Copyright

Copyright entails the right of the creator of a work to exert some control over how it's used, who can copy and distribute it, and a right to have their authorship acknowledged.

Definition

Stephan Kinsella:

"Copyright is a right given to authors of “original works,” such as books, articles, movies, and computer programs. Copyright gives the exclusive right to reproduce the work, prepare derivative works, or to perform or present the work publicly. Copyrights protect only the form or expression of ideas, not the underlying ideas themselves.

While a copyright may be registered to obtain legal advantages, a copyright need not be registered to exist. Rather, a copyright comes into existence automatically the moment the work is “fixed” in a “tan¬gible medium of expression,” (http://mises.org/books/against.pdf)

Description

"Copyright gives authors legal protection for the following types of work:

• literary works (e.g., books, film scripts, and even private correspondence);

• dramatic and musical works (e.g., plays and music compositions recorded in the form of musical notation);

• artistic works and works of applied art (e.g., paintings, ceramics, carvings);

• maps and technical drawings;

• photographic works;

• motion pictures and sound recordings (e.g., movies, documentaries, and interviews);

• computer programs and databases.

Copyright law is intended to protect authors by granting them exclusive rights to sell copies of their work in whatever tangible form (printed publication, sound recording, film, broadcast, etc.) is being used to convey their creative expressions to the public. Although registration is not usually necessary, it is advisable for authors to place their name on the work. However, legal protection covers the “expression” of the ideas contained, not the ideas themselves, which are not actually required to be novel at all. Copyright gives owners exclusive rights, usually for the life of the author plus at least 50 years. In the case of sound recordings, copyright is usually conferred for 50 years and is available to the person or company responsible for making the recording.

Copyright owners have the legal right to stop others from:

• copying or reproducing the work;

• performing the work in public;

• making a sound recording or motion picture of the work; and

• broadcasting, translating, or adapting the work.

Others who wish to exploit copyright material in these ways must usually seek the permission of the copyright owner or an organization that represents copyright owners in a particular industry. Permission is likely to require payment of royalties. In some countries, copyright owners may have the legal rights to be identified on their work and to object to distortions of the work. These are known as moral rights and remain with the author even if the author transfers the copyright to somebody else, although in some jurisdictions these rights may be waived by agreement of the author.

The concept of neighbouring rights arose in response to technological developments which allowed a much broader dissemination of artistic works, and made manifest the failure of copyright law to protect the rights of performers, recorders, and other disseminators. These groups were responsible for the enormous increase in public exposure, but only the copyright owners of the works were able to benefit from this.

There are three kinds of “neighbouring right”. These are:

• the rights of performing artists in their performances;

• the rights of producers of phonograms in their phonograms; and

• the rights of broadcasting organizations in their radio and television programmes.

In 1961, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (the Rome Convention) provided so-called neighbouring rights protection from the following acts carried out without the performer’s prior consent:

• broadcasting or communication to the public of a “live” performance;

• recording an unfixed performance;

• reproducing a fixation of the performance, provided that the original fixation was made without the consent of the performer or the reproduction is made for purposes not permitted by the convention or the performer.

If a phonogram is made for commercial purposes and communicated publicly, the user must pay an “equitable remuneration” to the performers or to the producer of the phonogram, or to both. The minimum term of protection is 20 years from the performance, fixation, or broadcast.

The 1996 WIPO Performances and Phonograms Treaty. Article 2 defines “performers” as

actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore.

The Treaty provides two main categories of right: moral rights and economic rights. The moral rights of performers regarding his or her live aural performances or performances recorded in phonograms persist after the transfer of the economic rights, and include:

• the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and

• to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.

The economic rights of performers in their unfixed performances consist of the exclusive right to authorise:

• the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and

• the fixation of their unfixed performances.

• the direct or indirect reproduction of their performances fixed in phonograms, in any manner or form.

• the making available to the public of the original and copies of their performances fixed in phonograms through sale or other transfer of ownership.

• the commercial rental to the public of the original and copies of their performances fixed in phonograms

• the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them."

(http://www.iprsonline.org/guide/index.htm)

Discussion

Greg Bulmash

The General Public License and the Creative Commons are forms of copyright. Therefore, it makes no sense to simply oppose it, argues Greg Bulmash in his essay Should Copyright Be Abolished

Reply by K. Fogel

First argument:

In a reply essayK. Fogel argues that Greg Bulmash confuses copyright with Creditright:

"two completely different concepts: the right to be credited for a work, and the right to control distribution of that work. Attribution and copying are not the same thing: those who download songs illegally from the Internet do not typically replace the artist's name with their own, after all, and yet the RIAA is still filing lawsuits. So attribution is not really the issue here (and in general, letting data be copied freely actually helps prevent plagiarism, a topic covered in more detail here). In any case, no one objects to laws that protect credit. By all means, let's prevent the megacorporation from distributing your work without crediting you proportionally. But it would be a misnomer to call such protection "copyright" law, because it wouldn't have much to do with controlling copying. It would be a creditright, because it would simply enforce proper crediting." (http://www.questioncopyright.org/copyright_and_open_source)

Second argument is that the GPL only tactically uses copyright but in fact fundamentally opposes it:

"But while Bulmash is technically correct that this part of open source licensing depends (today) on copyright law, he's missing the forest for the trees. The basic argument of copyright abolitionists is that people should be free to share when sharing does not result in any diminution of supply. The GPL simply uses copyright law in a jiujitsu-like manner to enforce this principle, in a legal environment where sharing is prohibited by default and must be explicitly permitted to be legal. All the GPL does is create a space where permission to share is enforced. Take his exercise in imagination all the way: imagine if we had laws that did away with most prohibitions against sharing, but that enforced crediting and permitted authors to enforce GPL-like provisions requiring sharing.

We probably would not call such laws "copyright", since they wouldn't prohibit copying. Even if we did call them "copyright", the word would mean something so different from what it means today as to render Bulmash's arguments inapplicable. Indeed, the GPL today doesn't really prohibit people from copying, it merely imposes certain requirements on those who make and distribute derivative works. If you just want to copy and use a GPL'd work yourself, or even make a private derivative work from it, you're free to do so, and many organizations in fact do that. The GPL's requirement is just that if you want to share, you must enable others to share likewise.

This runs completely counter to the modern notion of copyright, and could be enforced using laws so drastically different from our laws today as to be unrecognizeable. Thus, to say that the GPL depends on copyright is like saying that reading depends on scribes. It may be true for a period of time, but it's certainly not built into the nature of things, and it's not an argument for supporting scribes after something better comes along." (http://www.questioncopyright.org/copyright_and_open_source)

More Information

1. Copyright Bibliography at http://questioncopyright.org/bibliography
2. See also: Patents and Trademarks
3. Against IP. Stephan Kinsella.