"

6 Copyright Basics

Copyright law establishes the basic terms of use that apply automatically to works of original authorship. These terms give the copyright holder certain exclusive rights, while also recognizing that users have certain rights to use these works without the need for permission.

Copyright Law

Purpose of Copyright

There are two primary rationales for copyright law, though rationales do vary among legal traditions.

  1. Utilitarian: Under this rationale, copyright is designed to provide an incentive to creators. The aim is to encourage the creation and publication of new works for social benefits.
  2. Author’s rights: Under this rationale, copyright protection serves to recognize and protect the deep connection authors have with their creative works. This rationale is founded upon moral rights, which ensure attribution for authors and preserve the integrity of creative works.

The utilitarian rationale is more commonly associated with the common law tradition, while authors’ rights is historically identified with the civil law tradition.

  • Do one or both of these justifications resonate with you?
  • What other reasons do you believe support or don’t support the granting of exclusive rights to creators of original works?

While different legal traditions identify more strongly with one or the other of these rationales, or may hold other rationales, many copyright systems are influenced by and draw from both utilitarian and authors rights rationales. This is due, in large part, to historical reasons that are outside the scope of this material.

Copyright Ownership

Who owns a copyright?

Typically, the first owner of a copyright will be the individual person that created a work. However, the exclusive rights granted by copyright can be transferred to others, including legal entities such as corporations, publishers, or universities. Understanding who controls the exclusive rights granted by copyright is necessary to understand who has authority to grant permissions to others to reuse the work (e.g., adding a CC license to the work). It is important to note that the author of a work may not necessarily be the copyright holder. For example:

  • Works created in the course of your employment are likely to be owned by your employer, though ownership rules vary by jurisdiction.
  • Copyright law is territorial. Common law countries like Australia and the United States typically adhere to some form of a doctrine commonly known as “work-for-hire.” This doctrine generally provides that if you have created a copyrightable work within the scope of your employment, the employer owns, and controls, the economic rights in the copyrighted work. In many civil law countries, such as France and Germany, the law presumes that copyright vests with the employee-author, unless an employment contract dictates or implies otherwise.
  • Independent contractors may or may not own and control copyright in the works they create in that capacity. That determination most always depends on the terms of the contract between you and the organization that engaged you to perform the work.
  • It’s also worth noting: teachers, university faculty, and learners may or may not own and control copyright in the works they create in those capacities—that determination will depend on certain laws (such as work for hire in some instances) and on the terms of the employment or contractor agreement, university or school policies, and terms of enrollment at the particular institution.
  • If you have co-created a single original work that is subject to copyright, you may be a joint owner, rather than an exclusive owner, of the rights granted by copyright law. Joint ownership generally prohibits one author from exploiting a work without the consent of the others, though the United States is a notable exception to this rule. If, on the other hand, you contributed a discrete work to a larger collective work, such as an encyclopedia or anthology, you likely own a copyright on your individual contribution.

Ownership and control of rights afforded by copyright laws are complicated and vary by jurisdiction. For more information, please refer to the additional resources.

What Is Copyrightable?

Literary and Artistic Works

In countries that have signed on to the major copyright treaties, copyright exists in the expansively defined categories of “literary and artistic works,” though the rules vary on a country-by-country basis. While this list isn’t exhaustive, can you think of a type of work within each category?

  • Literary works
  • Musical works
  • Artistic works or works of visual art
  • Dramatic works
  • Cinematographic works (including audiovisual works)
  • Translations, adaptations, arrangements of literary and artistic works
  • Collections of literary and artistic works
  • Databases
  • Computer software

What are the exclusive rights granted?

Creators who have copyright get exclusive rights to control certain uses of their works by others. Most countries make a distinction between economic rights, which are the exclusive rights, and moral rights. The World Intellectual Property Organization defines them in the following way:1

  1. Economic rights: rights that allow right owners to derive financial reward from the use of their works by others.
  2. Moral rights: rights that allow creators to take certain actions to preserve and protect their link with their work.

Economic Rights

Creators who have copyright get exclusive rights to control certain uses of their works. National laws define these rights in different ways, but the exclusive rights in most countries include at least the following in some formulation:

  • the exclusive right to make copies of their works (right of reproduction)
  • the exclusive right to publicly perform and communicate their works to the public, including via broadcast
  • the exclusive right to make adaptations, such as translations of their works as well as changes to the arrangements of their works

This means that if you own the copyright to a particular novel, no one else can copy or adapt that novel without your permission.

Keep in mind, there is an indispensable difference between being the copyright holder of a work and controlling how a particular authorized copy of the work is used. For example, the copyright owner owns the exclusive rights to make copies of her novel. The person who owns a particular physical copy of the novel can generally do what she wants with it, such as loan it to a friend or sell it to a used bookstore. Or donate it to a library.2 This is why a library can loan physical works as many times as needed without having to ask permission or pay again for the works. Compare that with a subscription database or an e-book lending system, where users purchase access to the same materials.

Conversely, the fact that someone owns or stewards a physical work doesn’t grant the owner of the object any copyrights over the work. For example, the fact the Lilly Library at Indiana University owns a copy of the Shakespeare First Folio doesn’t mean that they have any copyright on the text. The same is true for the Art Institute of Chicago and Seurat’s pointillist masterpiece A Sunday on La Grande Jatte. They are allowed to sell it, donate it, but they can’t control how others might make copies of the work, including taking photographs, making drawings or copies of the sculpture. Furthermore, in these two instances, the original works are both in the Public Domain, so stewards of these works (or copies of it) cannot apply copyright restrictions, anyway.

One of the exclusive rights of copyright is the right to adapt a work.3 An adaptation (or a derivative work, as it is sometimes called) is a new work based on a pre-existing work. In some countries, the term “derivative work” is used to describe changes that include but are not limited to “adaptations” as described in the Berne Convention for the Protection of Literary and Artistic Works, which uses both of these terms in different articles.

For purposes of this course and understanding how CC licenses and public domain tools work, the terms “derivative work” and “adaptation” are interchangeable and mean: a work that is created from a pre-existing work through changes that can only be made with the permission of the copyright holder. It is important to note that not all changes to an existing work create an adaptation. Generally, a modification rises to the level of an adaptation or derivative when the modified work is based on the prior work and manifests sufficient new creativity to be copyrightable. Examples include translation of a novel from one language to another, the creation of a screenplay based on a novel, or the adaptation of a written work to an accessible system such as Braille.

Copyright owners often grant permission to others to adapt their work. Adaptations are entitled to their 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 wording, among other things. Mostly, 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.

Moral Rights

Most countries have moral rights. Moral rights draw on the author’s rights tradition, and they are rights that protect, sometimes indefinitely, the bond between an author and her creative output. Moral rights are distinct from the rights granted to copyright holders to restrict others from economically exploiting their works, but they are closely connected. The Berne Convention for the Protection of Literary and Artistic Works as “the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.4”

Moral rights typically include the 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 the work or the introduction of undesired changes to the work).

Countries that recognize moral rights consider them so integral that in most cases they cannot be licensed away or waived by creators, and they last indefinitely, even when the economic rights on the work might have expired. Creative Commons licenses and legal tools account for these rights.

For a (very) deep dive into moral rights, you can see the “Authors, Attribution, and Integrity: Examining Moral Rights in the United States”5 report from the U.S. Copyright Office.

Similar and Related Rights

Related rights, also referred to as neighboring rights, protect the legal interests of certain persons and legal entities that contribute to making works available to the public or that produce the subject. While not qualifying as works under the copyright systems of all countries, it contains sufficient creativity or technical and organizational skill to justify recognition of a copyright-like property right. The law of related rights deems that the productions that result from the activities of such persons and entities merit legal protection as they are related to the protection of works of authorship under copyright. Some laws make clear, however, that the exercise of related rights should leave intact, and in no way affect, the protection of copyright.

Traditionally, related rights have been granted to three categories of beneficiaries:

  • performers;
  • producers of sound recordings (also referred to as phonograms);
  • and broadcasting organizations.

The rights of performers are recognized because their creative intervention is necessary to give life to, for example, motion pictures, musical, dramatic and choreographic works. They have a justifiable interest in the legal protection of their individual interpretations. The rights of producers of sound recordings are recognized because their creative, financial and organizational resources are necessary to make sound recordings, often based on musical works, available to the public in commercial form. Due to their legitimate interest in having the legal resources to take action against unauthorized uses—be this the making and distribution of unauthorized copies (piracy) or the unauthorized broadcasting or communication to the public of their sound recordings. Likewise, the rights of broadcasting organizations are recognized because of their role in making works available to the public, and in light of their justified interest in controlling the transmission and retransmission of their broadcasts.

The rights granted in national laws to the three types of beneficiaries of related rights based on these treaties are generally as follows (although not all rights may be granted under the same law):

  • Performers have the right to prevent fixation (recording), broadcasting and communication to the public of their live performances without their consent, and the right to prevent reproduction of fixations of their performances under certain circumstances. The rights respecting broadcasting and communication to the public may be in the form of equitable remuneration rather than a right to prevent. Due to the personal nature of their creations, some national laws also grant performers moral rights. These rights may be exercised to prevent unauthorized use of their name and image, or modifications of their performances that present them in an unfavorable light. When the Beijing Treaty enters into force, these rights will extend to performers in relation to their audiovisual performances.
  • Producers of sound recordings have the right to authorize or prohibit reproduction, importation, and distribution of their sound recordings and copies thereof, and the right to equitable remuneration for broadcasting and communication to the public of their sound recordings.
  • Broadcasting organizations have the right to authorize or prohibit rebroadcasting, fixation and reproduction of their broadcasts. Under some laws, additional rights are granted. For example, in a growing number of countries, a right of rental is granted to producers of sound recordings respecting sound recordings, and to performers respecting audiovisual works. Some countries also grant specific rights over cable transmissions. Likewise, under the WIPO Performances and Phonograms Treaty, producers of sound recordings (as well as any other right holders of sound recordings under national law) are granted a right of rental. The Beijing Treaty extended the right of rental to performers in relation to their audiovisual performances.

As in the case of copyright, the related rights treaties and national laws contain limitations and exceptions to related rights.

Intellectual Property

Distinguishing Copyright from Other Types of Intellectual Property

Intellectual property is the term used for rights – established by law – that empower creators to restrict others from using their creative works. Copyright is one type 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 types of intellectual property rights and the laws that protect those rights.

  • Trademark law generally protects the public from being confused about the source of goods and services. The holder of a trademark is mainly allowed to prevent use of its trademark by others if the public will be confused. Examples of trademarks are the golden arches used by McDonald’s, or the brand name Coca-Cola. 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 similar products and services.

Have you ever wondered why there aren’t more Frankenstein movies? For a discussion of the peculiar intersection of copyright and trademark regarding this classic movie monster, as well as discussions of copyright and vampires and copyright and zombies, read the Library of Congress post, “Copyright Horror Stories,” by Mary Daniel.

License

Icon for the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

Open Educational Resources for Librarians and Educators Copyright © 2024 by Craig Finlay is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

Share This Book