's publisher, sparking a national debate on the nature of literary property similar to that taking place in Britain during the battle of the booksellers.[24]

In 1777 a series of royal decrees reformed the royal privileges. The duration of privileges were set at a minimum duration of 10 years or the life of the author, which ever was longer. If the author obtained a privilege and did not transfer or sell it on, he could publish and sell copies of the book himself, and pass the privilege on to his heirs, who enjoyed an exclusive right into perpetuity. If the privilege was sold to a publisher, the exclusive right would only last the specified duration. The royal degrees prohibited the renewal of privileges and once the privilege had expired anyone could obtain a "permission simple" to print or sell copies of the work. Hence the public domain in books whose privilege had expired was expressly recognised.[24]

After the French Revolution a dispute over Comédie-Française being granted the exclusive right to the public performance of all dramatic works erupted and in 1791 the National Assembly abolished the privilege. Anyone was allowed to establish a public theatre and the National Assembly declared that the works of any author who had died more than five years ago were public property. In the same degree the National Assembly granted authors the exclusive right to authorise the public performance of their works during their lifetime, and extended that right to the authors' heirs and assignees for five years after the author's death. The National Assembly took the view that a published work was by its nature a public property, and that an author's rights are recognised as an exception to this principle, to compensate an author for his work.[24]

In 1793 a new law was passed giving authors, composers, and artists the exclusive right to sell and distribute their works, and the right was extended to their heirs and assigns for 10 years after the author's death. The National Assembly placed this law firmly on a natural right footing, calling the law the "Declaration of the Rights of Genius" and so evoking the famous Declaration of the Rights of Man and of the Citizen. However, author's rights were subject to the condition of making depositing copies of the work with the Bibliothèque Nationale and 19th Century commentators characterised the 1793 law as utilitarian and "a charitable grant from society".[24]

[edit] Early US copyright law

The Copyright Act of 1790 in the Columbian Centinel

The Statute of Anne did not apply to the American colonies. The colonies' economy was largely agrarian, hence copyright law was not a priority, resulting in only three private copyright acts being passed in America prior to 1783. Two of the acts were limited to seven years, the other was limited to a term of five years. In 1783 several authors' petitions persuaded the Continental Congress "that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tends to encourage genius and to promote useful discoveries." But under the Articles of Confederation, the Continental Congress had no authority to issue copyright, instead it passed a resolution encouraging the States to "secure to the authors or publishers of any new book not hitherto printed... the copy right of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned,... the copy right of such books for another term of time no less than fourteen years.[25] Three states had already enacted copyright statutes in 1783 prior to the Continental Congress resolution, and in the subsequent three years all of the remaining states except Delaware passed a copyright statute. Seven of the States followed the Statute of Anne and the Continental Congress' resolution by providing two fourteen year terms. The five remaining States granted copyright for single terms of fourteen, twenty and twenty one years, with no right of renewal.[26]

At the Constitutional Convention 1787 both James Madison of Virginia and Charles Pinckney of South Carolina submitted proposals that would allow Congress the power to grant copyright for a limited time. These proposals are the origin of the Copyright Clause in the United States Constitution, which allows the granting of copyright and patents for a limited time to serve a utilitarian function, namely "to promote the progress of science and useful arts". The first federal copyright act, the Copyright Act of 1790 granted copyright for a term of "fourteen years from the time of recording the title thereof", with a right of renewal for another fourteen years if the author survived to the end of the first term. The act covered not only books, but also maps and charts. With exception of the provision on maps and charts the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne.[26]

At the time works only received protection under federal statutory copyright if the statutory formalities, such as a proper copyright notice, were satisfied. If this was not the case the work immediately entered into the public domain. In 1834 the Supreme Court ruled in Wheaton v. Peters, a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.[26]

[edit] Latin America

Cover page of the British Copyright Act 1911, also known as the Imperial Copyright Act of 1911. "Part I Imperial Copyright. Rights. 1.(1) Subject to the provisions of this Act, copyright shall subsist throughout the parts of His Majesty's dominions to which this Act extends for the term hereinafter mentioned in every original literary dramatic music and artists work, if..."

Latin American countries established national copyright laws following independence from the Spanish and Portuguese colonial powers. Latin American countries were among the first countries outside Europe to establish copyright law, with Brazil being the fourth country in the world to establish national copyright laws in 1804, after the UK, France and the United States. The foundation of Brazilian copyright law was the French Civil Code. Copyright law was initially established in Mexico following a Spanish court order in 1820 and in 1832 Mexico passed its first copyright statute. Copyright statutes had been established in eight Latin American countries by the 1850s.[27]

[edit] Africa, Asia and the Pacific

Copyright law was introduced in African, Asian and Pacific countries in the late 19th Century by European colonial powers, especially Britain and France. After the 1884 Congress of Berlin European colonial powers imposed new laws and institutions in their colonies, including copyright laws. The British Empire introduced copyright law in its African and Asian colonies though the Copyright Act 1911, also known as the Imperial Copyright Act of 1911. Similarly France applied its copyright law throughout its colonies and the French National Institute for Intellectual Property (INPI) acted as the colonial intellectual property authority.[27] The introduction of copyright laws in colonies occurred in the context of colonial powers' desire to "civilize" their colonies and to protect the commercial interest of the colonial powers. While approaches varied, copyright laws were generally not adapted to fit local conditions.[28]

[edit] International copyright law

[edit] Berne Convention for the Protection of Literary and Artistic Works

The Berne Convention was first established in 1886, and was subsequently re-negotiated in 1896 (Paris), 1908 (Berlin), 1928 (Rome), 1948 (Brussels), 1967 (Stockholm) and 1971 (Paris). The convention relates to literary and artistic works, which includes films, and the convention requires its member states to provide protection for every production in the literary, scientific and artistic domain. The Berne Convention has a number of core features, including the principle of national treatment, which holds that each member state to the Convention would give citizens of other member states the same rights of copyright that it gave to its own citizens (Article 3-5).[29]

Another core feature is the establishment of minimum standards of national copyright legislation in that each member state agrees to certain basic rules which their national laws must contain. Though member states can if they wish increase the amount of protection given to copyright owners. One important minimum rule was that the term of copyright was to be a minimum of the author's lifetime plus 50 years. Another important minimum rule established by the Berne Convention is that copyright arises with the creation of a work and does not depend upon any formality such as a system of public registration (Article 5(2)). At the time some countries did require registration of copyright, and when Britain implemented the Berne Convention in the Copyright Act 1911 it had to abolish its system of registration at Stationers' Hall.[29]

The Berne Convention focuses on authors as the key figure in copyright law and the stated purpose of the convention is "the protection of the rights of authors in their literary and artistic works" (Article 1), rather than the protection of publishers and other actors in the process of disseminating works to the public. In the 1928 revision the concept of moral rights was introduced (Article 10bis), giving authors the right to be identified as a such and to object to derogatory treatment of their works. These rights, unlike economic rights such as preventing reproduction, could not be transferred to others.[29]

The Berne Convention also enshrined limitations and exceptions to copyright, enabling the reproduction of literary and artistic works without the copyright owners prior permission. The detail of these exceptions was left to national copyright legislation, but the guiding principle is stated in Article 9 of the convention. The so called three-step test holds that an exception is only permitted "in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author". Free use of copyrighted work is expressly permitted in the case of quotations from lawfully published works, illustration for teaching purposes, and news reporting (Article 10).[29]

[edit] European copyright law

In the 1980s the European Community started to regard copyright as an element in the creation of a single market. Since 1991 the EU has passed a number of directives on copyright, designed to harmonise copyright laws in member states in certain key areas, such as computer programmes, databases and the internet. The directives aimed to reduce obstacles to the free movement of goods and services within the European Union, such as for example in rental rights, satellite broadcasting, copyright term and resale rights.[30] Key directives include the 1993 Copyright Duration Directive, the 2001 InfoSoc Directive, also known as Copyright Directive, and the 2004 Directive on the enforcement of intellectual property rights.

[edit] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

Important developments on copyright at international level in the 1990s include the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights, known as TRIPS Agreement. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) and contains a number of provisions on copyright. Compliance with the TRIPS Agreement is required of states wishing to be members of the World Trade Organisation (WTO). States need to be signatory of the Berne Convention and comply with all its provisions, except for the provision on moral rights (Article 9(1)). States need to bring computer programs and databases within the scope of works covered by copyright law (Article 10). States need to provide for rental rights in at least computer programs and films (Article 11). Where copyright term, that is duration of copyright, is calculated other than by reference to the life of a natural person, States need to give a minimum term of 50 years calculated from either the date of authorised publication or the creation of the work.[30]

Copyright law by country

France – Germany – Ireland – Netherlands – Poland – Serbia – Spain – Switzerland – Turkey – United Kingdom

North America

Canada – United States

Indian subcontinent, South East Asia and Australia

Australia – Hong Kong – India – Japan – New Zealand – Pakistan – Phillippines – Thailand

Central Asia and Russia

Russia – Tajikistan

Middle East

Egypt – Iran – Jordan


South Africa

[edit] Anti-Counterfeiting Trade Agreement

The Anti-Counterfeiting Trade Agreement (ACTA) is a proposed plurilateral trade agreement which is claimed by its proponents to be in response "to the increase in global trade of counterfeit goods and pirated copyright protected works."[31] The scope of ACTA is broad, including counterfeit physical goods, as well as "internet distribution and information technology".[32]

In October 2007 the United States, the European Community, Switzerland and Japan announced that they would negotiate ACTA. Furthermore the following countries have joined the negotiations: Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates and Canada.[32][33][34] The ACTA negotiations have been largely conducted in secrecy, with very little information being officially disclosed. However, on 22 May 2008 a discussion paper about the proposed agreement was uploaded to Wikileaks, and newspaper reports about the secret negotiations quickly followed.[34][35][36][37]

[edit] Copyright by country

Copyright laws have been standardized to some extent through international conventions such as the Berne Convention. Although there are consistencies among nations' intellectual property laws, each jurisdiction has separate and distinct laws and regulations about copyright.[1] The World Intellectual Property Organization summarizes each of its member states' intellectual property laws on its website.[38]

A copyright certificate for proof of the Fermat theorem, issued by State Department of Intellectual Property of Ukraine

[edit] Obtaining copyright

Copyright law is different from country to country, and a copyright notice is required in about 20 countries for a work to be protected under copyright.[39] Before 1989 all published works in the US had to contain a copyright notice, the – symbol followed by the publication date and copyright owner's name, to be protected by copyright. This is no longer the case and use of a copyright notice is now optional in the US, though they are still used.[40]

In all countries that are members of the Berne Convention 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 his or her exclusive rights. However, while registration isn't needed to exercise copyright, in jurisdictions where the laws provide for registration, it serves as prima facie evidence of a valid copyright. The original copyright owner of the copyright may be the employer of the author rather than the author himself, if the work is a "work for hire".

[edit] Copyright term

Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work (e.g. musical composition or novel), whether the work has been published or not, and whether the work was created by an individual or a corporation. In most of the world, the default length of copyright is the life of the author plus either 50 or 70 years. In the United States, the term for most existing works is a fixed number of years after the date of creation or publication. In some countries (for example, the United States[41] and the United Kingdom[42]), copyrights expire at the end of the calendar year in question.

The length and requirements for copyright duration are subject to change by legislation, and since the early 20th century there have been a number of adjustments made in various countries, which can make determining the duration of a given copyright somewhat difficult. For example, the United States used to require copyrights to be renewed after 28 years to stay in force, and formerly required a copyright notice upon first publication to gain coverage. In Italy and France, there were post-wartime extensions that could increase the term by approximately 6 years in Italy and up to about 14 in France. Many countries have extended the length of their copyright terms (sometimes retroactively). International treaties establish minimum terms for copyrights, but individual countries may enforce longer terms than those.[43]

[edit] Exclusive rights granted by copyright

Copyright is literally, the right to copy, though in legal terms "the right to control copying" is more accurate. Copyright are exclusive statutory rights to exercise control over copying and other exploitation of the works for a specific period of time. The copyright owner is given two sets of rights: an exclusive, positive right to copy and exploit the copyrighted work, or license others to do so, and a negative right to prevent anyone else from doing so without consent, with the possibility of legal remedies if they do.[44]

Copyright initially only granted the exclusive right to copy a book, allowing anybody to use the book to, for example, make a translation, adaptation or public performance.[11] At the time print on paper was the only format in which most text based copyrighted works were distributed. Therefore, while the language of book contracts was typically very broad, the only exclusive rights that had any significant economic value were rights to distribute the work in print.[45] The exclusive rights granted by copyright law to copyright owners have been gradually expanded over time and now uses of the work such as dramatization, translations, and derivative works such as adaptations and transformations, fall within the scope of copyright.[11] With a few exceptions, the exclusive rights granted by copyright are strictly territorial in scope, as they are granted by copyright laws in different countries. Bilateral and multilateral treaties establish minimum exclusive rights in member states, meaning that there is some uniformity across Berne Convention member states.[46]

The print on paper format means that content is affixed onto paper and the content can't be easily or conveniently manipulated by the user. Duplication of printed works is time-consuming and generally produces a copy that is of lower quality. Developments in technology have created new formats, in addition to paper, and new means of distribution. Particularly digital formats distributed over computer networks have separated the content from its means of delivery. Users of content are now able to exercise many of the exclusive rights granted to copyright owners, such as reproduction, distribution and adaptation.[45]

[edit] Types of work subject to copyright

The types of work which are subject to copyright has been expanded over time. Initially only covering books, copyright law was revised in the 19th century to include maps, charts, engravings, prints, musical compositions, dramatic works, photographs, paintings, drawings and sculptures. In the 20th century copyright was expanded to cover motion pictures, computer programs, sound recordings, choreography and architectural works.[11]

[edit] Idea'expression divide

Copyright law is typically designed to protect the fixed expression or manifestation of an idea rather than the fundamental idea itself. Copyright does not protect ideas, only their expression and in the Anglo-American law tradition the idea-expression divide is a legal concept which explains the appropriate function of copyright laws.[47]

[edit] Related rights and neighboring rights

Related rights is used to describe database rights, public lending rights (rental rights), artist resale rights and performers' rights. Related rights may also refer to copyright in broadcasts and sound recordings.[48] Related rights award copyright protection to works which are not author works, but rather technical media works which allowed author works to be communicated to a new audience in a different form. The substance of protection is usually not as great as there is for author works. In continental European copyright law a system of neighboring rights has thus developed and the approach was reinforced by the creation of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations in 1961.[49]

[edit] First-sale doctrine and exhaustion of rights

Copyright law does not restrict the owner of a copy from reselling legitimately obtained copies of copyrighted works, provided that those copies were originally produced by or with the permission of the copyright holder. It is therefore legal, for example, to resell a copyrighted book or CD. In the United States this is known as the first-sale doctrine, and was established by the courts to clarify the legality of reselling books in second-hand bookstores. Some countries may have parallel importation restrictions that allow the copyright holder to control the resale market. This may mean for example that a copy of a book that does not infringe copyright in the country where it was printed does infringe copyright in a country into which it is imported for retailing. The first-sale doctrine is known as exhaustion of rights in other countries and is a principle that also applies, though somewhat differently, to patent and trademark rights. It is important to note that the first-sale doctrine permits the transfer of the particular legitimate copy involved. It does not permit making or distributing additional copies.

[edit] Limitations and exceptions

[edit] Fair use and fair dealing

Copyright does not prohibit all copying or replication. In the United States, the fair use doctrine, codified by the Copyright Act of 1976 as 17 U.S.C. – 107, permits some copying and distribution without permission of the copyright holder or payment to same. The statute does not clearly define fair use, but instead gives four non-exclusive factors to consider in a fair use analysis. Those factors are:

  1. the purpose and character of the use;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.[50]

In the United Kingdom and many other Commonwealth countries, a similar notion of fair dealing was established by the courts or through legislation. The concept is sometimes not well defined; however in Canada, private copying for personal use has been expressly permitted by statute since 1999. In Australia, the fair dealing exceptions under the Copyright Act 1968 (Cth) are a limited set of circumstances under which copyrighted material can be legally copied or adapted without the copyright holder's consent. Fair dealing uses are research and study; review and critique; parody and satire; news reportage and the giving of professional advice (i.e. legal advice). Under current Australian law it is still a breach of copyright to copy, reproduce or adapt copyright material for personal or private use without permission from the copyright owner. Other technical exemptions from infringement may also apply, such as the temporary reproduction of a work in machine readable form for a computer.

In the United States the AHRA (Audio Home Recording Act Codified in Section 10, 1992) prohibits action against consumers making noncommercial recordings of music, in return for royalties on both media and devices plus mandatory copy-control mechanisms on recorders.

Section 1008. Prohibition on certain infringement actions
No action ever may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.

Later acts amended US Copyright law so that for certain purposes making 10 copies or more is construed to be commercial, but there is no general rule permitting such copying. Indeed making one complete copy of a work, or in many cases using a portion of it, for commercial purposes will not be considered fair use. The Digital Millennium Copyright Act prohibits the manufacture, importation, or distribution of devices whose intended use, or only significant commercial use, is to bypass an access or copy control put in place by a copyright owner. An appellate court has held that fair use is not a defense to engaging in such distribution.

Educational use is regarded as "fair use" in most jurisdictions, but the restrictions vary wildly from nation to nation.[51]

Recent Israeli District Court decision dated Sep. 2, 2009 [52][53] accepted the defence of fair use for a site linking to P2P live feeds of soccer matches. The main reasoning was based on the public importance of certain sporting events, i.e. - the public's rights as counter weight to the copyright holders rights.

[edit] Licensing, transfer and assignment

Copyright may be bought and sold much like other properties.[54] In the individual licensing model the copyright owner authorizes the use of the work against remuneration and under the conditions specified by the license. The conditions of the license may be complex since the exclusive rights granted by copyright to the copyright owner can be split territorially or with respect to language, the sequence of uses may be fixed, the number of copies to be made and their subsequent use may also be specified. Furthermore sublicenses and representation agreements may also be made.[55]

A contractual transfer of all or some of the rights in a copyrighted work is a known as a copyright license. A copyright assignment is an immediate and irrevocable transfer of the copyright owner's entire interest in all or some of the rights in the copyrighted work. Copyright licensing and assignment cover only the specified geographical region. There are significant differences in national copyright laws with regards to copyright licensing and assignment.[56]

Copyright licenses, as a minimum, define the copyrighted works and rights subject to the license, the territories or geographic region in which the license applies, the term or length of the license, and the consideration (such as a one of payment or royalties) for the license. The exclusive rights granted by copyright law can all be licensed, but they vary depending on local law. Depending on how the work may be used different licenses need to be acquired. For example, the activity of distributing videocassettes of a motion picture will require the license for the right to reproduce the motion picture on a videocassette and the right to distribute the copies to the public. Because the ratio of a television screen is different from that of a wide-screen cinema, requiring the cutting of the wide-screen "ends", it may also be necessary to obtain a license for the right to modify the motion picture. If the motion picture is to be edited or modified the copyright owner may include control over or approval of the editing process, or of the final result. Existing contractual agreements between the copyright owner and the director, may also require approval from the director to any changes made to the copyrighted work.[57]

Different types of exclusive licenses exist, such as licenses that excludes the licensor from use of the licenced copyrighted work in the relevant region and for the stated time period. Or exclusive licenses may prevent the licensor from licensing other parties in the geographic region and during the license term. There are also various types of non-exclusive licenses, including the right of first refusal should the licensor elect to offer future licenses to third parties. If a licensing agreement does not specify that the license is exclusive it may nonetheless be deemed exclusive depending on the language of the contract. Depending on local laws the owner of an exclusive license may be deemed the "copyright owner" of that work and bring charges for copyright infringement.[58]

The term or length of the copyright license is not allowed to exceed the copyright term specified by local law. Licenses may establish various pay arrangements, such as royalties as a percentage of sales or as a stepped up or down percentage of sales, e.g. 5 percent of sales up to 50,000 units, 2.5 percent of sales in excess thereof. The trigger for royalty payments may be sales, or other factors, such as the number of "hits" or views on a website. Minimum royalty payments are arrangements whereby a minimum up-front payment is made and then recouped against the percentage of sales. The up-front payment may be non-refundable if sales royalties do not reach the amount of the payment.[58] Minimum royalty payment arrangements may be accompanied by marketing duties for the licensee, e.g. best effort and reasonable effort to market and promote the copyrighted work.[59]

[edit] Compulsory licensing

In some countries copyright law provides for compulsory licenses of copyrighted works for specific uses. In many cases the remuneration or royalties received for a copyrighted work under compulsory license are specified by local law, but may also be subject to negotiation. Compulsory licensing may be established through negotiates licenses that provide terms within the parameters of the compulsory license.[60] Article 11bis(2) and Article 13(1) of the Berne Convention for the Protection of Literary and Artistic Works provide the legal basis for compulsory licenses. They state that member states are free to determine the conditions under which certain exclusive rights may be exercised in their national laws. They also provide for the minimum requirements to be set when compulsory licenses are applied, namely that they must not prejudice the author to fair compensation.[61]

[edit] Future rights under pre-existing agreements

It is commonplace in copyright licensing to license not only new uses which may be developed, as well as works which are not yet created. However, local law may not always recognise that the wording in licensing agreements does cover new uses permitted by subsequently developed technology.[56] Whether a license covers future, as yet unknown, technological developments is subject to frequent disputes. Litigation over the use of a licensed copyrighted work in a medium unknown when the license was agreed is common.[57]

Newspaper advert: "United States and Foreign Copyright. Patents and Trade-Marks A Copyright will protect you from Pirates. And make you a fortune."

[edit] Copyright enforcement

Copyrights are generally enforced by the holder in a civil law court, but there are also criminal infringement statutes in some jurisdictions. While central registries are kept in some countries, which aid in proving claims of ownership, registering does not necessarily prove ownership, nor does the fact of copying (even without permission) necessarily prove that copyright was infringed. Criminal sanctions are generally aimed at serious counterfeiting activity, but are now becoming more commonplace as copyright collectives such as the RIAA are increasingly targeting the file sharing domestic Internet user. (See: File sharing and the law)[citation needed]

[edit] Copyright infringement

An unskippable anti-piracy film included on movie DVDs equates copyright infringement with theft.

Copyright infringement, or copyright violation, is the unauthorized use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.[citation needed]

For electronic and audio-visual media under copyright, unauthorized reproduction and distribution is also commonly referred to as piracy. An early reference to piracy in the context of copyright infringement was made by Daniel Defoe in 1703 when he said of his novel The True-Born Englishman "Had I wrote it for the gain of the press, I should have been concerned at its being printed again and again by PIRATES, as they call them, and PARAGRAPHMEN: but if they do justice, and print it true, according to the copy, they are welcome to sell it for a penny, if they please: the pence, indeed, is the end of their works.".[62] The practice of labeling the act of infringement as "piracy" predates statutory copyright law. Prior to the Statute of Anne 1709, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labeled pirates as early as 1603.[63]

[edit] Orphan works

An orphan work is a work under copyright protection whose copyright owner is difficult or impossible to contact. The creator may be unknown, or where the creator is known it is unknown who represents them.[64]

[edit] Public domain

Newton's own copy of his Principia, with hand-written corrections for the second edition

Works are in the public domain if their kind is not covered by intellectual property rights or if the intellectual property rights have expired,[65] have been forfeited, or have never been claimed.[66] Examples include the English language, the formulae of Newtonian physics, as well as the works of Shakespeare and the patents over powered flight.[65]

[edit] Copyright and competition law

Copyright is typically thought of as a limited, legally sanctioned monopoly.[56] Because of this, copyright licensing may sometimes interfere too much in free and competitive markets.[67] These concerns are governed by legal doctrines such as competition law in the European Union, anti-trust law in the United States, and "anti-monopoly law" in Russia and Japan.[67] Competition issues may arise when the licensing party unfairly leverages market power, engages in price discrimination through its licensing terms or otherwise uses a licensing agreement in a discriminatory or unfair manner.[56][67] Attempts to extend the copyright term granted by law ' for example, by collecting royalties for use of the work after its copyright term has expired and it has passed into the public domain ' raise such competition concerns.[56]

In April 1995 the US published "Antitrust Guidelines for the licensing of Intellectual Property" which apply to patents, copyright and trade secrets. In January 1996 the European Union published Commission Regulation No.240/96 which applies to patents, copyright and other intellectual property rights, especially regarding licenses. The guidelines apply mutatis mutandis to the extent possible.[68]

[edit] Copyright and traditional knowledge

Hansel and Gretel is a fairy tale of Germanic origin, recorded by the Brothers Grimm in 1812. The tale has been adapted to various media, most notably the opera Hänsel und Gretel (1893) by Engelbert Humperdinck and a stop-motion animated feature film based on the opera. Artwork by Arthur Rackham, 1909

Traditional knowledge includes pre-existing, underlying traditional culture, or folklore, and literary and artistic works created by current generations of society which are based on or derived from pre-existing traditional culture or folklore. Traditional culture and folklore tends to be trans-generational, old and collectively "owned" by groups or communities. Often traditional culture and folklore is of anonymous origin and expressions of this pre-existing traditional culture is generally not protected by current intellectual property laws and is treated as being in the public domain.[69] In contrast contemporary literary and artistic works based upon, derived from or inspired by traditional culture or folklore may incorporate new elements or expressions. Hence these works may be "new" works with a living and identifiable creator, or creators. Such contemporary works may include a new interpretation, arrangement, adaptation or collection of pre-existing cultural heritage that is in the public domain. Traditional culture or folklore may also be "repackaged" in digital formats, or restoration and colorization. Contemporary and tradition based expressions and works of traditional culture are generally protected under existing copyright law, a form of intellectual property law, as they are sufficiently original to be regarded as "new" upon publication. Once the intellectual property rights afforded to these new works of traditional knowledge expire, they fall into the public domain.[70]

The public domain, as defined in the context of intellectual property rights, is not a concept recognised by indigenous peoples. As much of traditional knowledge has never been protected under intellectual property rights, they can not be said to have entered any public domain. On this point the Tulalip Tribes of Washington state, United States, has commented that "...open sharing does not automatically confer a right to use the knowledge (of indigenous people)... traditional cultural expressions are not in the public domain because indigenous peoples have failed to take the steps necessary to protect the knowledge in the Western intellectual property system, but form a failure of governments and citizens to recognise and respect the customary laws regulating their use".[70]

[edit] Copyright and economic development

According to historian Eckhard Höffner the 1710 introduction of copyright law in England and later in France acted as a barrier to economic progress for over a century, while Germany prospered in the same time frame due to the lack of copyright laws. Höffner argues that copyright laws allowed British publishers to print books in limited quantities for high prices.[71][72]

[edit] See also

[edit] Treaties and International Agreements

[edit] Sui generis

[edit] References

  1. ^ a b Broussard, Sharee L. (September 2007). The copyleft movement: creative commons licensing. Communication Research Trends. http://findarticles.com/p/articles/mi_7081/is_3_26/ai_n28457434?tag=content;col1. 
  2. ^ Article I, Section 8, Clause 8, United States Constitution
  3. ^ "Copyright and Related Rights". World Intellectual Property Organisation. http://www.wipo.int/copyright/en/. Retrieved 7 February 2010. 
  4. ^ Coyle, Michael (23 April 2002). "The History of Copyright". Lawdit. http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/The%20History%20of%20Copyright.htm. Retrieved 6 March 2010. 
  5. ^ Brad, Sherman; Lionel Bently (1999). The making of modern intellectual property law: the British experience, 1760-1911. Cambridge University Press. pp. 19. ISBN 9780521563635. http://www.google.com/books?id=u2aMRA-eF1gC&dq=statute+of+anne+copyright&lr=&as_brr=3&source=gbs_navlinks_s. 
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  7. ^ Van Horn Melton, James (2001). The rise of the public in Enlightenment Europe. Cambridge University Press. pp. 140. ISBN 9780521469692. http://books.google.com/books?id=QZovusQ1SjYC&dq=%22perpetual+copyright%22&source=gbs_navlinks_s. 
  8. ^ Brad, Sherman; Lionel Bently (1999). The making of modern intellectual property law: the British experience, 1760-1911. Cambridge University Press. pp. 207. ISBN 9780521563635. http://www.google.com/books?id=u2aMRA-eF1gC&dq=statute+of+anne+copyright&lr=&as_brr=3&source=gbs_navlinks_s. 
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  19. ^ Jonathan, Rosenoer (1997). Cyberlaw: the law of the internet. Springer. pp. 34. ISBN 9780387948324. http://www.google.com/books?id=HlG2esMIm7kC&dq=statute+of+anne+copyright&lr=&as_brr=3&source=gbs_navlinks_s. 
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  23. ^ Van Horn Melton, James (2001). The rise of the public in Enlightenment Europe. Cambridge University Press. pp. 140'141. ISBN 9780521469692. http://books.google.com/books?id=QZovusQ1SjYC&dq=%22perpetual+copyright%22&source=gbs_navlinks_s. 
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  25. ^ Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. pp. 142. ISBN 9780275988838. http://www.google.com/books?id=tgK9BzcF5WgC&dq=statute+of+anne+copyright&lr=&as_brr=3&source=gbs_navlinks_s. 
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  42. ^ The Duration of Copyright and Rights in Performances Regulations 1995, part II, Amendments of the UK Copyright, Designs and Patents Act 1988
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  50. ^ 17 U.S.C. – 107
  51. ^ International comparison of Educational "fair use" legislation
  52. ^ FAPL v. Ploni, September 2, 2009
  53. ^ a more thorough analysis of the FAPL v. Ploni decision
  54. ^ WIPO Guide on the Licensing of Copyright and Related Rights. World Intellectual Property Organisation. 2004. pp. 15. ISBN 9789280512717. http://www.google.com/books?id=LvRRvXBIi8MC&dq=copyright+transfer+and+licensing&as_brr=3&source=gbs_navlinks_s. 
  55. ^ WIPO Guide on the Licensing of Copyright and Related Rights. World Intellectual Property Organisation. 2004. pp. 100. ISBN 9789280512717. http://www.google.com/books?id=LvRRvXBIi8MC&dq=copyright+transfer+and+licensing&as_brr=3&source=gbs_navlinks_s. 
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  69. ^ Graber, Christoph Beat; and Mira Burri Nenova (2008). Intellectual Property and Traditional Cultural Expressions in a digital environment. Edward Elgar Publishing. pp. 173'174. ISBN 1847209211, 9781847209214. http://www.google.com/books?id=gK6OI0hrANsC&dq=%22public+domain%22+intellectual+property&lr=&as_brr=3&source=gbs_navlinks_s. 
  70. ^ a b Graber, Christoph Beat; and Mira Burri Nenova (2008). Intellectual Property and Traditional Cultural Expressions in a digital environment. Edward Elgar Publishing. pp. 174. ISBN 1847209211, 9781847209214. http://www.google.com/books?id=gK6OI0hrANsC&dq=%22public+domain%22+intellectual+property&lr=&as_brr=3&source=gbs_navlinks_s. 
  71. ^ Der Spiegel August 18 2010 article: No Copyright Law
  72. ^ Geschichte und Wesen des Urheberrechts (History and nature of copyright) by Eckhard Höffner, July 2010 (in German) ISBN 3930893169

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