Aspects of Copyright

copyright (Photo credit: A. Diez Herrero)

     

     It has become difficult to strike a balance between stimulating innovation and protecting the creator of that innovation since the development of computer technology and the Internet. Intellectual Property laws have always addressed these issues either through patents, trademarks, or copyrights. The Internet has made the dissemination of information fast and pervasive, making protection of creative works equally fast and comprehensive. Although copyright has a meaningful purpose, the explosion of knowledge and information via technology necessitates a careful analysis of the existing laws that govern copyrights. The elements of “fair use,” “teacher exception,” and “work for hire” are often vague. (Samuelson, 2011) The time frame of how long copyrights last and when they become available for the public domain is either too long, or too vague. 

English: Statute of Anne, the first modern copyright law. Español: Estatuto de la Reina Ana. Inglaterra, 1710. Primera ley de copyright conocida en Occidente. Magyar: Anna statútuma, az első modern szerzői jogi törvény. (Photo credit: Wikipedia)

   

     Copyright evolved out of a law that was used to identify authors who might have been subversive, or revolutionaries, that the governments wanted to expose. (Boyle, 2008) In 1710, Britain passed the Statute of Anne -- the first copyright law, passed by government to resolve problems with publishers and booksellers, not authors. (Boyle, 2008) It gave the right to “copy” a book, hence the name, “copyright.”

     As copyrights evolved, they began to protect the artist or creator for a period of time, as established by law. Protection is not all bad; “intellectual property decentralizes the choices about what creative and innovative paths to pursue while retaining the possibility that people will actually get paid.” (Boyle, 2008) Copyright has also served to stimulate creativity and monetarily awarding those who succeed. The starving artist knew that if his work became profitable, he would too. “Having been given the ability to forbid people to copy your invention or your novel, you can make them pay for the privilege of getting access.”(Boyle, 2008)

     One of the difficulties with copyrights today is the growing number of them. (Blanchard, 2010) Before 1978, artists were required to register their creative works with the United States Copyright Office. Those works were copyrighted for a period of 28 years unless renewed. (Boyle, 2008) The term was deemed reasonable enough time for the author to collect financial dividends after which time the work could be renewed, or if not profitable it would fall into the public domain. These works would then be assessable to other artists to use or alter, free of charge. (Blanchard, 2010)

   
     This was the standard until 1987 when copyright law changed. After the Berne Convention, the formalities of applying for a copyright were dropped. The Berne Convention for the Protection of Literary and Artistic Works was an international forum for copyright policy. (World Intellectual Property Organization) Based on the theory that authors have a natural right to their works, the formality of registering a copyright was deemed unnecessary. With the advancement of technology, some people would like to see the formalities returned to the copyright practice. (Samuelson, 2011)

     Today, copyrights are instantly applied as soon as a work is fixed.  (Copyright Law of the United States) This creates a huge number of copyrights being created everyday and launched on the global digital network. Copyrights are “assigned” oftentimes without the authors even knowing they have one. (Kranch, 2009) But this “instant” copyright has valid legal terms, preventing others from using almost any work published on the Internet. 

For those wanting to use material found on the Internet, it becomes difficult to gain permission from copyrighted works, especially if held by corporations or the government. The laws are strict and there is no legal room for “not knowing” a work was under copyright. (Boyle, 2008) Some authors of creative works want to share their products, and do not feel the need to claim a copyright restriction. But this is not often visible to anyone searching the Internet.

Image via CrunchBase

     One innovative approach has been to apply a new form of sharing, or label that displays the rules of sharing. This is called the Creative Commons. (Creative Commons) Under the Creative Commons license, authors and creators can choose the methods of protection and sharing that they need. A Creative Commons licensor has control to retain his copyright “while allowing others to copy, distribute, and make some uses of their – at least non-commercially.” (Creative Commons) Credit for the work is retained and it works globally.  A small emblem is affixed to the work to notify anyone who finds the work on the Internet. The six licenses include the “cc” creative commons mark, with other symbols explaining the details. Works can be licensed to share commercially or not, to be remixed, tweaked, built-upon, redistributed or not. Credit attribution is defined. (Creative Commons)

     One of the problems is that copying works has become easier with the computer and the internet. Expensive to produce the first one, cheap to copy, presents a problem. “Assume that wherever things are cheap to copy and hard to exclude others from, we have a potential collapse of the market” (Boyle, 2008) The Creative Commons is one way to approach this.

Today, a copyright lasts for 75 years after the death of the author or 95 years if it was a “work for hire” and held by a corporation. (World Intellectual Property Organization) The books, films, and art of the 20th century remain under-cover, locked-up, and unavailable. (Boyle, 2008) Also, it is estimated that only 85 percent of all copyright holders renewed their rights after the established 28 years required pre-1978. Add to this “orphan works” that have no name on the copyright; and yet no one can print them or use them. They are lost, in a sense, yet they sit at the Library of Congress. Work produced before 1923 are in the public domain today. But 95 percent of books are untouchable (Boyle, 2008)

     The question becomes how long should a copyright last – to protect the inventor, provide incentive to do the work, and yet not remove it from society?  It may be advisable to have copyright owners renew their works, if they deem them profitable. (Boyle, 2008)Those who have no interest can let them fall into the public domain, where another creative person may build upon it.

     The number of copyrights is accumulating with every new text or creative word fixed on a web page. And although the web is in the public, with many contributors, the works produced are not in the public domain. This creates confusion for many who do not understand copyright law. The “fair use” term can be applied for some copyrighted materials when used by news media, educators, nonprofit organizations, and researchers; but only for specific uses of commentary, parody, news reporting, research, and education. (Copyright Law of the United States) This is not always clear even with the four factors that are addressed: the character of the use, nature of the copyrighted work, the amount used, the effect on the market value of the original work. (Copyright Law of the United States)

      Copyright carries a “strict liability” and therefore, libraries and businesses are not in a position to reproduce work that may still be under copyright; better to wait out the 100 years. (Blanchard, 2010) For example, Google is being sued over copyright violation, even though they had attorneys set up an option for authors to “opt-out” of their digitization books site, “Google Books.”(United States Copyright Office)

     Another complication of the copyright law is the “teacher exception” and “work for hire” which was amended in 1976. (Blanchard, 2010)  As higher education begins to add distance learning, colleges are commissioning faculty to design curriculum, which may or may not belong to the teacher. (Blanchard, 2010) The question of whether the material created is part of the scope of work as an employee of the university or if it falls under the “teacher exception” is not clear. Universities have their own policies that spell out the exact nature of the copyright issues. Although in corporate settings there is not question about ownership of the copyright. As an employee, you work for the company and anything you create is owned by them and falls under the “work for hire” clause. Professors get the same benefits of a corporation, in that they have secured income, resources, and contacts. Yet, they get a better chance of being included in a copyright if not being able to own it outright. Sharing royalties seems to be a more equitable solution. Without the comforts of job security and resources, individuals may not be able to risk the time to create a work worthy of copyright. This creates confusion when determining how much a university contributes to the project in question and whether a teacher can create works off-site and off-hours and own the copyright. Universities do not usually try to “secure the copyrights to faculty writings.” (Blanchard, 2010) But will this be the case when professors create online courses and sell them to other universities?

     Boyle suggests that authors register their works, and get a copyright, much like the patent process, and more like the copyright law prior to 1978. (Boyle, 2008) The copyright could last for 28 years and be renewable if the author desires. Otherwise it would become available to the public. This would cut down on the number of patents and the invisibility of those patents. (Samuelson, 2011) The public would have access to expired patents much earlier than the 100 years now, and works without the copyright sign would be considered in the public domain. The use of the Creative Commons license could further simplify determining when a work on the Internet is available for use. Although copyright protection has benefits for those seeking a livelihood, the length of a copyright should probably more be in line with the length of other intellectual properties, such as patents. There is room for everyone to benefit.

References

Blanchard, J. (2010). The Teacher Exception under the Work for Hire Doctrine; Safeguard of     Academic Freedom or Vehicle for Academic Free Enterprise? Innovative Higher Education , 35.

Boyle, J. (2008). The Public Domain: Enclosing the Commons of the Mind. New Haven: Yale University. Retrieved from: http://thepublicdomain.org/thepublicdomain1.pdf

Copyright Law of the United States. (n.d.). Retrieved from: U.S. Copyright Office.

Creative Commons. (n.d.). Retrieved from: http://creativecommons.org

Kranch, D. A. (2009). Who Owns Online Course Intellectual Property? Quarterly Review of Distance Education , 9 (4). Retrieved from:  http://ehis.ebscohost.com/ehost/pdfviewer/pdfviewer?sid=ec044ef6-b340-428f-8700-40ec38584431%40sessionmgr11&vid=4&hid=1

Samuelson, P. (2011). Legally Speaking Too Many Copyrights. Communications of the ACM .

United States Copyright Office. (n.d.) Legal Issues in Mass Digitization:  A Preliminary Analysis and  Discussion Document from: http://www.copyright.gov/docs/massdigitization/USCOMassDigitization_October2011.pdf

World Intellectual Property Organization. (n.d.). Retrieved 09 08, 2012, from: http://www.wipo.int/copyright/en/ecommerce/ip_survey/chap3.html