Module 3: The Scope of Copyright Law

By Inge Osman, Melanie Dulong de Rosnay and William Fisher

Learning objective

This module discusses the kinds of creations and the kinds of activities that copyright law does and does not cover.

Case study

The course pack will build upon, quote and gather preexisting material by other authors. What is the status of the output after the professor’s contribution?

Angela, the professor, collects articles and books with the help of some students and research assistants. She will discuss with Nadia, the librarian, the distinction between ideas, which can be freely reproduced, and works, which can be quoted.

What Does Copyright Law Protect?

The Definition of a Literary and Artistic Work

The Berne Convention, discussed in Module 2: The international framework, establishes a literary and artistic work as the subject matter of copyright. Article 2, Section 1 of the Convention defines such a work expansively:

The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

To be entitled to protection, a work falling into this broad category must satisfy two basic requirements – originality and fixation – which are explained it detail below.

The Concept of Originality

Although neither the Berne Convention Berne Convention nor the TRIPS Agreement expressly requires originality, almost all countries require some level of authorial creativity for a work to qualify for copyright protection. How much creativity it required? Unfortunately, there is no uniform answer to that questions; each country independently sets the originality standard that works must meet.

Spain, the United Kingdom, Mexico, Canada, India, and the United States all extend copyright protection only to “original works.” United States law defines originality as independent conception. France and Spain on the other hand, following the moral rights tradition, define originality as the “imprint of the author’s personality” on the work.

In most countries, the work of authorship need not be original in the sense that it is novel, ingenious, or has aesthetic merit. For example, the US Supreme Court established the modern definition of originality as requiring only that the work be independently created by the author and that it possess “at least some minimal degree of creativity.” The Court made clear, however, that the “requisite level of creativity is extremely low;” a work need only “possess some creative spark no matter how crude, humble or obvious it might be.”

The Requirement of Form or Tangible Medium of Expression

The Berne Convention leaves it up to the individual countries to decide whether to require that copyrighted material be “fixed.” Article 2, Section 2 of the Convention states:

“It shall be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.”

Many countries do not require that a work be produced in a particular form to obtain copyright protection. For instance, Spain, France, and Australia do not require fixation for copyright protection. The US and Canada, on the other hand, require that the work be “fixed in a tangible medium of expression” to obtain copyright protection. US law requires that the fixation be stable and permanent enough so that it may be “perceived, reproduced or communicated for a period of more than transitory duration.” Similarly, Canadian courts consider fixation to require that the work be “expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance.” The definition of “fixation” in the US excludes “purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the ‘memory’ of a computer.”

Many courts, including those in the US, have deemed computer programs fixed when stored in a silicon chip. The audiovisual effects of computer games are commonly considered to be fixed because their repetitiveness makes them “sufficiently permanent and stable.”

The requirement of fixation may become problematic when applied to live performances. For instance, US law specifies that a work must be fixed “by or under the authority of the author.” This means that if someone were to record and distribute copies of a live performance without permission, the performer would have no legal recourse under copyright law because that performance would not be fixed and therefore would not be eligible for copyright protection. Countries that grant copyright for perceptible works regardless of fixation do not have similar problems. In the US, Congress tempered the fixation requirement by declaring “a work consisting of sounds, images, or both that are being transmitted, is ‘fixed’if a fixation of the work is being made simultaneously with its transmission.” This rule provides a solution for performances that are being broadcast or transmitted, but, arguably, live performances that are simultaneously recorded but not transmitted are still unprotected by copyright law.

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) requires all members of the World Trade Organization (WTO) to protect live musical performances. This means that even countries with fixation requirements must enact statutes to ensure the protection of musical performances without fixation. The US, for instance, enacted a special provision prohibiting the “fixation or transmission of a live musical performance without the consent of the performers, and prohibiting the reproduction of copies or phonorecords of an unauthorized fixation of a live musical performance.” Notice, however, that this provision is limited to “musical” performances.

The Exclusion of Ideas from Copyright Protection

As indicated in Module 1: Copyright and the public domain: an introduction, copyright law does not protect ideas or facts; it only protects the expression of those ideas or facts. In this regard, the US copyright statute is typical: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work.” The same principle can be found in the major treaties. The Berne Convention, for example, states that protection “shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.” Both the TRIPS Agreement and the WIPO Copyright Treaty state that expressions are copyrightable, but not “ideas, procedures, methods of operation or mathematical concepts as such.”

The Berne Convention permits individual member countries to determine whether this basic principle should be extended to deny protection to works created by government agencies: “[I]t shall be a matter for legislation in the countries of the Union to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.”

It is sometimes said that the purpose of excluding ideas and facts from the scope of what is copyrightable is to promote the public interest in freedom of speech. Extending copyright protection to ideas or facts would inhibit public debate by allowing copyright holders to control uses of the concepts or information contained in their works. Both political freedom and the progress of knowledge would suffer.

On occasion, an idea and its expression may become indistinguishable. If there is only one way of expressing a particular idea, the idea and the expression of that idea are said to “merge.” The merger doctrine in copyright law was developed to deal with such cases, removing from the scope of copyright protection those expressions that constitute the only way of expressing an idea. What about situations in which an idea can only be expressed in a limited number of ways? The courts in some countries deal with such situations by granting limited or “thin” copyright protection to those expressions – in other words, prohibiting only verbatim copying, or virtually identical copying.

The Difference between owning a copy and owning a copyright.

Ownership of a physical copy of a work is separate from copyright ownership. Just because you own a copy of a book doesn’t mean you are free to copy it.

Ordinarily, when the creator of a work sells or transfers a copy of it to another person, he does not surrender his copyright unless he expressly agrees to do so. So, for example, the writer of a letter or an email message retains the copyright in the letter even after he has sent it to the recipient.

For the most part, the lawful owners of copies of copyrighted works are free to sell or give those copies to other people – or to destroy or mutilate them. However, some treaties and national legal systems recognize “moral rights” that set limits on the freedom of the owners of copies to act in these ways. The Berne Convention, for example, provides:

Independently of the author’s economic rights, and even after transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

The Relationship between Copyright Infringement and Other Unauthorized Activities

Copyright infringement is the unauthorized use of a copyrighted work in a manner that violates one of the copyright owner’s exclusive rights.

We will examine those rights in detail in Module 4: Rights, Exceptions, and Limitations. It should be emphasized that copyright infringement covers only a subset of the ways in which copyrightable works may be used without permission. Some unauthorized uses that do not constitute copyright infringement may violate other legal rules; some may violate nonlegal social norms; while still others are both lawful and socially approved. This complex pattern of norms finds expression in a variety of terms, which are frequently confused. We disentangle some of them below and they will be studied in Module 7: Enforcement.

Plagiarism consists of the use of ideas or words of someone else without properly crediting the source. It is entirely separate from copyright law. Common sanctions for plagiarism are expulsion or suspension from school, discharge from a job, and social disapproval.

“Piracy” has no strict definition within (or outside of) copyright law. In recent years, the term has been used increasingly often (typically by nonlawyers) to refer to unauthorized and unexcused reproductions of audio and video recordings, but the copyright laws do not themselves refer to “piracy.” Insofar as the term connotes the violence that commonly accompanies the seizure of ships on the high seas, it is misleading when used in connection with unauthorized uses of literary works.

“Counterfeiting” is defined in various ways. Most often, the term refers to the creation or distribution of imitations (typically inferior-quality) imitations of genuine works – with the intent to deceive the public concerning their authenticity. Conterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. (link from counterfeiting to ACTA proposal in Module 2: The international framework)

Finally, it bears repeating that many unauthorized uses of copyright works do not violate any legal regime. Such permissible unregulated uses include reading a book, performing a play privately, selling a copyrighted work, and watching a copyrighted performance.

Copyright Duration

The Berne Convention requires that the term of copyright protection be, at a minimum, the life of the author plus an additional fifty years after her death. Member countries are free, however, to adopt longer terms, subject to the following limitation:

“In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.”

Many countries have exercised the discretion left to them by the Berne Convention. The result is that the duration of copyright varies substantially by country.

The resulting difficulty in determining how long a copyright will last is exacerbated by the fact that many countries make the duration of copyright dependent on the type of work at issue. The Czech Republic and the Netherlands, for instance, grant copyright protection for the life of the author plus 70 years for literary works, and for the life of the longest living joint author plus 70 years for jointly held works. This construction is deceptively simple, because it applies only to works created on or after April 7, 2000 and December 29, 1995 respectively. Works created before those dates, respectively, are subject to different and more complicated copyright duration terms. The sporadic lengthening of copyright terms that has occurred internationally has led to a complicated patchwork of copyright duration terms determined by the category of work, and the date of creation or publication.

Click here to learn about the Case of the Canadian Online Repositories of Public Domain.

To learn about Recent Term Extensions Controversies (Eldred v. Ashcroft).

Extensions of the Scope of Copyright Protection

In recent years, copyright law has gradually expanded to encompass more subject matters and more exclusive rights. The Berne Convention, the TRIPs Agreement, the Universal Copyright Conventions and the WIPO Copyright Treaty work together to produce minimum standards of protection that countries must meet, thereby extending copyright protection generally.

Some of these extensions can be justified on the ground that they stimulate additional creativity. On the other hand, the extension of copyright to more kinds of works and for a greater length of time has resulted in the reduction in the amount of material in the public domain. As a result, materials that could otherwise be used in the creation of new artistic or literary works can no longer be used.

As copyright law has expanded, it has fragmented. In other words, special rules have been devised to deal with particular kinds of works. Some of those special rules are described below.

Audiovisual and Cinematographic works, Computer Programs

Audiovisual or cinematographic works are collective projects that often involve the contributions of several individual authors, discussed in the Rights Ownership and Works for Hire topics in Module 4: Rights, Exceptions, and Limitations. Given the large number of people that are involved in their creation, treating each contributor as a joint author of the work would give rise to practical problems. For instance, in order for use of the film to be assigned, each contributor would need to agree to license the copyright.

Different countries have try to overcome this problem in different ways. The French Intellectual Property Code treats contributors to films as co-authors but implies into the author-producer relationship a transfer of the exploitation rights of the material to the producer. Countries such as the United Kingdom and the United States, by contrast, vest the authorship and copyright ownership of these works in a single person. For instance, the 1988 Copyright, Designs and Patent Act in the United Kingdom typically vests these rights in the producer. The U.S. Copyright Act on the other hand treats the contributions to a audiovisual or cinematographic work as works made for hire, thereby also vesting authorship and copyright ownership in one person, typically the producer. The Berne Convention recognizes and respects the differences among countries in the allocation of rights to audiovisual and cinematographic works.

Computer programs constitute another special category of works. Although the Berne Convention does not address computer programs, the TRIPS agreement requires that computer programs be protected as literary works. Like audiovisual works, computer programs are often the products of the efforts of many individuals. Here too, countries vary in the way they handle allocation of authorship rights. German copyright law, for example, contains a presumption giving exclusive rights to the employer in the context of computer software.

Broadcast, Recording, Interpretation

The Berne Convention requires that the author of a copyrighted work be given the exclusive right to authorize

(i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images; (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original public one; (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

The Berne Convention permits individual countries to determine which of these rights may be exercised and in what circumstances, but stipulates that they should not be applied in a way that would be prejudicial to an author’s moral rights. Countries such as Ireland, Kenya and Oman have enacted copyright laws extending to authors the right to control and license broadcasts of their work.

Works of Folklore and Indigenous Knowledge

Copyright protection for traditional cultural expressions or for works of folklore has been increasing. Such works typically are created by communities rather than individuals. According to WIPO, “works of traditional cultural expression include music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives.” Among the purposes of protecting cultural products of these sorts the promotion of creativity and cultural diversity. Countries such as the Philippines, Panama, and New Zealand currently have legislation specifically extending intellectual property protection to works of folklore.

For instance, Oman’s legislation on “Promulgating the Law on the Protection of Copyrights and Neighboring Rights” extends copyright to folklore, defining it as “literary, artistic or scientific works created in Oman by popular groups expressing their cultural identity, which are transferred from generation to generation and represent a fundamental element in the national popular traditional heritage. The competent authority shall exercise the author’s rights in works of folklore to object to any mutilation, modification or unlawful commercial exploitation.”

What is an “Author”?

Rights Ownership Rules: How to Determine the Original Right Holder

The Berne Convention gives member countries broad latitude in determining who is considered an author, and therefore the original copyright owner, of a literary or artistic work. Article 15(1) provides:

“In order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such, and consequently be entitled to institute infringement proceedings in the countries of the Union, it shall be sufficient for his name to appear on the work in the usual manner. This paragraph shall be applicable even if this name is a pseudonym, where the pseudonym adopted by the author leaves no doubt as to his identity.”

The majority of civil-law countries stipulate that only “persons” in the ordinary sense can qualify as authors. Spanish copyright law, for example, specifies “the natural person who creates any literary, artistic, or scientific work shall be considered the author thereof.” Similarly, French copyright law states that “authorship shall belong, unless proved otherwise, to the person or persons under whose name the work has been disclosed.” Common-law countries, by contrast, more often permit organizations – for instance, corporate employers – to qualify as “authors.”

The determination of who the author of a literary or artistic work is often straightforward: the author is the person who conceives of and gives expression to an idea. However, in other cases, this determination becomes more complicated and may depend on who assists in the production, oversees and directs the arrangement of the details of the literary or artistic work. In such cases, the determination of authorship will depend on the facts of the specific case.

Works by Multiple Authors: Rules for Joint Authorship and Collaborations

Joint authorship exists when two or more persons create a copyrighted work. In situations of this sort, legislation in most countries grants each contributor an undivided share of the copyright in the work. The requirements for joint authorship vary across nations. The Berne Convention recognizes that joint authorship exists but does not specify the requirements for joint authorship, thus allowing for the variance among nations.

Countries in continental Europe typically stipulate that joint authorship does not require that each author contribute the same amount to the work, but require that each author’s contribution displays the minimal amount of creativity or originality necessary in the jurisdiction to merit copyright protection in its own right. Applying this approach, a Dutch Supreme Court decision Kluwer v. Lamoth granted a stylist co-authorship status for creatively rearranging needleworks for a photograph.

The second common requirement for joint authorship is that each author’s contribution cannot be separated and commercially exploited independently of the work as a whole. For instance, Japanese legislation defines joint works as works that are “created by two or more persons in which the contribution of each person cannot be separately exploited.” If this is not true – for instance, when one author contributes the music and another the lyrics for a song – each contributor is typically given an independent copyright in his or her contribution.

Derivative Works and Transformations

Derivative works are modifications of preexisting works. Examples include abridgments and motion-picture adaptations of novels. The Berne Convention does not explicitly refer to derivative works, but rather lists a number of works based on other copyrighted works for which member countries must provide copyright protection. Specifically, the Berne Convention Article 2, Section 3 states that

“Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright of the original work.”

This provision is incorporated into the TRIPS agreement. Although these provisions guarantee the protection of specific types of derivative works, they do not clarify what level of distinction is necessary from the original copyrighted work for a derivative work to merit copyright protection in its own right. Often it is not clear whether obtaining a copyright in a derivative work requires a higher level of originality than obtaining a copyright in a completely new work. In any case, a copyright in a derivative work extends only to the new material contributed by the author of the derivative and not also to the preexisting material. If the original work is still protected by copyright, they then author of the derivative work must obtain the permission of the owner of the copyright in the original.

Collective Works and Compilations

Compilations constitute another instance of a situation in which a copyright may be obtained through the use and manipulation of preexisting works. Compilations are works formed by assembling, selecting, or rearranging preexisting works such that the result constitutes an original work of the author. Collective works represent a specific type of compilation in which a number of separate and independent contributions are assembled into one work. A collective work is a work by two or more authors but is not cohesive enough to qualify as a joint work. The Berne Convention only requires the protection of collective works.

“Collections of literary or artistic works such as encyclopedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.” Article 2, Section 5.

The TRIPS Agreement extends copyright protection to all compilations:

“Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.” Article 10, Section 2.

Employees and Works for Hire

Employees are often hired to create creative literary or artistic works, resulting in questions of authorship rights. Civil law countries impose as a default the rule that the authorship of a work created in the scope of employment vests in the employee, not the employer. This requires that employers contract with employees to obtain the copyrights to the creative works. For instance, the French Intellectual Property Code stipulates that copyright vests in the work’s actual author and not his employer. (This is the provision by default; rights ownership of some categories of work, such as software, are immediately assigned to the employer.) On the other hand, some countries, including Germany, imply into the employee-employer relationship an assignment of copyright from the employee to the employer.

Common-law countries, such as the United States, Canada, and Great Britain, set as a default rule that the copyrights to works created within the scope of employment vest in the employer and not the employee. For instance, Canadian copyright law states that if a work is created within the scope of employment, “the person by whom the author was employed shall, in the absence of agreement to the contrary, be the first owner of the copyright.” Under the British Copyright, Designs and Patents Act of 1988, if a copyrighted work is made by an employee in the course of that employment, the copyright is automatically owned by the employer as a "Work for Hire."

Civil Servants, Researchers and Professors

Traditionally there has been one category of employees exempt from the “work for hire” doctrine: academics (including teachers and sometimes researchers).

In some countries, works made in the scope of the employment of civil servants are also excluded from the “work for hire” doctrine, because they are denied copyright protection altogether. In other countries, this is not true. For instance, copyright law in the Czech Republic contains a presumption that a work created by a civil servant is a work for hire and the copyright and authorship rights are granted to the employer.

Back to the case study

Nadia (the librarian) should help Angela (the professor) understand authorship questions in the set of materials she has gathered by asking a series of questions:

· Is the arrangement of pre-existing material in an original way considered a creative work?

· Does the summary of an article constitute a new work?

· Who will be the copyright holder of the new work? · Do the answers to these questions affect Angela’s duty to obtain permission to reproduce and adapt preexisting works.

Assignment and discussion questions

Round 1 questions

1. Multiple authorship

Information technologies make it easier to edit and remix others’ works, but not all modifications are substantial enough to create new original works. Discuss the effects of information technologies on the nature of authorship, using the example of Wikipedia.

2. Research for the next Public Domain Day

What is the copyright term in your country? List some of the authors whose work will fall in the public domain in your country on January 1 of the coming year.

Round 2 questions

1. Comment on the answers of your colleagues.

2. Search for more works that will enrich the public domain next year in your country.

Sources

American Society of Composers, ASCAP COPYRIGHT LAW SYMPOSIUM 173-206 (Columbia University Press ed., 1991).

Bruce Keller & Jeffery Cunard, COPYRIGHT LAW (Practising Law Institute ed., 2001).

Cornell University Law School, Legal Infromation Institute, Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971) (Dec. 2, 2008), http://www.law.cornell.edu/treaties/berne/overview.html.

Crash Course on Copyrights (Dec. 2, 2008), http://www.iusmentis.com/copyright/crashcourse/protection/.

World Intellectual Property Organization (Dec. 2, 2008), http://www.wipo.int/portal/index.html.en.