Understanding Copyright (Law)

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Welcome to the second post my #CopyrightEdu series (also written in submission as an assignment to my Creative Commons Certification class – which by the way is so exciting!)

So I play the guitar, but not quite like Charmant – he plays, but has invested significant effort into a creative project – a music album! Whatever his motivation for doing this, did you know that at the time creatives like Charmant are making new works of art like music, or maybe poetry, it may not be clear to them that there is such a thing called automatic copyright – and it likely restricts most reuses by others without their permission? What if you knew upfront, would it change the way you create? or the rules under which you might want to copyright your work?

Copyright law, even though it varied from one country to another, just like traffic laws, is very integral to our lives – specifically creating limits on how others may use the original works of creatives. It establishes the basic terms of use that apply automatically to original works, giving the creator or owner of copyright certain exclusive rights while also recognizing that users have certain rights to use these works without the need for a license or permission.

The Basics

Let me walk you through some basics here –

  1. Copyright grants a set of exclusive rights to creators, which means that no one else can copy, distribute, perform, adapt or otherwise use the work in violation of those exclusive rights. Some argue that this gives more incentives to natural creatives to create new works. The person who controls the rights, however, may not always be the author. It is important to understand who controls the exclusive rights granted by copyright in order to understand who has authority to grant permissions to others to reuse the work. A good example, in my world is software developed while at work – By extension of copyright law, work created in the course of your employment may be subject to varying levels of employer ownership based on your country. One may still be the author, but common “work-for-hire” doctrine suggests that one’s employer is the owner of the copyrighted work, and therefore controls any economic rights to it.
  2. Copyright does not protect facts or ideas themselves, only the expression of those facts or ideas. Confusing, right? You may not own the English language, or the letter of the alphabet, but the unique expression you use when you author a poem becomes copyright material. Now is great time to plug one of my favourite copyright movies – Flash of Genius.  The difference between an idea and the expression of that idea can be tricky, but it’s extremely important to understand. While copyright law gives creators control over the expression of an idea, it does not allow the copyright holder to own or exclusively control the idea itself.
  3. Copyright is automatic the moment a work is fixed in a tangible form. Wait, all along? Yes. Most creatives think that copyright only applies once you register with your local copyright office. Well, that’s just to make things official – and perhaps to have legal backing should you need to use it, but generally speaking, you do not have to register your work to become a copyright holder.
  4. Copyright protection lasts a long time. Now this is very interesting – we are talking about years after the copyright holder’s death. 20? no. 40? No. between 50 – 70 years after the death… Isn’t that a most interesting insight? If after this time, you the author were never known or located, your work becomes an “orphan work”.

Watch the 9-minute YouTube video from #FixCopyright for a short history of copyright and its relation to creativity and sharing.

You may wonder – where is the motivation and rationale for copyright? First is Utilitarian – copyright is designed to provide an incentive to creators. The aim is to encourage the creation of new works, because you know your new work will be protected. Secondly, Author’s rights – copyright is intended to ensure attribution for authors and to preserve the integrity of creative works. Some times, these are called moral rights – right to be recognized as the author of the work (known traditionally as the “right of paternity”), and the right to protect the work’s integrity (generally, the right to object to distortion of or the introduction of undesired changes to the work).

Remember, copyright applies to works of original authorship, which means works that are unique and not a copy of someone else’s work. These works must have been fixed in a tangible form – like this blog. Here are some general categories of works:

  • Literary and artistic works
  • Translations, adaptations, arrangements of music and alterations of literary and artistic works
  • Collections of literary and artistic works
  • Applied art and industrial designs and models
  • Computer software

Creators who have copyright get exclusive rights to control certain uses of their works by others, such as the following (note that other rights may exist depending on the country):

  • to make authorized translations of their works
  • to make copies of their works
  • to publicly perform and communicate their works to the public, including via broadcast
  • to make adaptations and arrangements of their works

One of the exclusive rights of copyright is the right to adapt a work. An adaptation (or a derivative work, as it is sometimes called) is a new work based on a pre-existing work.

Copyright owners often grant permission to others to adapt their work. Common examples are translations of a work from one language to another, or adapting a novel into a screenplay for a movie. Adaptations are entitled to their own copyright, but that protection only applies to the new elements that are particular to the adaptation. For example, if the author of a poem gives someone permission to make an adaptation, the person may rearrange stanzas, add new stanzas, and change some of the wording, among other things. Generally, the original author retains all copyright in the elements of the poem that remain in the adaptation, and the person adapting the poem has a copyright in their new contributions to the adapted poem. Creating a derivative work does not eliminate the copyright held by the creator of the pre-existing work.

Now Copyright law does not require permission of the creator for every use of a copyrighted work – some uses are permitted as a matter of copyright policy that balances the sometimes competing interests of the copyright owner and the public. There is a very interesting (and quite literary exciting) component of copyright law – “exceptions and limitations” – the permission for the general public to use copyrighted works, without permission, and without violating the exclusive rights given creators. For most countries, these are expressly specified, and may be flexible. A good example is the ideal of “fair use” or “fair dealing”.

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Now, have you heard of Intellectual property rights (aka IPR)? IPR refers to legal rights that empower creators to restrict you and I from using their works. That makes copyright a kinda of intellectual property, but there are many others. To help understand copyright, it is important to have a basic understanding of at least two other common types of intellectual property rights – Trademarks and Patents. Trademark law generally protects the public from being confused about the source of a good, service, or establishment. MTN or Tuskys hold trademarks over their brands. Trademark law helps producers of goods and services protect their reputation, and it protects the public by giving them a simple way to differentiate between real and fake. Patent law gives inventors a time-limited monopoly to their inventions. Patents typically give inventors the exclusive right to make, have made, use, have used, offer for sale, sell, have sold, or import patentable inventions. Other types of IPR include trade secrets, publicity rights, and moral rights. I like this 3-minute Canadian version of explaining the difference between Trademarks, Patents and Copyrights. (But I like all things canadian).

In my last blog we laboured on the idea that our technology driven world means we can easily create, publish or reuse something online. Well, then what law applies to you online? Moreover, every country has its own copyright laws. Well, over the years there has been extensive global harmonization of copyright laws through treaties and multilateral and bilateral trade agreements. These treaties and agreements establish minimum standards for all participating countries, which then enact or conform their own laws to the agreed-upon limits. This system leaves room for local variation.

One of the most significant international agreements is the Berne Convention for the Protection of Literary and Artistic Works, concluded in 1886. The Berne Convention has since been revised and amended on several occasions. WIPO (the World IP Organisation) serves as administrator of the treaty and its revisions and amendments, and is the depository for official instruments of accession and ratification. Today, more than 176 countries (as of March 2, 2018) have signed the Berne Convention. In addition to the Berne Convention, several other international agreements have further harmonized copyright rules around the world.

Copyright law is enforced in and through national laws. Those laws are supported by national copyright offices, which in turn support copyright holders, allow for registration, and provide interpretative guidance. Have you ever wondered what unique terms exist in your country’s copyright law? Generally, the rule of territoriality applies: national laws are limited in their reach to activities taking place within the country. This also means that generally speaking, the law of the country where a work is used applies to that particular use. If you are distributing a book in a particular country, then the law of the country where you are distributing the book generally applies. This is true even in the era of the internet – yesterday when I made a presentation at a conference in Nairobi, if I was in breach of copyright, Kenyan law would apply to my case. (thankfully, i used work products from my team mates who are allover the world). This complexity is one of the benefits of Creative Commons licenses, which are designed to be enforceable everywhere.

And Finally… the Public Domain

The public domain consists of creative works that are not subject to copyright. Think of it as a free bazaar of publicly available material – original or derived – from which you can take, and create new works. Why? Because even after such long copyright terms, copyright does expire – it does not last forever. After a copyright term expires, the work enters the public domain for everyone to copy, adapt, and share. Likewise, there are certain types of works that fall outside the scope of copyright.

A healthy public domain is crucial to preserving a society’s heritage or even inspiring new creators. Because of how long copyright terms have been extended over the years, it can be easy to forget the public domain exists. The public domain is a critical part of the evening of copyright. Public domain works are incredibly invaluable resources that belong to us all.

Works enter the public domain in one of four ways:

  1. The copyright expires –  Yes, in many countries, the term of an individual’s copyright expires 50 years after her death. whenever this happens, that work enters the public domain.
  2. The work was never entitled to copyright protection – The Berne Convention identifies categories of works that are not copyrightable such as official texts of the law, or functional works like a screw or nail. In some cases, works created by government employees are excluded from copyright protection, just as well as facts and ideas are never copyrightable.
  3. The creator dedicates the work to the public domain before copyright has expired – One may decide to relinquish their copyright protections and instead dedicate their work to the public domain. Shameless plug here for Creative Commons, which has a legal tool called CC0 (“CC Zero”) Public Domain Dedication that helps authors put their works into the worldwide public domain to the greatest extent possible.
  4. The copyright holder failed to register or formalize their copyright – Today in most countries, there are no formal requirements to acquire or renew copyright protection over a work. This was not always the case, however, and many works have entered the public domain over the years because a creator failed to adhere to formalities.

Well, What can you do with a work that is in the public domain? Almost anything. Depending on the country, for example, a work in the public domain may still be covered by moral rights that last beyond the duration of copyright. It’s also possible that a work is in the public domain in Uganda, but may still be under copyright in Western Samoa! I guess by extension, a work that is in the public domain because its copyright term expired may still be subject to other intellectual property restrictions. Why? Because Trademark protection is independent of copyright protection, and may still exist even though the work is in the public domain as a matter of copyright. Even though it may not be legally required in every country, especially those countries where moral rights do not exist after the term of copyright expires, there are many benefits to identifying and giving credit to the original creator, even after her work has entered the public domain.

With millions of creative works whose copyright has expired—and many more added regularly with tools like the CC0 Public Domain Dedication, the public domain is a vast treasure trove of content. Some sites that host works in the public domain are Project Gutenberg, Public Domain Review,  Digital Public Library of America, Wikimedia Commons, Internet Archive, Library of Congress, Flickr, and the Rijksmuseum. (The CC Search tool is another way to find public domain material.)

It is not always easy to identify whether a work is in the public domain (though there are many resources available to help, such as this database of authors in Argentina). As we learned, copyright protection is automatic, so the absence of a copyright symbol “©” does not mean a work is in the public domain. In addition to its CC0 Public Domain Dedication for creators, Creative Commons also has a tool called the Public Domain Mark, designed to label works whose copyright has expired everywhere in the world, so that reusers can easily identify that those works are in the worldwide public domain. As of 2016, CC’s public domain tools were used on more than 90 million works.

Let’s Wrap This Up!

Like the public domain, exceptions and limitations to copyright are just as important as the exclusive rights copyright grants. Think of them as a safety valve for the public in order to be able to utilize copyrighted works for particular uses in the public interest. Educate yourself about the exceptions and limitations that apply where you live, so you can take advantage of and advocate for these critical user rights. As an organization and as a movement, Creative Commons supports strong exceptions and limitations to copyright. The vision of Creative Commons—universal access to research and education and full participation in culture—will not be realized through licensing alone. CC supports a copyright system that appropriately balances the rights of creators and the rights of users and the general public.

What are your thoughts on the justifications for copyright? Share with me your thoughts on this and more…

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