I have a question about copyright. What should I read before I ask it?

Question

Here are some basic things you should know about copyright law before you ask a question.

Read further and you may very well find the answer to the question that brought you here!

Some meta-background is here.

Answer 1

Overview

Copyright law protects a the copyright owner’s right to control certain intangible works, specifically protecting original expression but not underlying facts or ideas. Current copyright law is based on the Berne Convention in most countries. In the US, the basis for copyright law is Title 17 of the US Code (the Copyright Act of 1976 as amended). 17 USC 102(a) states the basic rule regarding what is protected:

original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device

The requirement that the work have a fixed form means that an extemporaneous lecture is not protected, but a lecture delivered from a prepared script is. 17 USC 1101 additionally prohibits unauthorized recording and “fixation” specifically for musical performances.

17 USC 102(b) further explains that ideas and facts are not protected:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Protected works must exhibit a modicum of originality, the controlling case in the US being Feist v. Rural Telephone Service, 499 U.S. 340. Names of products, names of characters in books, short phrases, and lists of ingredients are not protected by copyright, though product names are subject to trademark protection.

The rights which are protected in the US are spelled out in 17 USC 106 and 17 USC 106A. Section 106 states that subject to certain exceptions, the

copyright owner has the exclusive rights to make and distribute copies, make a derivative work based on the protected work, to publicly perform, transmit or display the work.

Section 106A grants limited "moral rights" to authors of "works of visual art" which are defined in a surprisingly limited way. (Only works with a single strictly limited edition are included.)

A copyright owner thus has the exclusive right to distribute (or authorize distribution of) a text that he owns the rights to, as well as the exclusive right to translate or otherwise adapt that work or authorize others to do so. If the rights holder authorizes a derivative work, the creator of the derivative work then holds the copyright to the original parts of the derivative work.

The above is largely true for almost all countries, although the legal details differ from one country to another. We now cone to areas where the actual rights differ more significantly by country.

Exceptions to copyright

Most countries define certain limited circumstances in which copyright does not apply, or in which what would otherwise be copyright infringement is lawful. Some countries define these more broadly, some more narrowly. Some define only a small number of exceptions, some ma larger number (India, for example, defines more than 28 separate exceptions). Common exceptions include personal use, news reporting, comment and criticism, use in classroom teaching, and literary reference. Among the well-known and particularly broad exceptions are fair-use (in the US only) and fair dealing (in the UK and several commonwealth countries).

Fair Use and other US Exceptions

One of the major exceptions to copyright protection is “fair use”, according to 17 USC 107, which is a defense (summarized here) that can be used if sued for infringement. This is the mechanism whereby US newspapers are allowed to quote short pieces from political speeches without first obtaining the author’s permission. The law of “fair use” is very complex (often incorrectly thought to allow any copying as long as it is not for profit). Other specified exceptions to copyright protection exist in US law, including permission for libraries and archives to make copies (17 USC 108), to passively retransmit cable or satellite signals (17 USC 119), as well as the right of the owner of a particular copy of protected material to dispose of (including sell) their copy, without the copyright owner’s permission (17 USC 109). Works of the US government, defined as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties” are also not subject to copyright within the US, under 17 USC 105.

Fair Dealing

Fair dealing is a term used to describe acts which are permitted to a certain degree without infringing the work, these acts are:

• Private and research study purposes.
• Performance, copies or lending for educational purposes.
• Criticism and news reporting.
• Incidental inclusion.
• Copies and lending by librarians.
• Caricature, parody or pastiche.
• Acts for the purposes of royal commissions, statutory enquiries, judicial proceedings and parliamentary purposes.
• Recording of broadcasts for the purposes of listening to or viewing at a more convenient time, this is known as "time shifting".
• Producing a back up copy for personal use of a computer program. (Source "UK Copyright Law: Fact sheet P-01"

Computer programs

Computer programs introduce a complexity to copyright protection, since in order to be used, a program must be copied from a distribution source and then to computer memory. In addition, to protect a computer system, backups are required, which means making a copy. 17 USC 117 partially addresses this issue, stating that under certain conditions

it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program

specifically when that the copy is necessary for the functioning of the program (it is loaded into memory): or to archive the program. This permission only applies to software that is owned by the individual: frequently, software is not sold per se, and instead a license to use the software is sold. The effect of this is that legal usage of software is usually governed by specific terms of use, whose enforceability resides in the fact that the user has not purchased the software itself, and has no permission at all to copy the software.

Copyright transmission and Works for Hire

The protected right is initially held by the creator of a work (17 USC 201) but in the case of a work for hire governed by an explicit agreement, the right is held by the person for whom the work is made. That right may be transferred to another person by explicit signed agreement (17 USC 204).

In the US the person or entity hiring or contracting with the creator of a work-for-hire is legally the author; this is not true in most other countries. In the US a work by a contractor may be a work-for-hire only if it falls into one of a limited list of categories; this is not so in many countries.

A copyright owner may sell, give, or otherwise transfer a copyright at any time that he or she pleases. It may also be transferred by will, or by the operation of law, such as in bankruptcy or tax forfeiture proceedings.

A rights-holder may also give permission to another for a particular usage via a license.

Copyright Duration

The US duration of copyright is specified in Chapter 3, for works created after December 31, 1977 as enduring for 70 years after the death of the author. Earlier works are subject to more complex rules pertaining to renewal, restoration and registration: any work published in the US which was created before 1923 is now in the public domain (works published elsewhere may have a longer duration of copyright).

In many other countries all works have a term based on the life of the creator (or last surviving coauthor). This varies from Life+50 years to Life+100, Some specialized types of works have shorter duration in some countries.

Copyright Notice

It is no longer required that the copyright symbol © be included in a protected work, nor that there be any notice that a work is in copyright. Copyright exists even when a work has not been registered, but works which are not registered enjoy less protection. Prior to 1978 notice was required in the US, and omitting it forfeited protection.

Damages

Chapter 5 of Title 17 specifies US legal remedies for infringement, which include injunctions, impounding of infringing material and per 17 USC 504 monetary awards for actual damages or for statutory damages between $200 and $150,000 plus attorney fees. However, statutory damages and attorney fees are available only to works registered before infringement started or within 3 months of publication. The plaintiff must choose between actual and statutory damages, and may not receive both in the same suit. The allegedly infringed works must be registered before any suit is brought.

In many countries statutory damages are not available, but registration is not required for a successful suit.