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Copyright
he fundamental concepts of copyright law have existedfor two hundred years. Some of these basic copyrightprinciples are likely to continue to endure: maintainingthe intended purpose of copyright to fairly balance therights of the public for access to information with theincentives for creation; providing authors with exclu-sive rights but limiting what copyright protects and thetime period of copyright protection; and giving userscertain rights, such as fair use, that restrict the owner’s monopoly.
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Georgia K. Harper is IntellectualProperty Section Manager, Universityof Texas System Office of GeneralCounsel, Austin.
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E n d u r a n c e & C h a n g e
By Georgia K. Harper
The balance that copyright law hasachieved between the interests of copy-right owners and the interests of the publichas evolved slowly and has been only peri-odically adjusted. Today, however, the paceand the magnitude of change threaten toskew this balance to the point of collapse.Some of these changes—licenses, accesscontrols, certain provisions in the DigitalMillennium Copyright Act (DMCA)—havethe potential to drastically undermine thepublic right to access information, to com-ment on events, and even to share informa-tion with others.Since computer technology in one formor another is at the heart of these copyrightchanges, information technology profes-sionals need to understand not only thosebasic copyright principles that are likely toendure but also the direction that legalchange is taking us. What are the trends?How is the law changing, and what might itlook like in five to ten years? Will we beable to recognize it?
Purpose of Copyright
Our U.S. Constitution states the purpose ofcopyright in the clause that authorizesCongress to create the Copyright Act: toimprove our society through the advance-ment of knowledge.
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It probably makessense to most of us that providing an in-centive to creators will motivate them tocreate. The more things created, the betteroff our society will be. But creation is justthe first step. Those creations have to get“out there” if society is to benefit fromthem. The knowledge created has to be dis-seminated. People have to be able to accessit, both while it is fresh, for the ideas it con-tains, and later, when the exclusive rightsof the owner have “expired.” Once theowner’s term of protection is over, the par-ticular expression the owner used be-comes a part of our shared resource—a partof the public domain. The public domainis not a big black hole into which works“fall,” never to be seen or heard again.Rather, it is the repository for all the
expression that our copyright law wascreated to support, the expression thatwe are all free to use in any way wewish. The richness of this resourcesupports our developing wisdom, evenour democratic way of life. That’s apretty noble purpose. How does copy-right law achieve it?
Copyright Basics
What Does Copyright Protect?
Copyright protects only the uniqueways of expressing ideas. It does notprotect the underlying ideas. Anyonecan use the ideas in a work at any time, ifhe or she can get access to the work. Pro-tection requires a minimum amount ofcreativity. Examples of protected ex-pression, assuming they originate withthe author, are prose, poetry, music,painting, sculpture, architecture, soft-ware programming, diagrams, andgraphics. Any facts included in a pro-tected work are not themselves pro-tected, however.
When Does Copyright Protection Begin and End?
Today, protection begins at the momenta work is fixed in a tangible medium. Forexample, the work that you are readingwas protected the moment I hit the“save” key for the first time. This protec-tion is automatic. Nothing is needed tosecure it—no registration, no notice re-quirement. If, however, a copyrightowner wants to bring a lawsuit againstsomeone who is infringing a work, theowner must have registered the work.Registrations made before an infringe-ment or within the first three monthsafter a work is published entitle theowner to special statutory damageawards if the owner wins a lawsuit, in-cluding the right to have the infringerpay the attorney’s fees of the copyrightowner.It wasn’t always like this. Until 1978,the term of protection began when awork was published with the propercopyright notice. The work was pro-tected for a term of years that started outrather limited: 28 years for the “initialterm” and another 28 years for the “re-newal term.” That term has been length-ened repeatedly so that now, works pub-lished between 1923 and 1978 areprotected for 95 years. Certain worksthat were published before 1964 andwhose copyrights were not renewed by their owners received only the first 28- year term of protection. Their copy-rights have all expired. Works published after 1978 have adifferent term: the life of the author plus70 years. Works for hire are protectedfor 95 years from the date of publicationor 120 years after creation, whichever isshorter.Finally, the copyright law before 1978did not protect unpublished works at all.Those works first acquired federal pro-tection in 1978, but their terms arecounted differently: they are protectedfor the longer of the life of the authorplus 70 years or until December 31, 2002.There is a wonderful chart online—maintained by Laura Gasaway at theUniversity of North Carolina at ChapelHill—that shows these various terms in aformat that makes it easy to determine ifa work is still protected.
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What Does Copyright Mean to Owners?
Copyright law gives owners a set of ex-clusive rights for the term of protection,but how does one know whether he orshe is the owner of a work? In a univer-sity setting, this can be a very difficultquestion to answer.The first principle of ownership isthat the author will normally be theowner of a work he or she creates. Thesecond principle is that two or moreauthors may be joint authors and jointcopyright owners of a work. This sec-ond principle applies only wheneach author contributes copyrightableexpression (see above) and, at the timeof the contribution, each intends his orher contribution to be part of a unifiedwhole and intends to be joint authorswith the others. This intent require-ment can be a big problem. One of anumber of authors might have theintention that others’ contributionsdo not make them joint authors; thisone author’s intention will make itimpossible for the other authors toprevail on a claim that they are jointauthors. Thus it is very important toaddress the issue of ownership of col-laborative works—a common type ofwork in a university environment—upfront, before writing progresses andcontributors are disappointed.The third principle of ownership isthat under special circumstances, an em-ployer of a creator will be the author ofthe work, rather than the creator. This iscalled “work for hire,” and there are twoways it comes about: (1) employers ownthe work of their employees within thescope of employment, and (2) a personwho hires someone to create somethingfor the hirer will be the author and ownerof the creation if the hirer and the creatorhave a signed contract that identifies thework as work for hire and if the work ac-tually fits within one of the ten statutory categories for contractual works for hire.Since this second branch of the work-for-hire doctrine is hard to satisfy, hirers willusually ask the creator of a work to assignthe copyright to the hirer in case the re-quirements of the work-for-hire doctrineare not met. That way, the hirer will ownthe work as an assignee, at least, if not asthe author of the work.By itself, no amount of money paidfor the creation of a work will cause theparty paying the money to own thecopyright in the work. There are only these few ways to become an author orowner: create the work oneself or jointly with others; employ the creator and besure the work is within the scope of theemployee’s duties; hire the creator andsatisfy the rigorous requirements of thework-for-hire statute; or secure an as-signment of the creator’s copyright. An author’s exclusive rights includethe right to make copies, create deriva-tive works, authorize others to exercisethe author’s rights, and publicly distrib-ute, display, and perform works. Certainauthors also have rights of integrity andattribution, our version of “moralrights.” These apply to original artworksand limited editions of two hundred orfewer prints.
What Does Copyright Mean to Users?
The rights of copyright owners are ex-clusive, meaning that only the ownersmay exercise them, but they are not un-limited. Many provisions of the Copy-right Act place important limits on theowner’s rights. Those of special impor-tance to the university community in-clude the following: Section 107, per-
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