LIS654 lecture copyright 1 Thomas Krichel 2011-11-15.

LIS654 lecture copyright 1

Thomas Krichel2011-11-15

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 – extracts from judicial decisions.

• It can vary from state to state.• Implications of common law are minor.

international treatise

• The most important here is the Berne convention.

• The US were a late signatory, because traditionally copied things made abroad.

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: Copyright protection for dramatic works, pantomimes, paintings, drawings, and sculpture is added.

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 to 1978 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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