Copyright

B

Notice and Registration

A copyright notice informs the public that a given work is copyrighted. The notice is placed in each published copy of the protected work and consists of either the word copyright, the abbreviation copr. or the symbol ©, accompanied by the name of the copyright owner and the date of first publication. For sound recordings, the symbol ℗ is used instead of the symbol ©. Under the 1909 act, publication of a work without a proper copyright notice resulted in a complete loss of copyright protection. Under the 1976 act, omission of notice also originally resulted in a loss of copyright protection, but this statute gave the author a right to correct the error by following certain specified procedures. Congress changed this rule in 1988. For all works published after March 1, 1989, copyright notice is optional, though highly recommended.

A copyright owner may register a claim of ownership with the U.S. Copyright Office in Washington, D.C. To register, the owner must fill out an application, pay a fee, and, if the work is published, send two complete copies of the work. The copies become part of the collection of the Library of Congress. Although copyright registration is theoretically optional, the copyright owner cannot go to court to enforce any rights until the work has been registered. In addition, early copyright registration allows an author more options in any litigation to enforce the copyright.

C

Rights of Copyright Owners and Licensing

The Copyright Act of 1976 gives copyright owners five exclusive rights. These rights are (1) only the copyright owner may reproduce or make copies of the work; (2) only the copyright owner may prepare adaptations of the work, such as translating a novel into another language or adapting the novel into a screenplay; (3) only the copyright owner may distribute copies of the work to the public; (4) only the copyright owner may perform the work in public; and (5) only the copyright owner may display the work in public.

Not all of these rights are granted to every type of copyrighted work. For instance, because of concerns about the economic power of the recording industry, Congress did not originally grant an exclusive right of public performance to sound recordings. As a result, while radio stations must secure permission and pay a fee to composers in order to broadcast their songs, they do not need the permission of—and do not need to pay—the record companies. In 1995, however, Congress recognized that consumers who were able to receive high-quality digital performances of recorded music over the Internet or through cable systems might decide to purchase fewer CDs. To protect the economic interests of the recording industry, Congress gave the owners of copyright in sound recordings a limited exclusive right to control the performance of the work by means of digital transmission.

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All of these rights are subject to many exceptions, which are detailed in the copyright act. For instance, certain nonprofit organizations can perform certain copyrighted works without the permission of the copyright owner, and libraries can make copies of damaged books without violating the copyright statute. The statute also permits owners of copies of computer software to make one copy as a backup.

Copyright owners often cannot or do not want to use all their rights by themselves. For example, the author of a novel may have no way to turn that work into a motion picture or translate it into a foreign language. Copyright law permits a copyright owner to enter into agreements that allow others to use some or all of the owner’s rights in return for payment. These transactions are called copyright licenses. Licensing greatly increases the ability of the copyright owner to make money from the work. For example, the author of a novel could license one publisher to print the work in hardbound copies, license another to reproduce and distribute paperback copies, and could also license a motion-picture company to create a movie based on the novel. The copyright owner can also sell the copyright entirely. This is called an assignment.

Copyright owners have the right to terminate any licenses and assignments after a certain number of years. If the author made the assignment or license after January 1, 1978, the author may terminate the arrangement 35 years after the relevant transaction. For assignments or licenses made before that date, the author can terminate the arrangement 56 years after the work was first published. This permits the copyright owner to renegotiate the terms of the transaction if the work turns out to be more commercially valuable than the parties had originally anticipated.

In certain cases, the statute allows parties to use copyrighted works without having to negotiate a license with the copyright owner, provided they pay a set fee, called a royalty, determined by the government. This is known as a compulsory license. The Copyright Act of 1976 gives cable television systems and satellite television systems this type of compulsory license. It also grants a compulsory license to record companies to use musical compositions, once the copyright owner has authorized at least one person to make recordings of the work. The royalty amounts are set by groups called Copyright Arbitration Royalty Panels of the U.S. Copyright Office.

D

Infringement

An infringement of a copyright is the reproduction, distribution, performance, or display of any copyrighted work without permission of the copyright owner or without a compulsory license. For example, making a copy of the text of a book or performing a play without permission would be infringements. Infringement does not necessarily require absolute similarity to the copyrighted work. For example, a novel based on the copyrighted work of another author may constitute an infringement, even if it does not reproduce the original novel word for word. The test for infringement is whether an ordinary observer would consider the second version “substantially similar” to the copyrighted work. This definition of similarity is sufficiently vague that courts reinterpret it with respect to each claim of copyright infringement.

Copyright infringements are usually dealt with in civil lawsuits in federal court. The law provides several remedies to copyright owners who prove an infringement of their work. In such a case, the court may order an injunction against future infringement, which requires the infringing party to refrain from committing further violations of the copyright. The court may also order the destruction of infringing copies; reimbursement for any financial loss suffered by the copyright owner; transfer of profits made from the sale of infringing copies; and payment of specific damages, plus court costs and attorneys’ fees. If the infringement was intentional, the infringing party can be subject to criminal penalties as well, which include fines and possible imprisonment.

E

Fair Use

A very important exception to the rule of copyright infringement is the concept known as fair use. Under this principle, the law permits the use of portions of copyrighted works for such purposes as criticism, comment, teaching, and research, even without permission of the copyright owner. In deciding whether a use is a fair use, courts consider such factors as the purpose of the use, the nature of the work, the amount of the work taken, and the effect it will have on the value of the original work. Some examples of fair use include quoting excerpts from a book in a review, scholarly article, or term paper; copying and distributing a newspaper article to illustrate an educational lesson; and using portions of a work in a parody of that work, such as a spoof version of a song. The Supreme Court of the United States has held that it is also fair use to use a home videocassette recorder to make copies of television programs and movies for later viewing.

IV

Copyright in the Digital Age

Until the 1990s, the greatest risk of infringement faced by copyright owners came from competitors. Only competitors had the resources, such as printing presses, to duplicate and distribute protected works in large numbers. When personal computers became widely available, however, the situation changed because computers stored information in the binary digits of computer code. End users of copyrighted works were suddenly able to reproduce copyrighted material digitally and to send the material instantly all over the world through the Internet. To combat unlawful copying of their works in this environment, some copyright owners began to use various protective measures. For example, some encrypted their works to make copying impossible. Others required that users enter a password to view or download a work. However, some users were able to bypass or circumvent these protective measures. See also Digital; Encryption.

In response to this problem, Congress adopted the Digital Millennium Copyright Act (DMCA) in 1998. This complicated law makes it illegal to defeat measures that control access to copyrighted works. It also forbids selling or distributing devices that defeat copy control mechanisms. Several motion picture studios used DMCA to shut down a Web site that posted computer code showing how to defeat the copy protection software of DVDs. Another portion of DMCA protects Internet service providers, such as America Online (AOL) and the Microsoft Network (MSN), from being found guilty of infringement when users of their service post infringing materials or send them in e-mail. This protection is only available, however, if the service provider cooperates with the copyright owners by removing the infringing materials when they receive notice of the infringement. A third part of DMCA makes it illegal to remove copyright information, such as the name of the author, from a work.

Some consumer groups have criticized DMCA, claiming that it takes away some of the traditional rights of users of copyrighted works. For instance, making it illegal to circumvent access controls might make it impossible to quote from a work in a critical review, conduct that is traditionally protected under the fair use doctrine. They also argue that its provisions might lead to invasions of privacy. This argument is based on various provisions of the DMCA allowing copyright owners to demand that Internet service providers (ISPs) reveal the names of users who have engaged in alleged violations of the law. Congress may decide to amend DMCA to respond to these concerns.

Another well-known copyright controversy in the digital age has involved peer-to-peer file sharing. This is the process of exchanging files—usually music files—with other people over the Internet. File swapping can violate the copyright laws if the people sharing files are making unauthorized copies of protected works without permission and without paying. However, it proved very difficult for copyright owners to stop this behavior.

In 2003 the recording industry began directly suing individuals who share copyrighted music over the Internet. The industry had some modest success in obtaining fines from college students and other individuals. Although these suits may have deterred many people from engaging in illegal file swapping, they also resulted in negative publicity for the record industry. In addition, individual suits proved inefficient, as millions of users download billions of files each month.

In an ongoing battle to curb Internet piracy, the music and entertainment industries also pursued the commercial services that make file sharing possible. The file-sharing services often claimed that they did not know about and could not monitor the activities of their users, and thus should not be held responsible for the actions of those users.

Some courts agreed with that argument. However, in 2001 several record companies succeeded in a lawsuit against the music file-sharing service called Napster. In 2005 the Supreme Court handed the entertainment and recording industries a crucial victory in a unanimous decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. The Court ruled that two file-sharing services, Grokster and StreamCast Networks, were liable for copyright infringement when individuals used their technology to illegally download copyright-protected music and movies over the Internet.