Test 1 (1-4) Flashcards
Copyright
A form of property ownership for certain types of artistic and creative works
Two categories of property
- Real property
2. Personal property
Real Property
Protects land or things that are built on land (houses and buildings)
Personal Property
Everything that can be owned other than real property (a car)
Intellectual Property
Products of the mind (copyrights, patents, trademarks)
What property has copyright protection?
Intangible property- cannot be possessed by anyone but can be owned
Can you posses a song?
No, but you can own one
How are copyrighted works embodied?
Physical objects, which can be possessed (Sheet music, mp3, tape, recording)
How many people can infringe on a copyright at a time?
More than 1 person
How did copyright originally work?
It involved only the right to copy literary works and applied only to printed material
5 rights
Reproduce, Adapt, Distribute, Publicly perform, Publicly display
License
How permission to use a work is granted- an agreement or contract stating how the work may be used and what compensation the copyright owner will be paid for allowing the use
Royalties
The compensation paid to a copyright owner under a license- a percentage of the price paid for the use
Act of possession
The way most property rights arose
What happens when the work is open to the public?
It is free for their use
The author
Decides if the works should be made available
Is copyright and unlimited right?
No, but it has limitations
Fair Use Defense
Allows people copyrighted works without permission and without paying for their use in certain circumstances, thereby preventing copyright from acting as a deterrent to free speech
Author’s right
A morally entitled to control and exploit the products of the author’s intellect
(Advocate for this right- John Locke)
Utilitarian’s right
To encourage the widest possible production and availability of artistic works
What is copyrights justification?
It is necessary to ensure that creators have sufficient incentives
Are intellectual property rights absolute?
NO
What kind of monopoly is copyright?
Limited monopoly granted for a specific period of time
Public Domain
What all copyrighted works eventually fall under
Copyright limitations
- Original works of authorship
- Protects only expression, not ideas
- Certain uses of copyrighted works are permitted without the copyright owners consent
What is a criticism that is aimed to copyright law?
That is does not really provide much incentive for authors to create
What is the balancing done in copyright law?
Providing sufficient incentives to authors to create works while assuring that the public can have access to those works
What is the goal of copyright?
To assure the greatest possible production and availability of creative works
What is copyright law based upon?
The utilitarian philosophy
US Free Markets System vs other countries
US- profits are the just reward
Other- profits should be shared within society
20 year extension
- To preserve many valuable copyrights (Mickey Mouse-about to expire)
- To bring the term of American copyright protection in line with many European countries
Patents
Provides protection for inventions, discoveries, and product designs. Must be novel and non obvious. Greatest protection- lasts only 20 years
Trademarks
Any word, name, symbol, or device or any combination used to identify products or services. Intended to benefit the public by preventing customers from being misled or confused as to the source of goods and services
Trade Secret
Any business information that is kept secret and gives a business a competitive advantage
What is more important that physical commodities?
Intellectual property
Challenge of copyright to the economy
To accomodate technological advances while still guaranteeing that creators and producers have the right to control and profit from the use of their creations
How were creative works communicated before copyright?
Orally
What happened in 1436?
Johannes Gutenberg created the printing press-more literary works were made available (printing press=internet)
What happened in 1534?
Origins were made to prevent political dissent. Licensing Act was passed
Licensing Act
Required that anyone who wanted to publish written works must first obtain license
Stationer’s Company
A publishing monopoly by a group of English printers and booksellers
What happened in 1577?
Revised licensing act- required all books to be registered with the Stationer’s Company- recorded who owned the “copy-right”- right to print copies of the work. Censorship rather than protection
What happened in 1694?
Licensing act expired- Stationer’s Company had competition from new printers- resulted in 1st copyright statue
Copyright statute
Gave ownership rights to authors
Statute of Anne
1710- an act for the encouragement of learning, by vesting the copies of printed books in authors or purchasers of such copies, during the times mentioned
- authors received 14 year term of copyright with 14 year term if the author was still alive
- confirmed the Stationer’s rights in their existing books for 21 years and granted protection in new works to authors
- had to register the title of the book with Stationer’s company before publishing
- limited and applied solely to printing and selling books
- did not protect musical works
What happened in 1842?
The Victoria Statutes recognized the copyright ability of music in England
U.S’s first copyright law was similar to what?
England’s Statue of Anne
What authors campaigned for copyright protection?
Noah Webster & Thomas Paine
What happened in the colonial states in 1783?
1st copyright statute passed by Connecticut. 12 of 13 colonies had its own copyright laws- so they need to consolidate
Constitutional Copyright Clause
Article 1 Section 8 Clause 8 of the constitution gave rights to authors and investors for their works for a limited time
Purposes of Copyright Law in the US
- To promote the creation and dissemination of creative works to the public
- Rewarding authors for creations in secondary purpose, to encourage them to continue to create new works.
Copyright Act of 1790
Passed the first American copyright statute- based on Statute of Anne and signed by George Washington.
- limited to books, maps, and charts
- provided initial 14 years, max of 28 in protection
Copyright Act of 1831
First revision of act took place
- changed the initial term for copyright protection to 28 years- to make the Americans protection same as foreign authors
- allowed the renewal right to pass to the author’s widow or children if the author wasn’t alive at the end of initial term
- included musical compositions, but not public performance (until 1897)
What happened in 1905?
Roosevelt called for a complete revision of the act in order to bring it in line with technological advances
Copyright Act of 1909
Instead of individually saying what was protected, all writings of an author is protected-writing included any creative works of the mind-fruits of intellectual labor
- renewal period of 28 years, max 56
- protected only published works
- non published were protected by court decisions (common law)
- created a compulsory mechanical license
- 2 cent royalty to be paid to the copyright owner for each record containing the song
Shortcoming
Failed to bring American copyright law in line with the terms required to join the main international copyright treaty
Compulsory Mechanical License
To reproduce and distribute sound recordings of musical compositions
Mechanical License
License required to record a copyrighted song
-sound recordings were NOT protected, but amendment was made to protect this.
Copyright Act of 1976
Changes made (9):
Protection-automatically begins when fixed in tangible form
Preemption-no longer any common law copyright for unpublished works
Subject matter- any original works of authorship can be protected
Ownership- copyright owner can transfer less than its full ownership-can be shared and split
Duration-life of author plus 50 years, life of author plus 70 years
Termination Right-allows authors to terminate transfers of copyright ownership and regain full ownership
Formalities- copyright notice required for published works. registration and recordation of copyright transfers
Fair Use- broadcast exception- use without permission in certain circumstances
Compulsory License- allows use of copyrighted works with certain procedures and payment of fees
-been amended over 30 times
Berne Convention in 1886
Each member country agreed to give foreign works the same degree of protection as its laws provided for domestic works
-US joined in 1989
What can be protected by copyright?
Books, magazines, newspapers, scripts, speeches, personal and business correspondence, email, computer programs, product packaging, musical compositions with or without lyrics, sound recordings, motion pictures, videos, photographs, paintings, drawings and sculptures.
-no judgement made on piece
3 requirements for copyright
- Originality
- Expression
- Fixation
Originality
When work has been independently created by its author
- doesn’t require any novelty, ingenuity, or aesthetic merit
- Minimal required creativity
Expression
Works must contain some original expression of the author, not just ideas. Ideas can’t be protected but the author’s original way of expressing ideas can
Fixation
All copyrightable material must be fixed in a tangible form (song on a CD)
-if not available in tangible form, very difficult to prove existence
2 objects copyrightable material can be fixed in:
- Copies- sheet music, books, periodicals
2. Phonorecords- mp3, CD, cassette tapes, digital audio tapes
Categories of Copyrightable works
-Literary- how words are arranged (novels, magazines, poems, data)
-Musical- combination of melody, harmony and rhythm in a fixed medium.
-Dramatic-tell a story through action, dialog, and narration
(may include music)
-Pantomimes and choreographic- movement and dance, usually on video tapes and films. Simple is not copyrightable
-Pictorial, graphic, and sculptural works- works of fine, graphic and applied art
-Motion pictures and other individual works- movies, music videos, motion picture sound tracks
-Sound recordings- a fixation of a series of musical , spoken or other sounds
-Architectural works
Musical Works requirements
Lyrics- must contain original expression. No protection for short and simple phrases
Melody- a pleasing succession or arrangement of sounds and notes-some short phrases are help to be ideas, so they are copyrightable
Harmony- structure and relation of chords- rarely on its own sufficient material for copyright
Rhythm-beat that a musical composition follows- rarely on its own material
“the sixth bar rule”
any melody that lasts for less than 6 bars is not copyrightable
Fixation Requirements
Can be fixed in written or recorded notations. Sound recordings can have different authors (vocalist, musician, director, producer, and engineer). Only protects against the actual copying of the recorded sounds, not against the imitation of the sounds.
Compilations
Special types of work that overlap the categories of copyrightable works. Based on preexisting material.
Elements of Copyrightable Compilation
- Collection and assembly of preexisting material, facts or data
- Selection, coordination and arrangement of materials
- Creation, through the selection, coordination, and arrangement of an original work of authorship
Collective Works
Is a type of compilation-a compilation of copyrighted works
What is not protected by copyright
- Public Domain- not owned by anyone
- Ideas versus Expression- would inhibit authorship rather than encourage it
- Facts- authors don’t create facts, they’re discovered
- Names, Titles, Slogans and short phrases-may receive protection under trademark law
- Unfixed works- any work not fixed in tangible isn’t protected
- Works of the US Gov- only applies to federal gov, can have copyrights transferred to them but not created
Can a copyright be transferred?
Yes, from one to another
What kid of right does an author have when they sell their work?
They receive a contractual right to receive income from the uses of their works. Usually has to transfer their work to the publishers in order to have their work commercially exploited
Would transfer of ownership of a compact disk be a transfer of copyright ownership?
No, you own the CD but not the songs on it
Initial Ownership
Arises from and begins upon creation, automatically protected the moment it’s created-not by registration
Joint Ownership
Copyright ownership may be split among several parties. It is a work prepared by 2 or more authors with the intention that their contributions be merged into inseparable or interdependent parts.
(interdependent-music and song lyrics)
Requirements for Joint Ownership
- Two or more authors must contribute to the creation
- Each of the co-authors must make his contribution with the intention that the contributions be combined to form a single work
Intent Requirements
Authors must intend to combine their contributions into a unitary whole- intent must exist at the time their contributions. Authors do not have to be together or know each other as long as they have the intent
Exception: author writes aa poem and then later another person writes accompany music
Copyright ability of Individual Contributions
one must contribute some original expression that would be copyrightable on its own-each must contribute copyrightable authorship in order to have a joint work.
Contributor can still be a co-owner of the resulting work’s copyright. Must be independent but does NOT have to be equal
Rights and Duties of Joint Owners
Co-owners can agree to ownership rules as long as it’s in writing. If they don’t agree in writing then the copyright act rules apply.
Equal, Undivided Ownership Interest
Joint authors are co-owners of the work. Each author owns a equal share of entire work, regardless of contribution.
Right to License
Each joint owner has the right to use the work or authorize others to use the work. Applies regardless of whether the authorizing author has consent of other author
EXCEPTION: joint owner can’t grant an exclusive license, would prevent the other co-owner from granting licenses
Duty to Account to Co-Owners
Required to account to co-owners for their share of any profits from use. Unless specified other than writing, each co-owner must share any income generated by a jointly owned work
Joint Authorship Problems
Solution: co-authors have a written collaboration agreement for any co-written songs.
Community Property
9 states have community property laws- what’s owned by the wife is owned by the husband
Prenup
Allows an author or copyright owner hold complete individual ownership of copyrighted works
2 Works for Hire
- Works prepared by employees within the scope of employment
- if employee creates a copyrightable work as a part of their job, the employer will own the copyright to the work - Specially Ordered or Commissioned Works
- are created when the hiring party is the motivating factor in the creation of the work
- can be works made for hire if collection work, part of motion picture, translation, supplementary work, compilation, instructional text, test, answer material for a test, atlas
Employee
If the party on whose behalf the work is performed has the right to control the manner and means by which the work is performed
2 most common types of transfers of ownership
- Assignments-transfers all or part of its interest in a copyrighted work
- Exclusive licenses- transfers one or more of its exclusive right but retains one or more rights as well
- nonexclusive rights do not involve a transfer of ownership
1909 & 1976 Copyright Act
1909- copyright owner’s interest could not be divided
1976- changed this rule making copyright ownership divisible
Writing Requirement
Transfers must be written, nonexclusive licenses do not have to be written .
Must include: signed by owner of rights, specify the particular rights being transferred, who is acquiring the rights, duration of transfer, (ALWAYS) whether it’s exclusive or nonexclusive
Recording Copyright Transfers
Any document pertaining to a copyright can be filed in the copyright office, found on their website, and available for public inspection
Ownership of Sound Recordings
Anyone who has contributed original expression to the creation of a recording would legally be considered an author
-considered works made for hire
Orphan Copyrights
The copyright owner cannot be located or contacted
-Canada is the only country that has implemented a law covering this
