A Review of the Current State of Copyright Law

By Lisa Rein, lisa@lisarein.com

April 12, 2006

Traditional Copyright
The Copyright Term
Too Complicated for the Public To Understand
Copyright Infringement and the DMCA
Fair Use
Copyright is "Automatic"
The Loss of the Public Domain
Eldred vs. Ashcroft (2003)
Creative Commons Licenses

To understand the current state of Copyright Law, it is helpful to first understand the Founding Fathers original intentions and the guidelines that were originally set forth in the Constitution. Article 1, Section 8 states that Congress has the power "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." (U.S. Constitution 1788) The Copyright Act of 1790 specifies the Copyright term at 14 years, with the option to renew once for another 14 years, for a total of 28 years of protection. (Copyright 1790) After that, the work goes into the public domain, so others can use it and benefit from it. (After a work goes into the public domain, publishers are free to print it up and sell it without compensating the original creator.)

The Constitution is quite clear about who Copyright was ultimately supposed to benefit: the public. The very first Copyright act, the Copyright Act of 1790, described itself in its very first sentence as "An act for the encouragement of learning..."  The government recognized that creators needed compensation in order to create, however the ultimate goal of creating new, better works was to benefit the public, not only provide private gain. The whole purpose of Copyright was for creators to have the exclusive right to make certain uses of their work for a limited time however, after that limited time, all uses could be enjoyed and reused freely by any member of the public. Traditional Copyright intended that neither the creator nor the public should be able to appropriate all of the benefits of a work. Creators need to gain some benefit or they wouldn’t create. The Public needs creations to build upon and enjoy. The promotion of learning and the arts is another key consideration that the Founding Fathers had in mind when they devised this system.

The economic perspective behind Copyright is something called "The Copyright Bargain. (Litman 2001) This "bargain" is the deal entered into between Copyright holders and the general public. The Copyright system is designed to give some market-based financial compensation to the people who created works and the people who distributed them (publishers). However, the other side of this “bargain” is that the long-term rights for the use and reuse of those works be reserved for the public and other authors of the future. (Rein 2003)

One of the most controversial Copyright issues today has been determining the length of this Copyright Term. The Constitution specifies that Congress is "securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (U.S. Constitution 1788) For years, corporate Copyright owners, such as the Disney Corporation, have been successfully lobbying Congress to continuously extend the term on the basis that Congress has the power to determine what "limited" is. As a result, the Copyright term has been extended 11 times in the last 40 years. The current term is 70 years after the death of the creator, and 95 years after first public distribution of "works for hire," or 120 years after the creation date, whichever comes first. (Copyright 2003)  A "work for hire" refers to a work where the creator signs off on their rights as part of the deal. Theoretically, the artist does this in exchange for a greater sum of money, since he won't see any further financial benefits from the work after the initial payment. From a company's stand point, “works for hire” are easier to deal with because the corporation would otherwise have to clear usage with the artist every time it wanted to reuse the media in some way. Whether this is good or bad depends on which side of the deal you're on. If you are an artist, you always want to retain or share the Copyright, so you can stay in the licensing (and compensation) loop if the work is reused later. If you are a producer or part of a production company, however, you won't want to worry about having to find the artist later to get their permission for every little reuse. So a producer wants the artist to agree to create work as a “work for hire” whenever possible. These latest extensions only apply to works created after they take effect. This means that the term varies, depending on when a work was created. This adds another layer of complexity to the already confusing prospect of correctly determining whether a historical work has fallen into the Public Domain.

The Copyright Term has now been extended to be longer than most humans' life span, so creators rarely live long enough to see their works go into the public domain. Copyright holders are able to profit from their works throughout their lifetime and often their offspring or whomever inherited their estate after their death also profits.

What started out as a simple document that fit on half a newspaper page has bloated into a document of over 290 pages. As a result, students and teachers aren't really sure what the law is, and often err on the side of conservatism. This has led to what is called a "chilling effect," where art, education and research are not allowed to blossom to their full potential for fear of legal repercussions. With artists and creators unsure of their legal standing, many choose to create other works that might be "safer" considering the unknowns surrounding the use of Copyrighted works. The scientific community has also felt the repercussions of this chilling effect, because they are afraid to borrow from the research of others to advance new scientific solutions.

"Infringement" is violating a Copyright-owner's exclusive rights. The law does not require that the infringer be aware they are doing so. Harm does not need to be proven. (Litman 2001) As an artist deciding whether or not to include pieces from the works of others, you want to make sure you're not infringing on any one else's rights, so you don't get sued.

What happens when you put something up on the Internet without permission and the Copyright holder finds out?  The Copyright holder can accuse you of violating something called the Digital Millennium Copyright Act and send your Internet Service Provider (where your files are hosted) a "takedown notice." (DMCA 1998) By law, according to the DMCA, your ISP has seven days to respond. Theoretically, a week is plenty of time to contact you, find out what's going on and, if you are infringing, ask you to take it down. In reality however, a week is not very much time. What if the “takedown” letter is sent on a Friday and not read until Monday?  Whether that's one day or three days is unclear. The Copyright holder can demand that it be taken down pending investigation and, often, this is done before you have an opportunity to defend yourself. According to the DMCA, a Copyright holder need only have a "good faith belief" that his rights are being infringed to issue and "cease and desist" letter (a "c and d" or "takedown notice").

The reality is that ISPs rarely take the time to investigate or send a letter back saying that they have checked with the violator in question, who claims they own the material and is disputing their claim. The larger ISPs have lawyers and know their rights, but the smaller ISPs don't always know their options and don't want to pay a lawyer to find out what they are. So the easiest thing for them to do, often, is take the site down pending further investigation. The Digital Millennium Copyright Act is not very straightforward and is difficult to understand. Its provisions are still being debated, but it's the current law in effect. Even after you take the material down, you can still be charged anywhere from $5000 to $50,000 per violation. Defending yourself costs money, so having any sort of conflict becomes immediately expensive.

“Fair use” is a defense, used after the acknowledgement of infringement (unauthorized use) has actually taken place. The Copyright Act of 1976 specified in writing a collection of provisions for Fair Uses that, up to that point, had only been understood via "Common Law" precedents set by judges ruling on a case-by-case basis over the years. (Schultz 2006) Section 107, Title 17 of the Copyright Act of 1976 explains "Fair Use" in a fairly straightforward manner defining a number of specific acts that don't count as Copyright infringement. (Copyright 1976) These “acts” include reproducing "part or all of a work for the purposes of: criticism, comment, news reporting, teaching, scholarship or research." (Copyright 1976) Parts of the definition are purposely left up to interpretation. For instance, what exactly constitutes criticism, comments, news reporting, teaching, scholarship or research? This act also sets forth what has come to be known as the Fair Use Four Factors Test, which is used to determine whether a use qualifies as “fair.”  In a nutshell, it depends on whether such a use is commercial or non-commercial, the "nature" of the work (whether it is factual or fictional) how much of the work is used and if such use has some effect on the potential market value of that work. Although the text of Section 107, Title 17 of the Copyright Act of 1976 states very clearly that "multiple copies for classroom use" is included as “fair use”, recently adopted policies across academic campuses nationwide have required teachers to cut back on the amount of copied material actually used in class, forcing them to ask themselves if they "really need" excerpts from one book or another to make their point in class. Such is another example of the "chilling effect", this time on the educational process.

The Copyright Act of 1976 also designates that newly created works are Copyrighted "automatically."  The Copyright is attributed to the work without having to register it in the Copyright Office, as was previously the case. A work is copyrighted as soon as it is "fixed in a tangible medium." (Copyright 2003) Examples include taking a photograph or writing down a story on paper or recording a song on to a tape. This automatic protection has both benefits to creators and potential pitfalls for creators who may not wish for their works to be "locked up" after their death.

Arguably, one of the greatest casualties of a perpetual Copyright Term is the eventual loss of a Public Domain. There are many who would say that the public doesn't lose anything from not having a public domain anymore, and that it's OK for people to pay to use creative works in perpetuity. They might also argue that the Founding Fathers just hadn't thought in terms of our modern concepts of intellectual property when they were first devising the concept of Copyright in the early acts.

The last Copyright extension, the Sonny Bono Copyright term-extension act, added the last 20 years to the term, effectively pushing the pubic domain work's release date so far out that now no creative work is scheduled to go into the public domain for 16 years. Given the current sentiment, Copyright term is probably going to be extended again, and the concept and existence of “public domain” may be lost forever. The "Copyright maxima lists" feel that there's nothing wrong with the loss of a public domain. However, most would agree that this viewpoint ignores the other half of the Copyright Bargain, where the public eventually benefits from the work.

Eric Eldred, a public-domain publisher who had been making HTML'd versions of public domain works available on the Web, cried foul, and launched a case against the government calling the constitutionality of the last 20-year extension into question. At the same time, on a parallel track, Eldred, with the help of many legal academics from universities around the country, set out to attempt to create a voluntary public domain. (Lessig 2002)

It is because of this dwindling Public Domain that Creative Commons was created. Creative Commons is a non-profit entity created to offer alternative licensing to that of traditional Copyright. Creative Commons licenses allow certain uses "up front," without requiring the explicit permission from the Copyright holder, while still preserving all other protections of existing Copyright Law. Creative Commons was started in 2002 in direct response to the Sonny Bono Copyright Term Extension Act of 1998 (Sonny Bono 1998), when this legislation extended the Copyright term to a length that stopped many works from going into Public Domain. This legislation deprived Public Domain publishers from being able to publish these works. (Eldred)

In Eldred vs. Ashcroft, the Supreme Court ruled that these endless Copyright term extensions were constitutional, based on Congress' right to determine what constituted a "limited time." (Eldred vs. Ashcroft 2003)

All Creative Commons licenses require attribution. After that, you have two options: allowing/disallowing commercial usage and allowing/disallowing derivative works. Furthermore, if you do allow your work to be remixed to create another "derivative work," you may optionally require that such works are released under the same license as yours. This way, remixes of your work are also available to remix, rather than being "locked up" under another license.

This "share-alike" provision embodies the true spirit of Creative Commons: creating a voluntary Public Domain in response to the ongoing loss of the "real" Public Domain due to the perpetual length of the copyright term. However, many people don't want to place any restrictions on reuse, fearing that such restrictions may serve as a deterrent to usage. (See my attached "Pros and Cons of CC licenses" table.)

Creative Commons’ licenses work backwards from existing copyright to enable you to make exceptions to the normal copyright rule, and allow the uses you want without losing any of the "automatic" protections of "traditional copyright."  Every license allows the work to be copied and distributed in any format, displayed or performed publicly, or webcast (a "digital public performance"). Every license applies world-wide and is irrevocable. If that "irrevocable" part sounds scary, fear not. Another feature of Creative Commons’ licenses is that they are non-exclusive. So putting your work out under a CC license can never interfere with anything else you choose to do with that work in the future.

These licenses take on different perspectives depending on whether you are using work licensed by others for your work, or licensing your work for others. When choosing content, a producer needs to first consider whether it is okay to use the source material as he would like in his own production. His second consideration is to confirm that the license for that source material will also allow for whatever license chosen for his own works’ redistribution.

The most restrictive license, and perhaps the "safest" to use until you understand the different options, is the "Attribution, Non-commercial, No-derivs" license. Like all Creative Commons’ licenses, it requires attribution and a link back to your site if the work is made available for download on a website. This license is sometimes called the "free advertising" license because it enables others to do your duplication and re-distribution for you. People can download it and share it, but they are not allowed to modify it in any way. So, for example, you can use songs licensed under this license as a soundtrack in your film, but you are not allowed to run that song through a filter to make it sound different in any way. You are also not allowed to sell the song when you’re done, without contacting that Copyright holder and obtaining their explicit permission. This license allows only for usage in non-commercial environments (schools, non-profits, students, and, potentially, a person's personal website), and requires that the work be included in its entirety. This doesn't mean that you have to use the whole song, but that any part you do use is “verbatim,” and not altered or remixed to create another "derivative" work.

Now, in the "real world," if a commercial filmmaker, found a Creative Commons’ licensed work under one of these licenses, the chances would be pretty good that you could contact the Copyright holder and pay them some money and get their permission for use. As an enticement to the original artist, the license holder might specify the use was for a full length commercial film and likely to get a lot of exposure. Big Hollywood studios have entire departments of people who are set up to handle this kind of negotiation, but the average "independent" filmmaker does not have these resources. He would have to forfeit this option if an opportunity later arose to make money from his creation. For this reason, independent filmmakers are more likely to choose music that gives permission to sell their new creations up front, so as not to create more complications later.

There are two or more sides to almost every aspect of these licenses. Each of the perceived "restrictions" has the potential to be perceived as having positive or negative consequences. For instance, allowing derivative works represents both a loss of control over how your work may be used, but it also puts you on the receiving end of more "free advertising." This is true because when others use your work, they will be promoting your work along with their own derivative creations by providing attribution and a link back to your own website (as required by all licenses that allow derivative works.) Allowing commercial works lets others profit from works containing your work within them, but it also makes using your work an option to a whole different professional class of people. Requiring that others "share alike" ensures that all derivative works will themselves be made available for others to reuse, but it may be a deal breaker for a professional filmmaker whose other contractual obligations do not allow them any flexibility.

In the same vein, there are definitely two sides to the argument for placing one's works directly in to the Public Domain. On the positive side, you can be sure that your work will live on after you do. People will make copies of your work in different formats for you to preserve the work, and you can list your works among numerous historical works in many of the public domain archives available. Your work will most likely have derivative works created from it because artists will often create from existing work simply because they know they can. But really, these days, placing your work in the Public Domain is more of a political statement, should you wish to make that point that the information your work contains is so important that you release all claims in order to just "get it out there." Or, sometimes, this action represents that your work is built upon works already in the Public Domain, and therefore you do not wish to lock up your derivative work based on that Public Domain work under the restrictions of traditional Copyright. (Disney's Snow White is a good example of a derivative work based on a Public Domain work that is now locked up under Disney's traditional Copyright for its film.) One might also place their work under the Public Domain as an act of support and dedication towards rebuilding our Public Domain.

Since Creative Commons licenses are now available, it's less common for one to give their rights away to make their point. A person can make their work available for uses of their choosing, while still retaining complete control over other uses.

The attached table summarizes the pros and cons for each of the six main Creative Commons licenses (and the Public Domain).

It can also be found here:
prosandcons.html

References

Copyright Act of 1976 (1976)

Copyright Act of 1976, Section 107, Title 17 (1976)

Copyright Act of 1790 entry, Wikipedia (n.d.). Retrieved
April 6, 2006, from
http://en.wikipedia.org/wiki/Copyright_Act_of_1790

Copyright Law of the United States of America (June 2003), circ 92.

Creative Commons: A Spectrum of Rights (n.d.). Retrieved
April 6, 2006, from
http://www.creativecommons.org/about/licenses/comics2

Creative Commons: Baseline rights and restrictions in all
licenses (n.d.). Retrieved on April 1, 2006 from
http://creativecommons.org/about/licenses/fullrights

Creative Commons: Creative Commons Licenses (n.d.).
Retrieved on April 1, 2006 from
http://creativecommons.org/about/licenses/meet-the-licenses

Creative Commons: Choosing a License (n.d.).
Retrieved on April 1, 2006 from
http://creativecommons.org/about/think

Creative Commons: Public Domain Dedication (n.d.).
Retrieved on April 11, 2006 from
http://creativecommons.org/licenses/publicdomain/

Creative Commons: Things to think about before you apply a
Creative Commons license to your work (n.d.).
Retrieved on April 1, 2006 from
http://creativecommons.org/about/licenses/index_html

The Digital Millennium Copyright Act (DMCA) (1998)

Eldred vs. Ashcroft, 537 U.S. (2003)

Lessig, L. (2002) Speech at the Creative Commons Launch. Retrieved April 1, 2006 from:
http://www.onlisareinsradar.com/archives/000782.php

Litman, J. (2001). Digital Copyright, Prometheus Books.

The Sonny Bono Copyright Term Extension Act (1998)

Rein, L. (2005) Copyright Basics for Web Designers (n.d.).
Retrieved April 1 from:
http://www.lisarein.com/seybold/

Rein, L. (2005) Songs From the Commons #4 (podcast)
Retrieved April 1, 2006:
http://www.mondoglobo.net/thecommons/?p=9

Schultz, J. (2006) Personal e-mail communication with Legal
Expert, April 8, 2006.

U.S. Constitution (year), Article I, Section 8 (1788)