Chapter 3: Chapter 2: General Introduction to Copyright Law

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Status: Finished  |  Genre: Non-Fiction  |  House: Booksie Classic

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Chapter 2: General Introduction to Copyright Law

Introduction

The U.S. Constitution gives 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.”[i] Congress exercised this right in passing the Copyright Act of 1790 which was signed into law by President George Washington on May 31, 1790. The Act was brief; it fit on a half page of a newspaper.[ii] It provided citizens of the United States copyright protection for the maps, charts, and books they authored for a period of 14 years and allowed copyright protection to be extended for an additional 14-year period. The Copyright Act has been amended numerous times in the intervening years and grown in both complexity and size. The current version of the Act[iii] as of this writing is 266 pages not counting 12 appendices.

Although the law has grown in complexity since the first Copyright Act, the core concepts relating to copyright are still relatively simple to understand. In this chapter, we will examine the essential elements of the law and the specific types of intellectual property it is intended to protect.

Subject Matter of Copyright

The subject matter  covered by the law of copyright is rather broad and includes “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”[iv] Works of authorship include the following categories: [v]

•literary works ;

•musical works , including any accompanying words;

•dramatic works , including any accompanying music;

•pantomimes  and choreographic works ;

•pictorial, graphic, and sculptural works ;

•motion pictures  and other audiovisual works ;

•sound recordings ; and

•architectural works .

Copyright protection  attaches to original works of authorship fixed in a permanent medium. Note that an original work of authorship is not protected as soon as it is created; rather protection attaches when it is fixed onto a permanent medium so that it can be reproduced and perceived by others at a later time. It is not the act of creation but rather the act of saving or archiving one’s creation in a tangible medium that grants copyright protection to the creator. For example, if a poet constructs a new poem and speaks it aloud, no copyright attaches to this new creation. Copyright attaches only when the work is fixed in an existing or yet to be invented “tangible medium of expression” that allows it to be reproduced and perceived by others later. Writing the poem on paper with a pen or pencil will suffice, as would recording a reading of the poem on tape or in digital form saved as an audio or video file on a computer, compact disk, DVD or some future medium of storage not yet in existence. Likewise, a new dance that is created by a choreographer is not copyrighted until it is “saved” in some form such as by being videotaped or by the choreographer writing down the steps in the dance on paper or some other permanent form through which the dance steps could later be communicated by others. Thus, a photographer who snaps a photograph automatically obtains a copyright to it when the image is captured on film or saved in digital form to the camera’s internal memory, or in an external SD card or other removable storage. And a writer’s words are copyrighted as soon as they are transferred to paper by a pen or other writing implement, or saved onto a computer’s hard disk or removable storage (e.g., burned onto a CD or DVD or saved onto a USB thumb drive or other removable storage media).

Exclusive Rights in Copyrighted Works

The owner of a copyright has the exclusive right  to do (and to authorize others to do) all of the following with regard to the work protected by the copyright:

(1) To reproduce the copyrighted work  in copies or phonorecords;

(2) To prepare derivative works  based upon the copyrighted work;

(3) To distribute copies  or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly ;

(5) In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copy-righted work publicly ; and

(6) In the case of sound recordings, to perform the copyrighted work publicly  by means of a digital audio transmission.[vi]

The exclusive nature of the enumerated rights  means that no one other than the owner of a copyright (and those acting with his or her consent) may copy, distribute, publicly display, publicly perform or create derivative works based on the copyrighted work. Unauthorized use of copyrighted materials can lead to civil and criminal sanctions that will be discussed later in this chapter. It is important to note that civil and criminal copyright infringement  can occur even when unauthorized use of copyrighted work is made that does not bring any material benefit to the copyright infringer. Thus, while making unauthorized copies of a copyrighted book, music CD or of a video DVD for sale clearly involve both criminal and civil violations of copyright law, so does copying a rented movie to keep for personal use, copying an audio book borrowed from the library, or burning a CD of one’s favorite music to give to a friend. By purchasing a legal copy of a copyrighted work such as a book, magazine, or legally downloaded MP3 music files, the user generally obtains the right to use those files for personal use only, and not to copy or redistribute them. Thus you may watch a rented or purchased movie at home, and show it to guests in your home for non-commercial purposes (e.g., without charging them a fee). However, you cannot show the movie in a setting that is open to the public (e.g., on a projection system in your back yard where everyone is welcomed to view the movie). Moreover, the same is true for copyrighted work that is non-commercial in nature. The performance of an amateur rock band in someone’s garage cannot be taped without the band’s consent; and if consent is given to tape the performance, copies of the performance cannot be made without the express consent of the band, nor can the taped performance be posted online, broadcast or played at a public venue without the band’s consent. And the same is true for a dance routine, short story, poem, drawing, painting, sculpture or any other subject matter protected by copyright.

 

[i] U.S. Const. Art I §8.

[ii] The Columbian Sentinel, July 17 1790 at 1. A digitized version of the newspaper page can be viewed at http://www.earlyamerica.com/earlyamerica/firsts/copyright/centinel.html (last visited August 11, 2009).

[iii] The current Act is contained in Title 17 of the U.S. Code and includes amendments through 2006.

[iv] 17 U.S.C. §102(a) (2006).

[v] Id.

[vi] 17 U.S.C. §106 (2006).


Submitted: June 24, 2020

© Copyright 2021 VictorDLopez. All rights reserved.

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