Copyright is the branch of law that provides property rights in expression, and it is the primary legal regime for the cultural and information industries, including print publishing, music, film, television, radio, theater, computer software, photography, and fine art. Copyright only protects expression, not the ideas being expressed. Ideas are the thoughts inside our heads and expression is the way we communicate those thoughts to others. A book may include many facts and ideas. The author then uses specific expression, including words or pictures, to communicate those facts and ideas. A second author (or artist or musician) can use any of the facts or ideas contained in the book but would need permission to copy the first author’s expression.
Only original expression can be protected by copyright. Under international treaties, copyright protection begins the moment the expression is fixed (stored) in a tangible medium, which might include words on paper, paint on canvas, music on tape, or digital bits stored in a computer file. The copyright owner is granted control over the reproduction, distribution, public performance, public communication, and public display of the work as well as control over any derivative works that are based on the copyrighted expression. Derivative works include translations and adaptations, such as when a written story is made into a film.
Origins and Justifications for Copyright
Though copyright is entrenched in modern legal systems, it is a law of recent origin. For most of human history, anyone could copy someone else’s expression without asking for permission. When the printing press was introduced to western Europe in the fifteenth century, many cities granted special “printing privileges” to encourage the development of this new technology. Printers were granted exclusive rights to print certain books in a given territory. This encouraged printers to invest in developing their fonts and presses, and it also gave the authorities leverage in enforcing censorship against heretical and seditious books. By the eighteenth century, many printers wielded monopoly power. In 1710, England passed the first copyright statute to break the printers’ monopoly. For the first time, rights were specifically granted to the author rather than the printer. As more nations passed their own copyright laws, two rationales emerged to shape those laws: economic incentives and moral rights.
The economic rationale for copyright law is based on two related concepts, “public goods,” and “economies of scale.” A public good is an economic term referring to situations where a resource can be consumed without depleting the resource and it is difficult to exclude individuals who don’t pay for the use. For example, an unlimited number of individuals can sing or listen to a song without “using it up.” Moreover, it is very difficult to exclude nonpayers from listening to the song. Few investors would be willing to invest in a product where there is no mechanism for recouping the investment and where it is easy for consumers to use the product or service without paying. Copyright law creates a legal right to exclude nonpayers in hopes of encouraging investment in the production of new expression.
Economies of scale create a similar problem. As communication technology has advanced, the cost to reproduce and distribute expression has declined dramatically. Yet the cost to create the expression in the first place can still be quite high. For example, some movies cost more than US$200 million to create, but a DVD copy of the movie can be made for less than US$1. Without copyright protection, a competitor could purchase a DVD and then make and sell copies far more cheaply than the producer who had to spend US$200 million to make the original film.
The economic purpose of copyright is to give the creator an incentive to invest time and money in producing the expression. Copyright creates a market for content and is the legal foundation of modern mass media including the film, music, television, book publishing, computer software, and video game industries. Ultimately, society benefits because more works are produced. However, economists acknowledge that there is a tradeoff in that while more works are created, those works are also more expensive than they would be without copyright, which limits society’s access. In recent years, alternatives to the market-based copyright system have been introduced. Open source software is written by individuals contributing to a project without claiming copyright. Nonprofit organizations like Creative Commons have established copyright licenses and websites to encourage creators to share their expression with very few restrictions, creating a regime for individuals to share their content freely.
In addition to the economic rationale for copyright, many nations’ laws are influenced by the concept of moral rights. From this perspective, the author’s expression is an extension of her personality and therefore personal to her. Moreover, the author invests time and labor in creating the expression. Many argue that the author therefore has a natural right to control how her expression is used. So while the economic rationale for copyright is based on a public policy objective of encouraging creation for the benefit of society, the moral rationale is based on the author’s private right to control her expression.
Moral rights include the right of paternity (attribution) and integrity (the right to prevent mutilation or distortion of the work that would harm the author’s reputation). Moral rights are incorporated into the Berne Convention for the Protection of Literary and Artistic Works but nations can use other “equivalent” rights to comply with the moral rights provisions. For example, the United States does not include moral rights in its copyright statute (except for works of fine art).
International Copyright Treaties
Each nation has its own copyright law which is enforced within its borders. Most nations are signatories to one or more international treaties that set out minimum standards of copyright protection for domestic and foreign works. The most important of these treaties is the Berne Convention, first established in 1886 and amended six times since then. Before the Berne Convention, most nations did not grant copyright protection to foreign works or foreign authors unless agreed to by a bilateral treaty.
The Berne Convention is founded on three fundamental principles. First is the principle of national treatment: foreign works should be granted the same protection as domestic works. Second, there should be no formal requirements before obtaining protection; that is, the work should be protected from the moment it is created. Third, an eligible work should be protected even if it is not protected in its country of origin. As an indication of the increasing importance of copyrighted works in international trade, the number of countries that belong to Berne Convention has grown from 58 in 1970 to 162 in 2006.
In addition to the Berne Convention, the other major copyright treaties include the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the World Intellectual Property Organization’s (WIPO) Copyright Treaty and Performances and Phonograms Treaty. The TRIPS Agreement was negotiated along with the establishment of the World Trade Organization (WTO). Under TRIPS, all WTO member states must adhere to the three basic principles of the Berne Convention even if they are not members of that convention. TRIPS was also significant for adopting WTO enforcement measures which are seen as having much more force than the enforcement measures included in the Berne Convention. The two WIPO copyright treaties were created in 1996 in response to the proliferation of digital communication technologies.
Copyright, Free Speech, and New Technologies
Copyright gives the creator the ability to control how her expression is used and can reduce the public’s access to information and limit free speech. The primary safeguard against the restrictive nature of copyright is the idea/expression dichotomy. Copyright only protects expression – everyone is free to use the ideas, facts, and discoveries that are being expressed. However, many commentators argue there are situations where copying someone’s expression serves important free speech interests. Quotes are often useful as evidence, such as quoting sources in a newspaper article or research paper. There may also be times when the expression is so intertwined with the idea being expressed that it cannot be separated. For example, photographs often capture the essence of an idea in a way words cannot match, such as pictures from wars or natural disasters. Most nations include myriad exceptions and limitations to the copyright owner’s control over her expression. The United States has one of the broadest exceptions, known as “fair use,” which allows limited copying for the purpose of news reporting, research, comment and criticism, and other uses.
Copyright law has changed dramatically as new technologies are invented to create, store, and distribute copyrighted expression. Expression contained in a digital file can be copied endlessly and effortlessly, increasing the disparity between the cost to create content and the cost to copy and distribute that content. This extreme form of economies of scale makes it even more difficult for the creator to recoup her costs without some form of legal protection. The proliferation of consumer recording equipment makes it almost impossible for the copyright owner to prevent infringing copies from being made. The Internet makes this problem even greater. Once a copy is made available online, millions of users can copy the content and distribute it globally. One example of this phenomenon was the proliferation of peer-to-peer (P2P) software between 1999 and 2005. Napster became synonymous with illegal file sharing and billions of infringing copies of MP3 music files have been made and distributed using P2P software.
To reduce the economic losses associated with piracy, the content industries have lobbied for stricter domestic and international laws that increase the penalties for infringement. Moreover, copyright owners have begun to use technological protection measures (TPMs) to prevent users from copying and distributing content without authorization. TPMs are controversial because they prohibit all copying even though most copyright statutes allow some copying in certain circumstances. In addition, TPMs may continue to prohibit access or copying even after the copyright has expired and the expression has fallen into the public domain. The WIPO treaties mandate that each member country pass legal protection for TPMs to prevent users from circumventing the protection measures. The increasing use of TPMs to control access to content has reawakened concerns about the tension between copyright and free speech. But copyright owners argue that without TPMs it will become more and more difficult to enforce their rights. How TPMs are implemented and regulated is one of the most contentious issues facing regulators.
New technologies such as satellite broadcasting and the Internet also have led to more content crossing national borders. This has increased the trend toward harmonization of domestic laws. Copyright owners fear that if copying is legal in one jurisdiction, users all over the world will be able to access that content via the Internet. Some commentators argue that each nation should be free to forge its own copyright law in response to its own domestic information policy objectives. Developing nations in particular often argue that they need increased access to content to stimulate their own domestic economies. It is clear that this conflict over harmonization, like the tension over technological protection measures, will increase for the foreseeable future.
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