Intellectual Property Law:
Copyrights
Patent
Trademark
Trade Secret
Author's right
Related rights
Moral rights
Geographical indication.
Copyright initially was conceived as a way for government to restrict printing; the contemporary intent of copyright is to promote the creation of new works by giving authors control of and profit from them. Copyrights are said to be territorial, which means that they do not extend beyond the territory of a specific state unless that state is a party to an international agreement. Today, however, this is less relevant since most countries are parties to at least one such agreement. While many aspects of national copyright laws have been standardized through international copyright agreements, copyright laws of most countries have some unique features. Typically, the duration of copyright is the whole life of the creator plus fifty to a hundred years from the creator's death, or a finite period for anonymous or corporate creations. Some jurisdictions have required formalities to establishing copyright, but most recognize copyright in any completed work, without formal registration. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.
Justification
The usual justification of copyright is to enable creators of intellectual wealth to financially support themselves and give them a motive to continue publishing their creations. Without copyright, photographers, authors, artists, and journalists or anyone else who creates non-material economic wealth would have to find alternative means (other than licensing) to support themselves, like for example publishing a small subset of their creations and then requesting payment before they published more (also see the street performer protocol). In a capitalist economic system, food and house rent cost money so photographers, film directors, authors, painters, poets and other intellectual creators would have to find other jobs to support themselves if they couldn't get compensated for their intellectual work. With copyright in place, the author of a book or the photographer of a photograph can charge users who want to get a copy of their creations and thus support themselves. Before copyright, authors generally requested a large-sum one-off payment from the printer of their book before publishing it. With copyright in place, and assuming efficient enforcement, authors, photographers and other intellectual workers can publish their creations immediately and wait for licensing requests from people who want to use or re-publish their works (an example of this model for the funding of photography is Corbis, Getty Images, Alamy and other stock photography image banks).
Anti-copyright critics claim copyright law protects corporate interests while criminalizing legitimate use, while proponents argue the law is fair and just, protecting the interest of the creator.
Justification[edit]
Main article: Philosophy of copyright
The usual justification of copyright is to enable creators of intellectual wealth to financially support themselves and give them a motive to continue publishing their creations. Without copyright, photographers, authors, artists, and journalists or anyone else who creates non-material economic wealth would have to find alternative means (other than licensing) to support themselves, like for example publishing a small subset of their creations and then requesting payment before they published more (also see the street performer protocol). In acapitalist economic system, food and house rent cost money so photographers, film directors, authors, painters, poets and other intellectual creators would have to find other jobs to support themselves if they couldn't get compensated for their intellectual work. With copyright in place, the author of a book or the photographer of a photograph can charge users who want to get a copy of their creations and thus support themselves. Before copyright, authors generally requested a large-sum one-off payment from the printer of their book before publishing it. With copyright in place, and assuming efficient enforcement, authors, photographers and other intellectual workers can publish their creations immediately and wait for licensing requests from people who want to use or re-publish their works (an example of this model for the funding of photography is Corbis, Getty Images, Alamy and other stock photography image banks).[citation needed]
Anti-copyright critics claim copyright law protects corporate interests while criminalizing legitimate use, while proponents argue the law is fair and just, protecting the interest of the creator.
History
Copyright came about with the invention of the printing press and with wider public literacy. As a legal concept, its origins in Britain were from a reaction to printers' monopolies at the beginning of the 18th century. Charles II of England was concerned by the unregulated copying of books and passed the Licensing of the Press Act 1662 by Act of Parliament,which established a register of licensed books and required a copy to be deposited with the Stationers' Company, essentially continuing the licensing of material that had long been in effect.
The British Statute of Anne (1710) further alluded to individual rights of the artist. It began, "Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing... Books, and other Writings, without the Consent of the Authors... to their very great Detriment, and too often to the Ruin of them and their Families:" A right to benefit financially from the work is articulated, and court rulings and legislation have recognized a right to control the work, such as ensuring that the integrity of it is preserved. An irrevocable right to be recognized as the work's creator appears in some countries' copyright laws.
The Statute of Anne was the first real copyright act, and gave the publishers rights for a fixed period, after which the copyright expired. Copyright has grown from a legal concept regulating copying rights in the publishing of books and maps to one with a significant effect on nearly every modern industry, covering such items as sound recordings, films, photographs, software, and architectural works.
Prior to the passage of the United States Constitution, several States passed their own various copyright laws between 1783 and 1787, the first state being Connecticut.Contemporary scholars and patriots such as Noah Webster, John Trumbull, and Joel Barlow were instrumental in securing the passage of these statutes.
The Copyright Clause of the United States Constitution (1787) authorized copyright legislation: "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." That is, by guaranteeing them a period of time in which they alone could profit from their works, they would be enabled and encouraged to invest the time required to create them, and this would be good for society as a whole. A right to profit from the work has been the philosophical underpinning for much legislation extending the duration of copyright, to the life of the creator and beyond, to his heirs.
Thomas Jefferson, who strongly advocated the ability of the public to share and build upon the works of others, proposed as part of the Bill of Rights that a short timespan be protected:
- Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding – years but for no longer term and no other purpose.
The 1886 Berne Convention first established recognition of copyrights among sovereign nations, rather than merely bilaterally. Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation: an author need not "register" or "apply for" a copyright in countries adhering to the Berne Convention. As soon as a work is "fixed", that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright expires. The Berne Convention also resulted in foreign authors being treated equivalently to domestic authors, in any country signed onto the Convention. The UK signed the Berne Convention in 1887 but did not implement large parts of it until 100 years later with the passage of the Copyright, Designs and Patents Act of 1988. The United States did not sign the Berne Convention until 1989.
The regulations of the Berne Convention are incorporated into the World Trade Organization's TRIPS agreement (1995), thus giving the Berne Convention effectively near-global application. The 2002 WIPO Copyright Treaty enacted greater restrictions on the use of technology to copy works in the nations that ratified it.
Scope
Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works". Specifics vary by jurisdiction, but these can include poems, theses, plays and other literary works, motion pictures, choreography, musical compositions, sound recordings,paintings, drawings, sculptures, photographs, computer software, radio and television broadcasts, and industrial designs. Graphic designs and industrial designs may have separate or overlapping laws applied to them in some jurisdictions.
Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.For example, the copyright to a Mickey Mouse cartoon restricts others from making copies of the cartoon or creating derivative works based on Disney's particular anthropomorphic mouse, but does not prohibit the creation of other works about anthropomorphic mice in general, so long as they are different enough to not be judged copies of Disney's. Note additionally that Mickey Mouse is not copyrighted because characters cannot be copyrighted; rather, Steamboat Willie is copyrighted and Mickey Mouse, as a character in that copyrighted work, is afforded protection. In many jurisdictions, copyright law makes exceptions to these restrictions when the work is copied for the purpose of commentary or other related uses (See fair use, fair dealing). Meanwhile, other laws may impose additional restrictions that copyright does not – such as trademarks and patents.
Obtaining and enforcing copyright
Typically, a work must meet minimal standards of originality in order to qualify for copyright, and the copyright expires after a set period of time (some jurisdictions may allow this to be extended). Different countries impose different tests, although generally the requirements are low; in the United Kingdom there has to be some 'skill, labour and judgment' that has gone into it. In Australia and the United Kingdom it has been held that a single word is insufficient to comprise a copyright work. However, single words or a short string of words can sometimes be registered as a trademark instead.
Copyright law recognises the right of an author based on whether the work actually is an original creation, rather than based on whether it is unique; two authors may own copyright on two substantially identical works, if it is determined that the duplication was coincidental, and neither was copied from the other.
In all countries where the Berne Convention standards apply, copyright is automatic, and need not be obtained through official registration with any government office. Once an idea has been reduced to tangible form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape, or a computer file), the copyright holder is entitled to enforce his or her exclusive rights.However, while registration isn't needed to exercise copyright, in jurisdictions where the laws provide for registration, it serves as prima facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney's fees. (In the USA, registering after an infringement only enables one to receive actual damages and lost profits.)
The original holder of the copyright may be the employer of the author rather than the author himself, if the work is a "work for hire". For example, in English law the Copyright, Designs and Patents Act 1988 provides that if a copyrighted work is made by an employee in the course of that employment, the copyright is automatically owned by the employer which would be a "Work for Hire."
Transfer and licensing, and assignment
A copyright, or aspects of it, may be assigned or transferred from one party to another. For example, a musician who records an album will often sign an agreement with a record company in which the musician agrees to transfer all copyright in the recordings in exchange for royalties and other considerations. The creator (and original copyright holder) benefits, or expects to, from production and marketing capabilities far beyond those of the author. In the digital age of music, music may be copied and distributed at minimal cost through the Internet, however the record industry attempts to provide promotion and marketing for the artist and his or her work so it can reach a much larger audience. A copyright holder need not transfer all rights completely, though many publishers will insist. Some of the rights may be transferred, or else the copyright holder may grant another party a non-exclusive license to copy and/or distribute the work in a particular region or for a specified period of time.
Copyright may also be licensed. Some jurisdictions may provide that certain classes of copyrighted works be made available under a prescribed statutory license (e.g. musical works in the United States used for radio broadcast or performance). This is also called a compulsory license, because under this scheme, anyone who wishes to copy a covered work does not need the permission of the copyright holder, but instead merely files the proper notice and pays a set fee established by statute (or by an agency decision under statutory guidance) for every copy made. Failure to follow the proper procedures would place the copier at risk of an infringement suit. Because of the difficulty of following every individual work, copyright collectives or collecting societies and performing rights organizations (such as ASCAP, BMI, and SESAC) have been formed to collect royalties for hundreds (thousands and more) works at once. Though this market solution bypasses the statutory license, the availability of the statutory fee still helps dictate the price per work collective rights organizations charge, driving it down to what avoidance of procedural hassle would justify.
Creative Commons
Founded in 2001, Creative Commons (CC) is a non-profit organization which aims to facilitate the legal sharing of creative works. To this end the organization provides a number of copyright license options to the public, free of charge. These licenses allow copyright holders to define conditions under which others may use a work and to specify what types of use are acceptable.Terms of use have traditionally been negotiated on an individual basis between copyright holder and potential licensee. Therefore, a general CC license outlining which rights the copyright holder is willing to waive enables the general public to use such works more freely. Six general types of CC licenses are available.
Public domain
Copyright, like other intellectual property rights, is subject to a statutorily determined term. Once the term of a copyright has expired, the formerly copyrighted work enters the public domain and may be freely used or exploited by anyone. Courts in the United States and the United Kingdom have rejected the doctrine of a common law copyright. Public domain works should not be confused with works that are publicly available. Works posted in the internet for example, are publicly available, but are not generally in the public domain. Copying such works may therefore violate the author's copyright.
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