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Three basic copyright questions answered.

In doing some copyright education work recently (particularly with information professionals), I have found that people are still confused about basic, fundamental copyright questions. So I am devoting this month's column to the fundamentals by answering three basic questions about copyright law and policy. In fact, copyright Q&A will be occasional installments in this column.

1. What is copyright?

At first blush, this question seems so obvious and simple. The word "copyright" has a long history dating from the early 18th century in Britain, so the term is not new. Yet this question is important for several reasons.

First, copyright is no longer a backwater discipline relegated to the inspection of nerdy specialists. Instead, it is now central to the everyday activities of most American citizens.

Second, many people (lawyers and lay persons alike) often conflate copyright and "intellectual property."

Third, some important theoretical and political considerations influence the definitions of copyright. While such considerations are advanced issues that I am more likely to address online at Copycense (http://copycense.com) than in this column, they are important these days because of the rhetoric and framing that is being used to push copyright law and policy in one direction or another.

Dictionary Definitions of Copyright

That said, let's look at some definitions of copyright:

Black's Law Dictionary: 1. The right of literary property as recognized and sanctioned by positive law. 2. An intangible, incorporeal right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a specific period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.

Barron's Law Dictionary: The protection of the works of artists and authors giving them the exclusive right to publish their works or determine who may so publish.

NoloS Plain-English Law Dictionary: A bundle of exclusive rights granted to the author of a creative work such as book, movie, song, painting, photograph, design, computer software, or architecture. These rights include the right to make copies, authorize others to make copies, make derivative works, sell and market the work, and perform the work.

Oxford English Dictionary (OED): The exclusive legal right, given to an originator or an assignee, to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.

U.S. Copyright Office: Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

When I read these five definitions, several issues occur to me. First, all of them focus on two issues: rights and protection of rights. Current copyright law identifies a total of nine possible rights (six in Section 106, another three in Section 106A), although the applicability of some of these rights depends upon the type of work that is being protected.

However, I find it interesting that none of these definitions mentions copyright's limitations, which restrict any or all of those rights. Copyright's limitations are as integral a part of copyright law as the nine rights, so it seems odd that these five basic definitions of copyright fail to mention these limitations.

Second, the definition in Black's Law Dictionary offers a subtle but important focus on property. This emphasis on property is important for two reasons: 1) Courts and legal scholars regard Black's as the definitive dictionary of American law (based upon legal citation frequency), and 2) there has been an increasingly ferocious, contemporary debate among legal scholars about whether copyrighted works qualify as (or retain characteristics similar to) property in the same way as we consider land or personal possessions to be property. And if anyone thinks that comparisons of copyright to property lay solely with copyright maximalists, Harvard law professor Lawrence Lessig, who is decidedly not a copyright maximalist, refers to copyrighted works as property in his book Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. He qualifies this by saying that copyright is a special form of property, but he clearly refers to copyright as property. In any case, the theoretical tie between copyright and property is an important one that I will address later in this column.

Third, the definitions from Black's, OED, and the Copyright Office are quite technical and require some level of legal knowledge in order to understand them fully. Neither definitions from Barron's nor Nolos suffer these problems, but they also retain a value-laden allusion to rights, protection of rights, and the absence of any mention to limitations. Interestingly, none of the definitions even mentions the public domain.

Scholarly Definitions of Copyright

Several scholars have attempted to define copyright, so it is instructive to survey these descriptions as well.

Paul Goldstein, Stanford University: In his book Copyright's Highway: From Gutenberg to the Celestial Jukebox, Goldstein defines copyright as one's right to make copies of a given work (and to keep others from making copies of that work), and also as "the law of authorship."

William Patry, Google, Inc.: Patry, the author of the book Moral Panics and the Copyright Wars and the scholarly treatise Patry on Copyright, defines copyright as a government-sponsored social program that is a means to an end.

Jessica Litman, University of Michigan: In a 1990 article titled "The Public Domain," the law professor defined copyright as "a legal scheme, prescribed in the Constitution and put in place by Congress, to encourage the enterprise of authorship."

Again, it is interesting to note the emphasis that is placed on property or property protection as they appear in Goldstein's definition. Patry's definition, while emphasizing the role government plays in granting copyright protection to authors, does not identify what means are being used and what ends are the objectives.

Ultimately, I believe Litman's definition is the best because people can understand it on its face regardless of familiarity with the U.S. legal system. It also is the definition that does the best job of eliminating or limiting personal and theoretical values, judgments, or assessments.

2. What does copyright do?

Copyright protects "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," according to the U.S. Copyright Office. In other words, copyright protects any work that is 1) original and 2) recorded (or otherwise captured).

Originality

On one hand, the copyright equation (originality + fixation = copyright) is quite simple. As the Supreme Court once ruled, originality is the most important (and ultimately indispensable) part of the copyright equation.

Yet, the next natural question is, "What is original?" For copyright purposes, originality does not mean that someone creates a work before all others, nor does it necessarily even mean that someone must create a work that never has been created before. Essentially, "original" means a work that is created independently of another's work and does not copy another's work. Again, copying another's ideas is irrelevant for copyright purposes; it may bear on some other form of intellectual property or may amount to plagiarism, but it does not bear on copyright law because copyright does not protect ideas. Instead, copyright protects the work, the original (i.e., independent and nonduplicative) recorded manifestations of an idea.

The originality requirement in copyright law differs from an analogous standard in patent law. Patent law requires an invention to be new (including not being known to the public before someone invented it), useful (both in purpose and operation), and not obvious before one can qualify for patent protection. Copyright's originality standard is much less strict.

Recordation

The recordation, or fixation, element of the copyright equation is also easy to meet, particularly in a digitally networked ecosystem that is tied together by computing devices that contain hard drives. All that is required for fixation is that a work be stored in some perceptible form: computer hard drives, thumb drives, and cloud storage all qualify, as do the more traditional forms of fixation such as books, compact discs, tapes, and other tangible items.

3. Why have copyright?

Though many people consider copyright to be a legal regime that is better associated with practical than philosophical concerns, the field actually has an extensive theoretical background. Copyright's three main theories (incentive, natural rights, and property) try to justify why copyright exists or why it is necessary.

Incentive

The incentive theory reasons that copyright laws encourage authors to create new works of authorship by offering exclusive control of that work in return. According to the theory, the incentives of exclusivity and control spur authors to create new works, make them available to the public, and earn income from the dissemination of those works, actions that otherwise would not occur because of the ease with which creative works can be duplicated. The incentive theory (which also is referred to as the utilitarian theory of copyright) is inextricably linked to the economics of information, including information as a public good, which is defined as any good that can be used and enjoyed by an unlimited number of people without being exhausted or used up.

Natural Rights

In contrast, the natural rights theory reasons that copyright is necessary because it gives inherently entitled rewards to authors for their creative efforts. The natural rights theory purportedly also privileges authors' inherent property interests in the fruits of their labor over the utilitarian goal of progress in the arts. The natural rights theory is inextricably linked to arguments about the sanctity, uniqueness, and originality of authorial work; the notion of romantic authorship; and copyright ownership. This theory resonates more strongly in the European Union (EU) than it does in the U.S.

Property

Discussions about copyright-protected intellectual and creative works are not new, but the classification of copyright as property has been the subject of particularly intense debate recently. The classification of copyright-protected works as property (or even more specifically as an item that has characteristics akin to tangible, personal property) is important today because it often relates to corollary principles of control, dominion, and exclusivity. The notion that copyright works are someone's (or some entity's) exclusive property gives rise to the slippery concept called "piracy," which may be defined as the "theft" of copyrighted works, or even the use of those works without permission or compensation.

The Importance of These Theories

All three justifications of copyright have recently been challenged and disputed. Even the incentive theory of copyright, which has been long established as perhaps copyright's default theory, is being challenged as questionable (or possibly inapplicable) in the 21st century. Current Supreme Court Justice (then Harvard Law School professor) Stephen Breyer questioned copyright's justification in 1970, when he authored "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs." Economist Steven Shavell has argued in a recent working paper that copyright should be abolished for academic works since, in that arena, scholars would still publish as a way to secure professional esteem and professional advancement through the tenure process. Economists Michele Boldrin and David K. Levine have argued extensively that copyright provides no incentive to creativity or innovation. And several observers have questioned whether incentives apply to all creators or exclusively to professional creators whose works will be (or are) owned by corporate entities that depend on copyright ownership and the commoditization, sale, and licensing of copyrighted works for institutional survival.

However, the fact remains that these theories are embedded in current U.S. copyright law and policy and are likely not to change unless legislators and policymakers with different viewpoints begin re-evaluating these paradigms and their applicability. Virtually all contemporary battles at the intersection of copyright and commerce, including OCLC's data ownership grab, which it called a "policy change"; the Association for Information and Media Equipment's (AIME) litigation overture to the University of California--Los Angeles (UCLA) over alleged infringements in the school's electronic reserves system; and newspapers building pay walls, can be boiled down essentially to one of these three theories. So it is critical to understand them, their history, and their applicability (or non applicability) in the 21st-century information landscape.

K. Matthew Dames is the executive editor of Copycense (http://copycense.com) and the new publication Core Copyright (http://corecopyright.wordpress.com), which helps people learn U.S. copyright law. If you have a fundamental copyright question that you think would be a good candidate for a future "Three Basic Copyright Questions" column, send it to copycense@gmail.com. Send your comments about this column to itletters@infotoday.com.
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Title Annotation:Intellectual Property
Author:Dames, K. Matthew
Publication:Information Today
Geographic Code:1USA
Date:May 1, 2010
Words:2126
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