Module 1: Copyright and the Public Domain

by Melanie Dulong de Rosnay and William Fisher

Learning objective

At the end of this introductory module, you will understand key copyright terms, the principal rights enjoyed by copyright owners, and the principal limitations on those rights. All of the rules and concepts presented in this module will be examined in greater detail in subsequent modules. However, this module may also be used independently.

Case study

“I want to build a course pack for my students, what material may I include?”

Angela, a music professor, is visiting her school’s library to collect material to build a course pack for her students. She would like to include paper copies of excerpts from books, electronic resources and scores, as well as make available online selected music and videos together with her comments. Nadia, the librarian, will explain to her what she may and may not do.

What is copyright and what is the public domain?

Copyright law gives authors temporary rights to control certain uses of their creations. Specifically, it gives them the exclusive rights to reproduce, modify, distribute, publicly perform, or publicly display their works. Equally important, copyright law establishes many limitations on these rights – several of which, as we will see, benefit librarians. Once the copyright on a given work has expired, the work is said to “fall” into the public domain. The public domain may be thought of as a reservoir of creative works that may be used by anyone for any purpose.

What explains and justifies copyright law? The answers to that question vary. The most common explanation is that the copyright system establishes incentives that stimulate the production and dissemination of creative works, from which we all benefit. Another answer is that the copyright system provides authors fair rewards for their intellectual labor. A third explanation argues that creative works deserve protection as extensions of the personalities of their creators. Finally, it is sometimes argued that the copyright system helps foster a rich and stimulating culture.

From each of these standpoints, the public domain is just as important as the exclusive rights created by copyright law. A deep reservoir of publicly available works provides authors the raw materials they need to create the next generation of books, movies, songs, and so forth. Giving authors fair rewards for their labor or protecting their personality interests does not require giving them permanent copyrights; at some point after their deaths, their legitimate rights expire, and the public is properly given free access to their creations. And maintaining a lively public domain is just as important to a rich and stimulating culture as sustaining the rivers of creativity.

Who makes copyright law?

Each country establishes its own copyright laws. Those laws determine such things as who acquires a copyright, what rights the copyright owner enjoys, how long the copyright lasts, and so forth.

Several international treaties (which you will learn about in the next module in this series [link]) set limits on the flexibility that each country enjoys when shaping its copyright laws. But within those limits, each nation sets its own rules. As a result, copyright law varies significantly from one country to another.

Copyright laws in countries whose legal systems are rooted in the common law tend to be different from copyright laws in countries whose legal systems are rooted in the civil law. In common-law countries, most of which were at some point related to Great Britain, courts have considerable flexibility in shaping and reshaping the law. In civil-law countries, whose laws originate in Roman law, courts have less discretion and authority. Many variations in copyright law are correlated with this broad division. In some countries, religious legal systems are also influential – and also affect copyright rules. An index to the world’s legal systems, showing the heritage of each country, may be found at http://en.wikipedia.org/wiki/Legal_systems_of_the_world.

In all countries, copyright law is in flux. Legislatures and courts frequently make minor changes in the rules and occasionally make major changes. Often those reforms are driven by interest groups, which (not surprisingly) seek changes that will benefit their own members. In the past, associations of librarians have frequently played important roles in the debates over how copyright laws should be modified.

What is protected by copyright, and what is not

Copyright law covers all “original works of authorship.” Such original works come in many forms. For example, in almost all countries, all of the following are protected by copyright law:

· literary works (books, articles, letters, websites, etc.);

· musical works;

· dramatic works (operas, plays);

· graphic arts (photographs, sculptures, paintings, etc.);

· motion pictures and audiovisual works (movies, videos, television programs; etc.);

· architectural works;

· computer software.

In some countries, sound recordings are also protected by copyright law; in other countries, sound recordings are protected by a separate, related set of rules known as “neighboring rights.” In some countries, government works – such as charts, official reports, and judicial opinions – are protected by copyright law; in others, they are considered part of the public domain.

Copyright never applies to ideas or facts. It only covers “original expression” – in other words, the distinctive way in which ideas are conveyed. So, for example, the information contained in a newspaper article is not protected by copyright law; you are permitted, after reading the article, to write and publish a new article conveying the same information in different words. Similarly, you are permitted, after reading a work of history, to write another book, expressing in different words the same facts.

Most countries require the original expression to be fixed in a tangible medium, like paper or a digital recording format, in order to enjoy copyright protection. In those countries, improvisational performances – such as jazz or choreography – are not protected unless their authors record them.

In general, the author of a work enjoys copyright protection as soon as the work has been fixed – for example, through writing, painting, or audio recording. Until that moment, copyright law has no applicability. For instance, a screenplay that exists only in the screenwriter’s mind or the plot of a novel that the novelist explains orally to a potential publisher is not protected. But once fixation occurs – even of a rough, preliminary draft – copyright protection attaches, even if the work has yet to be published or even made public. So, for example, private letters, diaries, and email messages are all protected by copyright law.

Some countries used to require published works to be registered or to carry a copyright notice with the name of the author and the year of publication in order to enjoy copyright protection. Such procedures are no longer necessary. Nevertheless, such formalities may be helpful to prove authorship, or to provide information on whom to contact to get authorization to reuse a work. And in some countries, compliance with these formalities is necessary before one is permitted to sue someone for copyright infringement. In addition, some countries continue to require publishers to deposit one copy of every new work in a designated office, often the National Library.

Who obtains a copyright?

A copyright is ordinarily obtained by the author of a work. If you write a novel, paint a painting, or compose a song, you acquire the copyright in your creation.

Complications arise, however, when a copyrighted work is created by an employee acting within the scope of his or her employment. Countries vary significantly in how they deal with such situations. Typically, in countries that follow the common law tradition, the copyright in a work prepared by an employee goes to the employer. By contrast, in countries that follow the civil law tradition, the copyright typically goes to the employee. However, in civil-law countries, employment contracts or even copyright law often give employers rights over their employees’ creations similar (though not identical) to the copyrights enjoyed by employers in common-law countries.

What rights does a copyright owner enjoy?

Copyrights typically carry with them two kinds of rights: economic rights and moral rights. Economic rights enable copyright owners to control the economic exploitation of their works. The primary economic rights are: · the right to reproduce the work – in other words, to make copies of it; · the right to create derivative works, such as translations, abridgments, or adaptations; · the right to distribute the work – for example, by selling or renting copies of it; · the right to perform or display the work. Only the copyright owner can engage in these activities, unless the owner grants permission to other people to do so.

Moral rights are designed to protect authors’ noneconomic interests in their creations. The primary moral rights are: · the right of integrity – for example, the right to prevent the destruction or defacement of a painting or sculpture; · the right of attribution – in other words, the right to be given appropriate credit for one’s creations, and not to be blamed for things one did not create; · the right of disclosure – the right to determine when and if a work shall be made public; · the right of withdrawal – the right to remove from public circulation copies of a work one has come to regret.

Moral rights do not exist in all countries. Generally speaking, they are recognized more widely and are enforced more firmly in civil-law countries than in common-law countries.

A close cousin of copyrights are so-called neighboring rights. These consist of economic rights granted to persons who are not authors of works but who contribute in some way to the creation or dissemination of embodiments of those works, such as performers, music and film producers, and broadcasting organizations.

More remote cousins of copyrights are privacy and publicity rights. These do not exist in all countries. Where they do exist, they may prevent the public distribution of works, such as films or photos containing names, images, or other personal identifiable information, without prior permission from the persons represented in those works. These may affect both published works and unpublished archives.

Using Copyrighted Works

Under four circumstances, persons other than copyright owners are permitted to engage in the activities described in the preceding section.

First, many books, articles, sound recordings and so forth have fallen into the public domain and thus may be used by anyone for any purpose. All works eventually fall into the public domain because, as we have seen, copyrights do not last forever. Unfortunately, determining whether the copyright on a particular work has expired is harder than one might think. A guide helpful in determining whether a copyright in the United States has expired may be found at http://www.copyright.cornell.edu/public_domain/. Guides to the corresponding rules in other countries may be found at http://en.wikipedia.org/wiki/Wikipedia:Copyright_situations_by_country. Even if the maximum term of the copyright on a particular work has not expired, it may have fallen into the public domain because the copyright owner neglected (or decided not) to “renew” the copyright. Finally, on occasion, a copyright owner will dedicate a work to the public domain – just as landowners occasionally dedicate real property to the public for use as a park.

Second, as mentioned above, the copyright laws of every country establish various exceptions and limitations to the rights of copyright owners. In other words, the laws identify activities that users can engage in for free and without permission. Most of these exceptions are quite specific. Examples include quoting short passages of literary works for purposes of criticism; photocopying for archival purposes by libraries, and converting works into formats suitable for handicapped persons. A few, however, are general and open-ended. The most general of all is the fair-use doctrine, which applies in the United States and a few other countries.

Third, a person who wishes to use a copyrighted work (that has not fallen into the public domain) in a way not covered by a special statutory exception or limitation can, of course, obtain the permission of the copyright owner. The simplest way to obtain such permission is to request a license. Often, the copyright owner will grant a license for free. At other times, the owner will demand a fee. In either event, the license should be specific and in writing.

Various organizations facilitate the processes of requesting and granting copyright licenses. For example, in some countries, collecting societies act as agents for large numbers of copyright owners, for example by granting “blanket licenses” to radio and television stations that wish to make use of their entire catalogues in return for an annual fee. Another example is Creative Commons, which helps copyright owners grant free licenses to use their works in specified ways – and helps potential users determine quickly and easily what licenses have been granted.

Fourth and finally, most countries require copyright owners to grant to users permission to engage in certain activities in return for fees set, not by the copyright owners, but by a government tribunal of some sort. For example, the owners of the copyrights in musical works may be obliged to permit musicians to make “covers” of songs that have already been recorded and distributed to the public – in return for fees set by the government. Such co-called “compulsory licenses” are becoming increasingly common.

Back to the case study

Nadia (the librarian) should help Angela (the professor) organize the set of materials she has gathered by asking a series of questions: · Have any of the materials fallen into – or been dedicated to – the public domain? · Of the remaining materials, have any been licensed under open-access terms, such as a Creative Commons license? · With respect to any materials not covered by such licenses, does a statutory exemption permit Angela to use them in particular ways for free? · Does the library already own a license to use particular works in the ways Angela proposes? If none of the foregoing apply, Angela and the library may need to obtain permission to engage in the activity at issue – either directly from the copyright owner or through a collective rights organization.

Additional resources

“A Fair(y) Use Tale” is a 2008 short movie on copyright and fair use in the US. According to the synopsis, “professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms”. http://cyberlaw.stanford.edu/documentary-film-program/film/a-fair-y-use-tale

Carol C. Henderson, “Libraries as Creatures of Copyright: Why Librarians Care about Intellectual Property Law and Policy,” 1998. The former Executive Director of the Washington Office American Library Association explains which role librarians may play to maintain copyright balance. http://www.acrl.org/ala/aboutala/offices/wo/woissues/copyrightb/copyrightarticle/librariescreatures.cfm

Assignment and discussion questions

Round #1 questions

Based on the textbook and the additional resources, please explain briefly what copyright law attempts to protect, and what legal mechanisms are available to give access to works to the public.

Besides helping a professor to build a course pack, please describe one or two situations or projects involving copyright law and the public domain in the work of librarians.

Round #2 question

Please read the answers that your colleagues provided to the Round #1 questions, and comment on them. Try to explain why you agree or disagree, and which new ideas may have come to your mind after reading your colleagues’ answers.

Do not hesitate to give examples you faced in your life as an author, a member of the public, or a librarian.