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Copyright is the exclusive right, given to the creator of a creative work, to reproduce the work, usually for a limited time.[1][2][3][4][5] The creative work may be in a literary, artistic or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself.[6][7][8] A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States. Some jurisdictions require "fixing" copyrighted works in a tangible form. It is often shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders.[9][10][11][12] These rights frequently include reproduction, control over derivative works, distribution, public performance, and moral rights such as attribution.[13]

Copyrights can be granted by public law and are in that case considered "territorial rights".

Typically, the public law duration of a copyright expires 50 to 100 years after the creator dies, depending on the jurisdiction. Some countries require certain copyright formalities to establishing copyright, others recognize copyright in any completed work, without formal registration.

History


The concept of copyright developed in England with the invention of the printing press. The consequent rise in literacy across Europe led to a dramatic increase in the demand for literary work. In reaction to the printing of "scandalous books and pamphlets", the English Parliament passed the Licensing of the Press Act 1662,[15] 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.[16]

Copyright laws allow products of creative human activities, such as literary and artistic production, to be preferentially exploited and thus incentivized.

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.

Often seen as the first real copyright law, the 1709 British Statute of Anne gave the publishers rights for a fixed period, after which the copyright expired.[18] The act also alluded to individual rights of the artist.

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.

The original length of copyright in the United States was 14 years, and it had to be explicitly applied for.

Copyright law was enacted rather late in German states, and the historian Eckhard Höffner argues that the absence of copyright laws in the early 19th century encouraged publishing, was profitable for authors, 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.[20]

The 1886 Berne Convention first established recognition of copyrights among sovereign nations, rather than merely bilaterally. Under the Berne Convention, copyrights 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" a copyright in countries adhering to the Berne Convention.[21] As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright 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.[22]

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.[23][24][25] 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.[26]

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 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 or World Trade Organization require their member states to comply with them.

Obtaining protection


The original holder of the copyright may be the employer of the author rather than the author himself if the work is a "work for hire".[27] 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.[28][28] But when more than one person creates the work, then a case of joint authorship can be made provided some criteria are met.

Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".

Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.[31] 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 to not be judged copies of Disney's.[31] Note additionally that Mickey Mouse is not copyrighted because characters cannot be copyrighted; rather, Steamboat Willie

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.[32] 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.

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 his or her exclusive rights.[21] 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 and enables the copyright holder to seek statutory damages and attorney's fees.[33] (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 himself 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.[34] 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.[35][36]

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.[37] U.S. 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".[37]

Before 1989, United States law required the use of a copyright notice, consisting of the copyright symbol (©, the letter C inside a circle), 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.[38][39] 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), which indicates a sound recording copyright, with the letter P indicating a "phonorecord". In addition, the phrase All rights reserved 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.[40]

In 1989 the United States enacted the Berne Convention Implementation Act, amending the 1976 Copyright Act 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.[41] However, the lack of notice of copyright using these marks may have consequences in terms of reduced damages in an infringement lawsuit – using notices of this form may reduce the likelihood of a defense of "innocent infringement" being successful.[42]

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 home Internet user. Thus far, however, most such cases against file sharers have been settled out of court. (See: Legal aspects of file sharing)

In most jurisdictions the copyright holder must bear the cost of enforcing copyright.

"...by 1978, the scope was expanded to apply to any 'expression' that has been 'fixed' in any medium, this protection granted automatically whether the maker wants it or not, no registration required."[43]

For a work to be considered to infringe upon copyright, its use must have occurred in a nation that has domestic copyright laws or adheres to a bilateral treaty or established international convention such as the Berne Convention or WIPO Copyright Treaty. Improper use of materials outside of legislation is deemed "unauthorized edition", not copyright infringement.[44]

Statistics regarding the effects of copyright infringement are difficult to determine.

Rights granted


According to World Intellectual Property Organisation, copyright protects two types of rights. Economic rights allow right owners to derive financial reward from the use of their works by others. Moral rights allow authors and creators to take certain actions to preserve and protect their link with their work. The author or creator may be the owner of the economic rights or those rights may be transferred to one or more copyright owners. Many countries do not allow the transfer of moral rights. Where Economic rights allow right owners to derive financial reward from the use of their works by others, the Moral rights allow authors and creators to take certain actions to preserve and protect their link with their work.[5]

With any kind of property, its owner may decide how it is to be used, and others can use it lawfully only if they have the owner’s permission, often through a license.

  • reproduction of the work in various forms, such as printed publications or sound recordings;
  • distribution of copies of the work;
  • public performance of the work;
  • broadcasting or other communication of the work to the public;
  • translation of the work into other languages; and
  • adaptation of the work, such as turning a novel into a screenplay.

Moral rights are concerned with the non-economic rights of a creator.

These and other similar rights granted in national laws are generally known as the moral rights of authors.

The Copyright Law in the United States, several exclusive rights are granted to the holder of a copyright, as are listed below:

  • protection of the work
  • to determine and decide how, and under what conditions, the work may be marketed, publicly displayed, reproduced, distributed etc.
  • to produce copies or reproductions of the work and to sell those copies (including, typically, electronic copies)
  • to import or export the work
  • to create derivative works (works that adapt the original work)
  • to perform or display the work publicly
  • to sell or cede these rights to others
  • to transmit or display by radio, video or internet.[51]

The basic right when a work is protected by copyright is that the holder may determine and decide how and under what conditions the protected work may be used by others.

UK copyright law gives creators both economic rights and moral rights. While ‘copying’ someone else’s work without permission may constitute an infringement of their economic rights, that is, the reproduction right or the right of communication to the public, whereas, ‘mutilating’ it might infringe the creator’s moral rights. In the UK, moral rights include the right to be identified as the author of the work, which is generally identified as the right of attribution, and the right not to have your work subjected to ‘derogatory treatment’, that is the right of integrity.[49]

Indian copyright law is at parity with the international standards as contained in TRIPS. The Indian Copyright Act, 1957, pursuant to the amendments in 1999, 2002 and 2012, fully reflects the Berne Convention for Protection of Literary and Artistic Works, 1886 and the Universal Copyrights Convention, to which India is a party. India is also a party to the Geneva Convention for the Protection of Rights of Producers of Phonograms and is an active member of the World Intellectual Property Organization (WIPO) and United Nations Educational, Scientific and Cultural Organization (UNESCO). The Indian system provides both the economic and moral rights under different provisions of its Indian Copyright Act of 1957.[53]

Copyright subsists for a variety of lengths in different jurisdictions.

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.

In the United States, all books and other works published before 1923 have expired copyrights and are in the public domain.[57] In addition, works published before 1964 that did not have their copyrights renewed 28 years after first publication year also are in the public domain.

But if the intended exploitation of the work includes publication (or distribution of derivative work, such as a film based on a book protected by copyright) outside the U.S., the terms of copyright around the world must be considered.

In 1998, the length of a copyright in the United States was increased by 20 years under the Copyright Term Extension Act.

Limitations and exceptions


In many jurisdictions, copyright law makes exceptions to these restrictions when the work is copied for the purpose of commentary or other related uses.

There are some exceptions to what copyright will protect.

  • Names of products
  • Names of businesses, organizations, or groups
  • Pseudonyms of individuals
  • Titles of works
  • Catchwords, catchphrases, mottoes, slogans, or short advertising expressions
  • Listings of ingredients in recipes, labels, and formulas, though the directions can be copyrighted

The idea–expression divide differentiates between ideas and expression, and states that copyright protects only the original expression of ideas, and not the ideas themselves.

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.

Some countries may have parallel importation restrictions that allow the copyright holder to control the aftermarket. 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 which 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.

In Kirtsaeng v. John Wiley & Sons, Inc.,[61] in 2013, the United States Supreme Court held in a 6–3 decision that the first-sale doctrine applies to goods manufactured abroad with the copyright owner's permission and then imported into the US without such permission. The case involved a plaintiff who imported Asian editions of textbooks that had been manufactured abroad with the publisher-plaintiff's permission. The defendant, without permission from the publisher, imported the textbooks and resold on eBay. The Supreme Court's holding severely limits the ability of copyright holders to prevent such importation.

In addition, copyright, in most cases, does not prohibit one from acts such as modifying, defacing, or destroying his or her own legitimately obtained copy of a copyrighted work, so long as duplication is not involved.

Copyright does not prohibit all copying or replication.

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 Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, the Supreme Court of Canada concluded that limited copying for educational purposes could also be justified under the fair dealing exemption. 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; news reportage and the giving of professional advice (i.e. legal advice). Under current Australian law, although 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, owners of a legitimate copy are permitted to "format shift" that work from one medium to another for personal, private use, or to "time shift" a broadcast work for later, once and only once, viewing or listening. 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.

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.

The copyright directive allows EU member states to implement a set of exceptions to copyright. Examples of those exceptions are:

  • photographic reproductions on paper or any similar medium of works (excluding sheet music) provided that the rightholders receives fair compensation,
  • reproduction made by libraries, educational establishments, museums or archives, which are non-commercial
  • archival reproductions of broadcasts,
  • uses for the benefit of people with a disability,
  • for demonstration or repair of equipment,
  • for non-commercial research or private study
  • when used in parody

It is legal in several countries including the United Kingdom and the United States to produce alternative versions (for example, in large print or braille) of a copyrighted work to provide improved access to a work for blind and visually impaired persons without permission from the copyright holder.[63][64]

Transfer, assignment and licensing


A copyright, or aspects of it (e.g. reproduction alone, all but moral rights), may be assigned or transferred from one party to another.[65] For example, a musician who records an album will often sign an agreement with a record company in which the musician agrees to transfer all copyright in the recordings in exchange for royalties and other considerations.

A transfer or licence may have to meet particular formal requirements in order to be effective,[65] for example under the Australian Copyright Act 1968 the copyright itself must be expressly transferred in writing. Under the U.S. Copyright Act, a transfer of ownership in copyright must be memorialized in a writing signed by the transferor. For that purpose, ownership in copyright includes exclusive licenses of rights. Thus exclusive licenses, to be effective, must be granted in a written instrument signed by the grantor. No special form of transfer or grant is required. A simple document that identifies the work involved and the rights being granted is sufficient. Non-exclusive grants (often called non-exclusive licenses) need not be in writing under U.S. law. They can be oral or even implied by the behavior of the parties. Transfers of copyright ownership, including exclusive licenses, may and should be recorded in the U.S. Copyright Office. (Information on recording transfers is available on the Office's web site.) While recording is not required to make the grant effective, it offers important benefits, much like those obtained by recording a deed in a real estate transaction.

Copyright may also be licensed.[65] Some jurisdictions may provide that certain classes of copyrighted works be made available under a prescribed statutory license (e.g. musical works in the United States used for radio broadcast or performance). This is also called a compulsory license, because under this scheme, anyone who wishes to copy a covered work does not need the permission of the copyright holder, but instead merely files the proper notice and pays a set fee established by statute (or by an agency decision under statutory guidance) for every copy made.[65] Failure to follow the proper procedures would place the copier at risk of an infringement suit. Because of the difficulty of following every individual work, copyright collectives or collecting societies and performing rights organizations (such as ASCAP, BMI, and SESAC) have been formed to collect royalties for hundreds (thousands and more) works at once. Though this market solution bypasses the statutory license, the availability of the statutory fee still helps dictate the price per work collective rights organizations charge, driving it down to what avoidance of procedural hassle would justify.

Copyright licenses known as open or free licenses seek to grant several rights to licensees, either for a fee or not. Free in this context is not as much of a reference to price as it is to freedom. What constitutes free licensing has been characterised in a number of similar definitions, including by order of longevity the Free Software Definition, the Debian Free Software Guidelines, the Open Source Definition and the Definition of Free Cultural Works. Further refinements to these definitions have resulted in categories such as copyleft and permissive. Common examples of free licences are the GNU General Public License, BSD licenses and some Creative Commons licenses.

Founded in 2001 by James Boyle, Lawrence Lessig, and Hal Abelson, the Creative Commons (CC) is a non-profit organization[68] which aims to facilitate the legal sharing of creative works. To this end, the organization provides a number of generic copyright license options to the public, gratis. These licenses allow copyright holders to define conditions under which others may use a work and to specify what types of use are acceptable.[68]

Terms of use have traditionally been negotiated on an individual basis between copyright holder and potential licensee.

Criticism


Some sources are critical of particular aspects of the copyright system.

Concerns are often couched in the language of digital rights, digital freedom, database rights, open data or censorship.[70] Discussions include Free Culture, a 2004 book by Lawrence Lessig. Lessig coined the term permission culture to describe a worst-case system. Good Copy Bad Copy (documentary) and RiP!: A Remix Manifesto, discuss copyright. Some suggest an alternative compensation system. In Europe consumers are acting up against the raising costs of music, film and books, a political party has been grown out of it, The Pirates. Some groups reject copyright altogether, taking an anti-copyright stance. The perceived inability to enforce copyright online leads some to advocate ignoring legal statutes when on the web.

Public domain


Copyright, like other intellectual property rights, is subject to a statutorily determined term. Once the term of a copyright has expired, the formerly copyrighted work enters the public domain and may be used or exploited by anyone without obtaining permission, and normally without payment. However, in paying public domain regimes the user may still have to pay royalties to the state or to an authors' association. Courts in common law countries, such as the United States and the United Kingdom, have rejected the doctrine of a common law copyright. Public domain works should not be confused with works that are publicly available. Works posted in the internet, for example, are publicly available, but are not generally in the public domain. Copying such works may therefore violate the author's copyright.

See also


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