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Copyright Basics

Copyright is a legal concept that the public encounters every day, often in unexpected and unknown ways. Being that this concept is so prevalent, it might prove helpful to understand some of the basics of copyright law to eliminate some of the common misconceptions that are so prevalent in society.

Article One, Section Eight of the United States Constitution empowers Congress “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”. Congress’ direct exercise of this power is embodied today in Title 17 of the United States Code. Copyright protection extends to original works of authorship that are fixed in a tangible medium of expression. Such works of authorship include: (i) literary works, (ii) musical works, (iii) dramatic works, (iii) pantomimes and choreographic works, (iv) pictorial, graphic, and sculptural works, (v) sound recordings, and (vi) architectural works. Importantly, copyright protection does not extend to an idea, procedure, process, system, method of operation, concept, principle, or discovery, all of which are the subject of patents. This means, for example, that an idea or concept, in and of itself, is not protected by copyright law and that nothing is protected until it has been translated onto paper or some other medium of expression.

It is also important to understand that ownership of a copyright is distinct from ownership of the tangible medium in which the work is embodied and that the transfer of ownership of the tangible medium does not, unless specified otherwise, transfer ownership of the copyright itself. This concept is perhaps best understood today by looking at computer software. When the copyright owner burns a computer program onto a disc and sells it to the end-user, the end-user is being sold a physical disc and a license to use the computer program on the disc, but the ownership of the computer program contained on the disc remains with the copyright owner.

A copyright owner has the exclusive right to reproduce and distribute the copyrighted work, prepare derivative works of the copyrighted work, and publicly perform or display the copyrighted work. There are exceptions to these rights of exclusivity. Probably the most oft employed exception is that of fair use. Under the fair use exception, a copyrighted work may be used for purposes of criticism, comment, news reporting, teaching, scholarship, or research. These exceptions are heavily case sensitive and various factors must be considered in determining whether a particular use qualifies as fair use. Such factors include whether the use is commercial in nature or for nonprofit educational purpose, the nature of copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the value of the copyrighted work. It is not enough to merely state that a use qualifies as fair use, to openly disclaim ownership, or to allege that “no copyright infringement is intended”. The use itself must actually qualify as a fair use.

A copyright owner can and should place a copyright notice on publicly distributed copies of the work. Such notices are commonly expressed by use of the © symbol. The notice should also contain the year of first publication and the name of the copyright owner. Proper notice of copyright ownership can defeat claims of innocent infringement.

Basic copyright protection is afforded to a work at the moment it is embodied in a tangible medium. Registration of the copyright with the state or federal government is not required. However, registration may be of immense value to the copyright owner because of the availability of statutory damages and attorney fees.

The computer and internet age has ushered in a slew of copyright infringement that we have never seen before. It is so easy now to publish media to a world-wide audience and the avenues for doing so are seemingly limitless. There is no doubt that the instances of intentional and unintentional copyright infringement have grown exponentially in the last twenty years, and I expect them to continue to do so. There is simply too much of it out there for law enforcement and the copyright owners themselves to police. However, I do suspect that in some unknown number of instances, the copyright owners themselves either do not mind or perhaps tacitly encourage such infringement, at least to a degree, because it offers them a broader audience for their material. Sort of like a commercial, preview, or free-trial for their material. It will be interesting to see how our laws, regulations, and judicial decisions continue to grow and evolve to accommodate new and future publication mediums.