What is a copyright? What does it do?
Most people are familiar with the © symbol, which identifies something as having copyright protection. But few people probably know what rights are implicated when something has copyright protection. This article will discuss what copyrights protect and then discuss some of the legal challenges copyright holders may face.
Copyright protection finds its basis in Article I, Section 8, Clause 8 of the U.S. Constitution. In summary, the relevant section grants Congress the power to make laws that protect the intellectual property created in the country.
Congress used its authority to create a comprehensive legal framework. Specifically, Congress passed the Copyright Act of 1976 and the Digital Millennium Act of 1998. These are two crucial copyright statutes, which we will discuss in greater detail.
The logical question to ask is: How is intellectual property different from other forms of property?
Intellectual Property vis-à-vis Real or Personal Property
U.S. property law can be broken into three general categories: real, personal, and intellectual. Real property is real estate, i.e., land and buildings. Real estate ownership and transfers are recorded in the county clerk’s office or registry of deeds, depending on where you live.
The laws regarding personal property in the U.S. govern most of the other things we own. We do not have to register them with a particular governmental office except for our cars and firearms, for the most part. Once referred to as “chattels,” personal property is freely transferable, subject to a few legal limitations.
Intellectual property refers to an original work produced by someone’s thoughts and creativity.
There are three types of intellectual property laws recognized in the U.S. currently: copyright, trademark, and patent. Patent law refers to the unique scientific process of how something works or is built. In this sense, patent law is a narrow area of intellectual property law. Trademarks deal with unique symbols devised to identify a specific entity from all others.
On the other hand, copyright law protects an author’s original ideas, called “work,” from theft or misappropriation. According to Title 17 of the United States Code, also known as the Copyright Act of 1976 (Copyright Act), a wide range of protected works fall under the purview of copyright law. Copyrights protect expression but not abstract ideas.
“Work” is a technical term according to the Copyright Act. Work essentially means an original creation recorded in a permanent medium. The work is “fixed” when the work is in a tangible form of expression. Typically, the work is reduced to some concrete form that is stable as opposed to fleeting or temporary. As such, copyright law applies to many types of original work, including:
There are few limitations as to what type of work can receive copyright protection in the U.S.
Who owns the copyright?
You do not need to register a trademark with the U.S. Patent and Trademark Office to have a copyright. Copyright protections begin when the work becomes fixed. However, applying and receiving a copyright is beneficial to the owner. Registering a copyright allows the owner to assert their ownership rights under the Copyright Act.
Registering a copyright also facilitates a marketplace for intellectual property. People can locate copyright-protected works and their owners more easily. The owners of the copyright claim the complete protection of the law as well.
The creator of the protected work owns the copyright. However, copyright-protected works are freely transferable. Additionally, any business entity can own a copyright. This is a common scenario in work-for-hire situations. For example, suppose you are a programmer who works at Microsoft. Your job is to author a program that improves cloud performance. You, as an employee of Microsoft, do not own the copyright. Microsoft owns it instead. Microsoft has the option of reproducing the program you created and selling licenses to people who buy the product.
What Rights Does a Copyright Owner Have?
The rights a copyright holder can assert depend on registration. Registration allows the holder to file a lawsuit and seek statutory damages along with attorneys’ fees, according to the Copyright Act, if someone infringes on copyright-protected material. For example, using parts of a copyright-protected song in your own music and passing it off as your own. This once happened quite often. You can use a song created by another person so long as you have permission to do so, and you give the proper credit via attribution. You may need to pay a licensing fee as well.
A real-world example will help you understand the idea. In 1998, the British pop-rock band “The Verve” released a single called “Bittersweet Symphony.” The tune was immensely popular. The Verve’s singer wrote the song’s lyrics. However, the track included a very memorable instrumental string section that carried the tune’s melody. It was catchy and hooky. Unfortunately, for the Verve, the instrumental section wasn’t theirs. They lifted it without permission from The Rolling Stones. The “Stones’” manager sued the Verve successfully and won all the royalties Bittersweet Symphony generated.
Some twenty years later, The Rolling Stones relinquished their rights and repaid the Verve all the royalties from the song. The Stones certainly did not have to do that, but as copyright holders, they had the right to do so if they wanted.
This story has a happy ending for a one-hit-wonder act. Most stories don’t have a happy ending. Things didn’t end so well for millions of Napster users. People used Napster, which was a peer-to-peer network to upload songs and movies to the Internet for people to download for free. Downloading music without paying for it violated the copyright holders’ rights.
What’s the difference between uploading music and making a mixtape for your significant other? An answer is literally an act of Congress. The 1992 Audio Home Recording Act allowed people to copy music for their personal enjoyment. That law does not allow people to upload songs to give to others to evade paying a licensing fee.
Copyright holders have other rights. These rights are exclusive to the owner:
Copyright owners can authorize others to exercise these rights within statutory limitations
How long do copyrights last?
It depends on when the work was created. However, they do not last forever. According to the Copyright Act, works created on or after January 1, 1978, exist for the author’s life plus 70 years. However, anonymous works last 95 years from publication or 120 years from creation. The work is said to be in the “public domain” when the copyright expires.
Who Can Use a Copyright and When?
You use a copyright every time you read a book, watch a movie, or listen to recorded music
As we’ve seen, you can purchase the original work or license it from the owner or use it with the owner’s permission. You can wait until the work is in the public domain, so you don’t have to pay a licensing fee or commit copyright infringement to use the work.
The Copyright Act allows for the “fair use” of copyrighted material. The fair use doctrine is complicated because Courts tend to decide these issues on a case-by-case basis. In other words, what is fair depends on the circumstances in which the work was used. Typically, non-profit education and non-commercial uses are permitted. However, the amount used compared to the whole is also a consideration. Courts will want to know the effect on the market—does unauthorized use limit the sales market for original work? If so, then the fair use doctrine will not protect the user from copyright infringement.
The Copyright Act is perhaps the most critical piece of copyright legislation. Notwithstanding, the Digital Millennium Copyright Act of 1998 (DMCA) also plays a vital role in protecting original works. The DMCA amended the Copyright Act to add protections to works during the Internet’s nascent years. Congress passed the DMCA to comply with two international treaties that the U.S. ratified.
The DMCA was designed to prevent people from circumventing the long-standing rules of the Copyright Act. The DMCA, like the rest of Copyright law, is complex. It contains a safe harbor law protecting certain users from copyright infringement. However, the DMCA also created massive criminal sanctions for violations of the act.
Given the highly complex nature of copyright law, a person should seek the advice of an experienced intellectual property lawyer who can guide you through the copyright issues you may face.