Class Notes, LSC 311-02, Copyright

L SC-311-02: Information Literacy
Day 26, November 23, 1998

Copyright

...To promote the progress of science and useful arts by securing for a limited time to authors and inventors the exclusive right to their respective writings and discoveries..."
US Constitution

History

Many believe that the concept of copyright is the direct result of the printing press. And why not? With a printing press anyone could copy (print) anything, mass produce it and make money in doing so. Well, there is a slight ethical problem but ethics are not always a major concern. Anyway, the first copyright law was passed by British Parliament in 1710 (255 years after the invention of the printing press) but the first case in recorded history involving theft of literary property occurred in 567 AD, some eleven hundred years before the first national copyright statute took effect.

What happened in 567 AD? Well, back then an Irish monk named Columba of Iona (he was later canonized and became Saint Columba but that's another story entirely), visted a neighboring monastery and made an unauthorized copy of the abbott's psalter. Columba, you see, was an empire builder. He had begun his own monastery on the Scottish island of Iona and went on to found more than several monasteries in Scotland and Ireland. Perhaps he wished to build up his collection. Anyway, when the abbot found out that Columba had made a copy of the psalter, he demanded its instant return. Columba refused so the abbott appealed to the local king. The king ordered the return of the copy, so Columba complied.

During the Middle Ages monasteries not only kept strict control over who could copy their materials but also which materials could be copied. By the 15th century copying manuscripts became a commerical endeavor, giving rise to a new profession: the lay copyist. When Gutenberg came out with his printing press, the lay copyist became a lay printer. Authors had sole rights over who copied their manuscripts; thus the lay printer would purchase those rights from the author. However, no laws or regulations governed the printer. Competition among printers was fierce. Just as strong, however, was the widespread power of the press. The monarchy (and the church) came to fear to the power of the press and to quiet the bickering, they granted sole rights to print a specific title to their favorite printers. Sometimes this included the right to print a whole class or type of books. This is, I believe, where the term "copyright" came about. Certain printers had the right to print(copy) certain materials.

In 1710 the first national copyright law (or statute) was passed in England. The complete title was "A Bill for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors of Purchasers of Such Copies, during the Times therein mentioned". What this law enforced was that authors, not printers, had the sole right of printing for a specific time period.

Existing works--21 years from the effective date of the act Works not yet printed--14 years

Ever since that date authors have held the rights to their works. The duration of copyright (i.e., how long it is protected) has changed over the years as well as what is determined to be the author. New technologies beget new quandries. Consider the following timeline.

Copyright Timeline

Year	Items Added	Duration	Procedures
1790	Books, maps, charts	14 years with 14 year renewal=28 years	Deposit work prior to publication in Clerk's Office of US District Court Notice must be published in newspaper 4 times within two months of publication Copy deposited with US Secretary of State within 6 months after publication No protection for works written by non-US citizen Penalties for non-compliance: forfeiture of copyright Fines for violation: $.50 for each sheet found
1802	Designs, engravings, etchings	No change	Copyright notice displayed on (or next to) title page
1831	Musical compositions	28 years with 14 year renewal=42 years	Copyright notice required in each copy Newspaper notice no longer required except for renewals Deposit of work with district clerk within 3 months after publication District clerk annually ships all works to US Secretary of State
1856	Right of performance of dramatic works	No change	1831-59 1834: Record of transfer or assignment of copyright in the court of original entry 1846: Delivery of copies to Smithsonian Institute and Library of Congress 1859: Repeal of 1846 deposit requirements and Dept of Interior made custodian of the copyright
1865	Photographs & negatives	No change	Deposit with Library of Congress within 1 month of publication
1870	Paintings, statues & other fine arts Right to dramatize or translate now belongs to author	No change	$25 penalty for failure to deposit (1867) Prepublication notice required Deposit of two copies with Library of Congress within 10 days of publication Print titles must be filed prior to publication
1909	Rights of performance now include jukeboxes	28 years + 28 year renewal=56 years	1874-1909 1874: Short form of copyright notice (Copyright, 18__, by John Doe) made legal 1891: Copyright extended to non US citizens if their country reciprocates and copyrighted item is printed in US 1893: Copies deposited "on or before publication" have the same legal effect 1895: No US Government publication should be copyrighted Infringement penalties for photographs and of original works of art enacted 1897: Unauthorized, willful and for-profit representation of any dramatic or musical composition is a misdemeanor punishable by imprisonment Registrar of Copyrights position created in Library of Congress Penalty for printing false claim of copyright 1900: US Copyright law extended to Hawaii 1909: Copyright is effective with publication (and not prior to) with statutory notice of copyright and deposit of two copies in the Library of Congres Manufacturing clause is extended to include typesetting, printing, and binding within the US First sale doctrine codified
1912	Motion pictures	No change	No change
1952	Public performances for profit, recording of nondramatic literary works added to author's rights	No change	1955: US recognizes Universal Copyright Convention
1976	"...original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device..."	Life of the author + 50 years Joint works: life of the surviving author + 50 years Anonymous/Pseudonymous/Works for hire: 75 years from first year of publication or a term of 100 years from the year of its creation, whichever expires first	Omission of copyright notice no longer results in immediate forfeiture Single system for published and unpublished works
1988	No change	No change	Works protected whether or not they display copyright notice Deposit and registration requirement still necessary for infringement suit

Copyright issues for the 1990s

First Sale Doctrine

The copyright holder's right extend only to the first sale of a copy. For example, you buy a book and you (not the copyright holder) have sole rights for the resale, rental, lease or disposal of the copy you bought.

Computer programs and phonorecords are different. They cannot be rented, leased or lent for direct, commercial gain. Libraries and educational institutions are the only exceptions here as they can lend out materials many, many times. Certain restrictions apply to recordings and to computer programs, however. Because computer software programs are licensed (essentially you are renting a copy of the software from the company--it's not yours), the first sale doctrine does not apply. This has set an uncomfortable precedent for the doctrine. We may or may not see it continue into the next century.

Ideas and Facts

Ideas and facts are not copyrightable. It follows that just as a phone number or a street address is not copyrightable, a URL isn't copyrightable either. Is an HTML source code copyrightable? Perhaps the whole code in entirety because that shows the author's creativity, his or her unique creation. But the individual components of the source code are not copyrightable just as letters of the alphabet, numbers and individual words are not. It would be silly.

What about a list of URLs on a web page? Do the owners of those URLs have the right to bring suit against a web developer that posted their URLs on a web page? Probably not. Although it is proper netiquette to ask to link to a web page.

Fair Use

What is fair use? Fair use allows me as a teacher to show a video in class, distribute one to several photocopied pages of a book in class for you to read (I can't do this every semester and I can't make a copy of the entire book...) and to send you postings I find on the web or off a listserv. It allows you to make photoccopies of articles, parts of books and web pages as well as copy a cd to cassette tape. All for your own individual use. Fair use really speaks to the heart of the US Constitution when it speaks to promoting "the progress of science and useful arts". In the late 18th century Congress did not want to limit ideas, inventions and discoveries to just a few. Congress believed that for a nation to be strong it needed to spread around and share ideas, information, inventions, discoveries and opinions. Therefore, we all can make copies of things--videos, cassettes, articles, etc. for our own use. We just can't sell these copies and make a profit.

The Fair Use Test

The court looks at four factors to determine whether copyright was infringed. These are:

The purpose and the character of the use, including whether such use is of a commerical nature or is for nonprofit educational purposes The nature of the copyrighted work The amount and substantiality of the portion used in relation to the copyrighted work as a whole The effect of the use on the potential market for or value of the copyrighted work.

OK, let's go to the Copyright Website (www.benedict.com) to look at a lot of recent issues and lawsuits involving copyright.

by Susan E. Beck
New Mexico State University
Las Cruces, NM

You are welcome to use and copy these materials for educational purposes, but please credit the source as: LSC 311 Information Literacy, New Mexico State University, and cite the individual author of the modules you use. All commercial rights are reserved. Send comments or suggestions to: Susan E. Beck at susabeck@lib.nmsu.edu

L SC-311-02: Information Literacy Day 26, November 23, 1998