We live in an Information Age. The laws that govern how people use, share, and interact with information are more deeply entwined with daily life now than ever before. As citizens of this era, we have a duty to understand these laws, their applicability, and their problems — and we can profit by our knowledge. Whether we like it or not, copyright law is as fundamental to life in the Information Age as the right to free speech. Like free speech, copyrights in America have a basis in the U.S. Constitution. Article 1, Section 8 of the Constitution gave Congress the power “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 used its power to enact Title 17 of the United States Code, which deals with copyright law. Unlike the right to free speech, however, copyright law is far from commonly understood.
At its simplest, a copyright is the right to copy, modify, and/or distribute a piece of information. That information could be a painting, a film, a software program, a textbook, an email, or any number of other things. As the U.S. Constitution stipulates, it is also an “exclusive right.” Copyright law in the United States essentially states that the only person who has the right to copy, modify, and/or distribute an original work is the person who created that work. Anyone else who wishes to copy, modify, or distribute a copyrighted work must get permission from the copyright holder, or they can face legal repercussions. Copyright holders can demand special conditions or royalty payments in exchange for sharing their rights with others. This much, I hope, is common knowledge.
The purpose for copyrights, as the Constitution puts it, is “to promote the Progress of Science and useful Arts.” Giving authors the sole right to copy and distribute their creations gives them an incentive to create, for if anybody could copy works freely from the moment they were created, it would be very difficult for creators to earn any credit or rewards for their effort — and therefore, little reason to undertake the effort at all. Copyrights ensure that people have a reason to exercise their freedom of speech and push forward public knowledge and culture.
At the same time, excessive copyright exclusivity can hamper progress. Restrictions on copying, changing, or distributing original works could bring the flow of information to a standstill, or limit the spread of information to elite circles. Those things would hardly be good for a democracy. As a result, the U.S. Constitution stipulated that the exclusive rights that Congress could grant to authors were “limited.” They are limited in time, but they are also limited in terms of what kind of information can be copyrighted and by the “fair use” doctrine, which allows exceptions to copyright exclusivity in order to promote the fair flow of information. The result is that copyright law is far from straightforward — it is a balance between rights for creators and the rights of the public. Title 17 is today over 300 pages long. Here are some of the most crucial points of Copyright Law in the United States today:
U.S. Copyright Basics
The following points are based on summary information at the United States Copyright Office website.
- Copyright law protects original works of authorship that are fixed in a tangible form of expression, including literary, dramatic, musical, and visual works. These categories are broadly interpreted to include things as diverse as computer software, built architecture, poems, and charcoal drawings.
- Copyrights do not apply to facts, ideas, or methods, but a copyright can protect the way these things are expressed.
- Copyrights do not apply to original works that are not in fixed form — for example, an improvised performance can not be copyrighted, but a recording of it can be.
- Copyright is secured automatically whenever eligible new works are fixed in tangible form. As soon as you take a photo, write a paper, or record a song, you gain legal copyright over your creation. No further steps are necessary, but you have the opportunity of displaying notifications with your work (like the © symbol) and/or registering your work with the U.S. Copyright office to gain further legal security.
- A work created today will be protected by copyright law for 70 years after the death of the work’s last surviving author, in most cases. However, if the author is anonymous, pseudonymous, or an employee who created the work for hire, the work will instead be protected for either 95 years after publication or 120 years after creation, whichever is shorter.
- Copyright holders can transfer all or part of their rights to a work to others, as a kind of personal property. Transferring exclusive rights requires a written declaration signed by the copyright holder.
- Copyright law permits anyone to make “fair use” of copyrighted works, including limited copies and modifications for the purpose of criticism, reporting, teaching, research, and other reasons. Courts consider the following four factors in determining whether a given use of a work is fair:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
- Works created by the United States Government cannot be protected by copyright. Instead, works created by the federal government, by its agencies, and by federal employees in the course of their duties, are considered public property. They can be freely copied by anyone.
- Works published before January 1, 1923, are no longer protected by copyright law in the United States. They are now public property, and they can be freely copied by anyone.
Issues with Current U.S. Copyright Law
Copyright law, while it clearly offers benefits to creators and limits to serve the public interest, is not free from problems. No law can satisfy every conceivable situation, and society is continually evolving while laws remain fixed on the books. Most of current copyright law was established long before the advent of the present “Information Age,” and the makers of present law could not have envisioned such things as peer to peer networking or the sheer rate at which information is now produced and disseminated online at blogs, discussion boards, and social networking sites. As technology and society change, laws can often lag behind in serving society’s interests.
What are society’s interests today? Copyright infringement on the internet today is rampant, despite concerted efforts to curtail it. Does that mean we need to strengthen our enforcement of current law, perhaps at the cost of another constitutional right, that to privacy? Does it mean that we need to change how the law applies and what kind of uses are defined as fair, perhaps at the expense of creators’ rights over their work? Does copyright law still serve its purpose of fostering innovation in the fast changing digital environment, or have copyrights become a burden that ties society to the past? These are difficult questions that no one person can answer, but that all citizens and our elected officials need to discuss.
The blog Letter From Here noted earlier today that the Madison Public Library will be hosting a screening and discussion of the film Copyright Criminals this Saturday. I encourage anyone interested to check out the blog and the event in Madison.
Another controversial aspect of contemporary copyright law are the lengths that copyright protections endure — the lifetime of the author plus 70 years (or up to 95 years after publication for works created anonymously or by employees for hire). In 1790, when the U.S. Congress first established copyright law in America, copyrights only endured 14 years and could be renewed for a second 14 year term if an author chose to do so. Gradually, Congress reinterpreted the “limited times” stipulated in the Constitution so that now works are automatically protected long after an author dies. Whereas creators once had to make a concerted effort to extend the length of a copyright, they now have to take specific action to give up their copyright protections before the expire, if they so choose. Does granting exclusive copying rights to an author and that author’s heirs for 70 years after the author dies truly “promote the Progress of Science and useful Arts” like the U.S. Constitution intends, or does it restrict the flow of information and hinder innovation?
Copyleft is a system that addresses some of the problems with copyright law today. The copyleft concept is not an alternative or replacement to copyright law. Instead, it works innovatively within existing law to create a framework that promotes the widespread copying, modification, and distribution of new works.
Copyleft relies on licensing agreements to work. Whereas licensing agreements (as mentioned earlier) were first developed to aggressively limit how consumers could use copyrighted material, copyleft licensing agreements turned that principle on its head by stipulating that everyone has permission to legally copy, change, and share an author’s work under the condition that users make their copies and/or changes available to others under the exact same terms.
The provisions of copyleft licenses mean that no one can claim exclusive rights to a copylefted work. When an author makes a creation available using a copyleft license, anyone is free to take it and build on it or incorporate it into something new — to “promote the Progress of Science and useful Arts” — and the contributions that people make go right back to the general community, where others can make further changes, reinterpretations, and improvements.
Richard Stallman deserves most credit for the concept of copyleft. He launched the idea in 1983 while working as a computer programmer at MIT. Stallman felt that existing copyright practices were unsuitable for the collaborative development of software, and he launched the GNU Project to allow disparate programmers join in developing a complete computer system using copyleft-licensed software code. Stallman’s innovation now forms the basis for much of the World Wide Web. The servers powering many websites, ranging from Acceity to Google, are powered by Linux, a copyleft-licensed operating system. Websites including Facebook and Twitter use a copyleft-licensed database system called MySQL to store the huge collections of data posted by their users. Many blogs, including Acceity, are based on a copyleft-licensed publishing platform called WordPress. Several useful websites including Wikipedia employ copyleft licenses for all of their content, allowing everyone to adapt and build on the material they offer. A large number of internet users are even accessing the web using a copyleft-licensed web browser: Mozilla Firefox.
Copyleft is not appropriate for all creative works, and it does not solve all of the problems with current copyright law — for one, copyleft only applies to creators who choose to make their project available under a copyleft terms, or who choose to use copyleft-licensed material to create works that must be licensed in the same way. Copyleft has unquestionably encouraged innovation on the Internet, and in that way, it has accomplished what the framers of the U.S. Constitution had intended to achieve with copyright all along. I have gained personally from copyleft in a number of ways — this website runs using copyleft-licensed software, and I can sometimes illustrate my writings here with images that are made available for use and modification under a copyleft license. Because I appreciate what I have gained from creators who used copyleft licensing for their works, I have also begun to offer my own original photographs at Acceity using the Creative Commons Attribution-ShareAlike License — the same copyleft license used by Wikipedia.
Copyright is a complex legal issue. Copyright law has origins in the U.S. Constitution, which contains provisions aimed at serving society by promoting creativity and innovation. In our present Information Age, copyright law provides the legal framework for much of our economy, as well as day-to-day life in Digital America. Copyrights are not without problems, however. In some ways, the law seems to lag behind technological and societal developments. Copyleft has provided a way around some of these problems, especially in the field of software development and the Internet, but it is not a complete solution. What do you think about copyright law, its usefulness, its implementation, and its future? Are you a creator, and if so, how do you make use of the copyright protections afforded to your works? Are you a heavy user of copyrighted material, and if so, does the existing legal framework aid or discourage your interaction with our information-heavy world? Leave your comments below!
This post is for your general information only, and the information above should not be regarded as legal advice. If you have specific concerns relating to how Copyright Law affects you or your situation, contact a lawyer.