1. law, govt and politics
2. legal issues
3. civil law
4. copyright

LIS654 lecture
copyright 1
Thomas Krichel
2011-11-10
outlook
• This mainly follows the book by Hirtle et al.
• Here I am working on chapters 1 to 3 of this
book.
• I will be covering selected content of the other
chapters next week.
– implications of copyright (what are the rights of
the copyright holder)
– exemptions to these implications
• in general
• to library and archives in particular
structure
•
•
•
•
basics of copyright (as relevant here)
copyright history
what can be copyrighted
how long does it last (complicated)
basis
• US Constitution, Article I, Section 8 authorizes
Congress to enact laws “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.”
• The current use of copyright laws is a travesty
of these objectives.
basic conditions
• The work or subject matter must fall
within a category of material protected
by copyright.
• Copyright must subsist in that particular
work or subject matter, having regard to
its originality, authorship, and fixity.
• Copyright must not have expired.
copyright vs. possession
• Purchasing a copy of a copyrighted work does
not create a transfer of copyright.
• This even holds when the object is using, like
say a painting. Copyright transfer would have
to be negotiated explicitly in writing at the
transfer of ownership.
public domain (henceforth: PD)
• Works that are not affected by copyright are
said to be in the public domain.
• Works automatically enter the public domain
after a certain time.
• But copyright holders appear to be constantly
able to extend the terms.
copyright is for expressions
• Ideas and facts can not be copyrighted.
• Expressions of ideas and facts can be
copyrighted.
• If an expression is simple, copying the
expression is not likely to be in violation of any
copyright owner’s rights.
copyright governance
• US copyright is governed by the Copyright Act
of 1976 as amended and incorporated in the
United States Code as Title 17.
• We use USC 17 in the following to refer to this.
• There are unfortunately other sources of
copyright governance
– Common law
– International treatise
common law
• Works that are not protected by federal
copyright laws may still be protected by what
is often called “common law copyright.”
• Common law copyright contains
– state-based law
– from judicial decisions.
• It can vary from state to state.
• Implications of common law are minor.
start of copyright
• 1709: The first copyright act, the “Statute of
Anne,” passes in England. It grants copyright
protection to the authors of books.
• 1787: U.S. Constitution in Article 1, Section 8,
authorizes Congress to pass copyright and
patent legislation.
first steps in specific legislation
• 1790: First federal copyright statute passes.
Protection is limited to maps, charts, and
books. Duration is for 14 years, with the
possibility of a 14-year renewal term if the
author is still living.
• 1831: Term extends to 28 years with the
possibility of a 14-year extension. Protection
extends to published music, which is
protected against reproduction, but not
performance.
continuous extensions
• 1856: Copyright protection for dramatic public
performances is added.
• 1865: Photographs and negatives become
eligible for copyright protection.
• 1870: Protection for dramatic works,
pantomimes, paintings, drawings, and
sculpture is added to the Copyright Act.
international dimension starts
• 1886: Formulation of the Berne Convention
for the Protection of Literary and Artistic
Works.
• 1891: First U.S. copyright protection for
foreign works. Protection for performed music
is added.
1909 copyright act
• 1909: Copyright act makes major changes. It
broadens the definition of works of authorship
and extends terms to 28 years with the
possibility of a 28-year renewal.
• 1912: Movies are afforded copyright
protection.
after the war
• 1955: United States becomes a signatory to
the Universal Copyright Convention (UCC),
affording U.S. authors expanded protection
abroad.
• 1972: Sound recordings receive federal
copyright protection.
main copyright act
• 1976: Copyright Act of 1976, (went into effect
in 1978. It makes a number of major revisions
to U.S. copyright, including:
– granting federal protection to unpublished items
– calculating copyright duration based on life of the
author +50 years
– codifying the judicial doctrine of fair use
– and adding specific exemptions for libraries and
archives in Section 108.
Berne convention & renewals
• 1988: The United States joins the Berne
Convention. This leads to the eventual
dismantling of all formal requirements (notice,
registration, renewal) for copyright.
• 1990: Works of architecture receive federal
copyright protection.
• 1992: Copyright renewal is made automatic.
All works published from 1964 to1978 are
given an automatic 75-year term.
extension and digital adoption
• 1998 Sonny Bono Copyright Extension Act
extends almost all copyrights by another 20
years.
• 1998 Digital Millennium Copyright Act gives
online service providers some important safe
harbors from copyright-infringement suits.
“stuff” that can be copyrighted
• The US copyright act sets out what can be
copyrighted.
• But it does not furnish an exhaustive list.
• It gives examples in 17 USC § 102.
• | we go through some of these|
literary works
• This covers non-dramatic textual works
– web sites
– emails
– toilet wall engravings
– speeches
– advertisements
musical works
• The copyright act gives no definition.
• It covers new compositions and arrangements
of older ones.
• The performance generate a separate
copyright.
• The owner of a copyrighted music work has an
additional privilege to make or authorize the
first recording.
dramatic works, including
accompanying music
• These are literary works intended to be
performed.
• As with musical works, the performance may
have a separate copyright attached to it.
pantomimes and choreographic works
• Simple dance steps can not be copyrighted.
• The works will have to be written out in some
notation in order to achieve tangible form.
pictorial, graphic, sculptural work
• § 101 of US Copyright Act lists those as
– works of fine graphic and applied art
– photographs
– print and art reproductions
– maps, charts globes and other cartographic works
– diagrams models and technical drawings
– architectural works
no copyright in useful articles
• Such things don’t usually get copyright
protection.
• Copyright can protect artistic aspect of useful
articles of these aspect can be separately
identified.
• This is an important grey area.
audiovisual works
• “consist of a series of images which are
intrinsically related intended to be shown by
the use of machines …”
• Motion picture are a specific type.
sound recordings
• These enjoy federal copyright protection since
1972.
• They are “works that result from the fixation
of a series of musical, spoken or other sounds
…”
• This excludes the sound of an audiovisual
work.
• Making soundalike recording is not an
infringement of sound recording copyright.
architectural works
• These were granted protection by Congress in
1990.
• It only applies to buildings built after 1990 or
build before 2002 using plans that were
unpublished before 1990.
• Copyright holder can not prevent photgraphs
of the building.
government works
• Works “prepared by an officer or employee of
the United States Government as part of that
person’s official duties” are generally excluded
from copyright.
• This means the Federal government.
• Edicts of all level of government are not
protected.
• All publications are still protected abroad.
prerequisites for protection
• To be protected works need:
– exit in tangible form
– be works of authorship
– be original
– meet requirements regarding the nationality of
the author
• | we address these in turn |
tangible form
• Copyright arises only of the work in fixed in a
tangible medium of expression.
• It is not necessarily that can be humanly
perceptible, merely that it can be perceived,
reproduced, or otherwise communicated.
• Improvised music, dance or speech is not
protected by federal law but may be by state
common law.
be a work of authorship
• The author of the work has to be human.
• This excludes works by
– nature
– computer programs
– supernatural beings
• Compilations of works supposed to be
authored by supernatural beings can be
copyrighted.
originality
• 17 U.S.C. § 102(a) “original works of
authorship”.
• Traditionally the threshold is verrry low.
• But pure “sweat of the brow” is not eligible,
since Feist vs Rural Telephone.
• In other countries the threshold tends to be
lower.
databases
• Databases can be protected as compilations
“formed by the collection and assembling of
pre-existing materials or of data that are
selected, coordinated or arranged in such a
way that the resulting work as a whole
constitutes an original work of authorship.”
[17 U.S.C. §101]
authorship
• For unpublished works, they are covered
regardless of nationality of author.
• Published |+| works will be given protection
of any of the following holds true
– author is a citizen or resident of the USA
– work is first published in the USA or a country the
USA has an agreement (e.g. Berne convention)
with
– the author is a citizen of a treaty country.
publication status
• A work is published when the copyright owner
authorized the distribution of copies through
sale, rental, lease or lending.
• The offer must be made to the general public.
• Public performance is not publication.
duration of copyright
• It first depends on the type of work
– Unpublished works
– Works first published in the United States
– Works first published abroad
– Sound recordings
– Architectural works
• The “normal term” is live of the author + 70
years or 95 years since publication if author is
corporate.
unpublished works
• Here we deal with works that we unpublished
and not register with the copyright office
before 1978.
• These are the rules are for unpublished works
used in the USA, regardless of nationality of
author.
terms for unpublished works
• Unpublished works: Life of the author +70
years
• Exception: Unpublished works created before
1978 that were published after 1977 but
before 2003: Life of the author +70 years or 31
December 2047, whichever is greater.
• Unpublished anonymous and pseudonymous
works, works made for hire (corporate
authorship), or unknown death date of author
: 120 years from date of creation.
public domain published works
• published before 1923: PD
• published 1923 through 1977 without a
copyright notice: PD
• published 1978 to 1 March 1989 without
notice, and without subsequent
registration: PD
• published 1923 through 1963 with notice
but copyright was not renewed: PD
works published in the US, 2
• published 1923 through 1963 with notice and
the copyright was renewed: 95 years after
publication date
• published 1964 through 1977 with notice: 95
years after publication date
normal term works in the US
• published 1978 to 1 March 1989 without
notice, but with subsequent registration:
“normal term”
• published 1978 to 1 March 1989 with notice:
“normal term”
• After 1 March 1989: “normal term”
background to this
• Before 1976 the copyright period was fixed.
• The 1909 act set this to 28 years, renewable
another 28 years by notice.
• The Sony Bono of 1998 copyright extension
act extended it to 75 years, but left the works
published before 1923 intact.
copyright notice
• Between 1923 and 1998 the law required the
work had to carry a copyright notice.
• If the notice is not there the work entered
public domain.
registration
• Registration of copyright was mandatory until
the Copyright Renewal Act in 1992 made it
optional.
• This act did not touch works that were already
in the second period, i.e. that had been
published before 1964.
the 1978 shed
• A published with notice and renewed. The
duration of the copyright will depend on the
date of publication:
– Prior to 1978: 95 years from publication
– Since 1978: normal term
published works
• For published works, the normal term is 70
years after death of author, or, in the case of
corporate authorship, 95 years after
publication.
• This the normal term.
published foreign works
• This clearly includes the following
– Works by non-U.S. citizens published only
outside the United States
– Works by U.S. citizens living outside the
United States, published only outside the
United States
applicability of US rules
• A work by a non-US author published both
inside and outside the US will be applied US
rules if either of the following two apply:
– work was published with a delay of less than 30
days
– the copyright was registered in the US
• A work by a US author published in the USA or
abroad will be considered according to USA
rules.
works first published abroad in PD
• published before 1923: PD
• published 1923 -- 1977 without US
formalities and in the PD in its home as
of January 1996: PD
95 years terms
• published abroad, no US formalities and not in
the PD abroad in 1996: 95 years
• published 1923 -- 1977 with notice, &
renewal : 95 years
• published 1923 -- 1977 abroad only, without
compliance with U.S. formalities or US
republication , and not in the public domain in
its home country as of 1 January 1996: 95
years after date of publication
foreign works after 1978
• If published without copyright notice, and in
the public domain in its home country as of 1
January 1996: PD
• If published either with or without copyright
notice, and not in the public domain in its
home country as of 1 January 1996: normal
term.
sound recording copyright
• Recording made before 1972 are only
protected by common law copyright, usually
antipiracy and anti-bootlegging legislation.
• Recording made 1972 to 1998 without notice,
are PD.
• With notice 95 years before 1978, normal
term after 1978.
• Foreign recording get 95 years if not in PD
abroad in 1996.
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