Intellectual Property Law and the Intellectual Property Law and the ArtsArts

A Discussion of Copyright Law, A Discussion of Copyright Law, Its History and Its Relationship to Twenty-First Its History and Its Relationship to Twenty-First

Century CreativityCentury Creativity

Rick ShriverRick Shriver

Ohio UniversityOhio University

20082008

A Brief Pre-History of CopyrightA Brief Pre-History of Copyright

• Prior to the invention of the printing press, Prior to the invention of the printing press, printed matter was the nearly exclusive printed matter was the nearly exclusive domain of the literate nobility domain of the literate nobility

• Printed materials were rare, expensive Printed materials were rare, expensive and of no interest to the largely illiterate and of no interest to the largely illiterate populacepopulace

A Brief Pre-History of CopyrightA Brief Pre-History of Copyright

• The invention of the movable type press The invention of the movable type press made literacy a worthwhile endeavor made literacy a worthwhile endeavor

• Precipitated the need for copyright Precipitated the need for copyright protection protection

• Inexpensive copies of the limited literary Inexpensive copies of the limited literary works, including the Bible works, including the Bible

• The interests of the The interests of the publisherpublisher, not the , not the creator (author), were paramount creator (author), were paramount

A Brief Pre-History of CopyrightA Brief Pre-History of Copyright

• In the sixteenth century In the sixteenth century monopolies were monopolies were granted to certain publishers for a period granted to certain publishers for a period of two years, during which they had the of two years, during which they had the exclusive rights to publish specified works exclusive rights to publish specified works

A Brief Pre-History of CopyrightA Brief Pre-History of Copyright

• The modern copyright can be traced to the The modern copyright can be traced to the “copyright act of 1709,” or “Statute of “copyright act of 1709,” or “Statute of Anne” Anne”

• The Statute of Anne extended copyright The Statute of Anne extended copyright protection for 14 years to the protection for 14 years to the authorsauthors of all of all newly created works, and the copyright newly created works, and the copyright was renewable for an additional 14 year was renewable for an additional 14 year term, for a total of 28 years term, for a total of 28 years

A Brief Pre-History of CopyrightA Brief Pre-History of Copyright

• The first piece of legislation in the United The first piece of legislation in the United States which specifically addressed States which specifically addressed intellectual property rights was the intellectual property rights was the Copyright Act of 1790 Copyright Act of 1790

• The Copyright Act of 1909 offered the first The Copyright Act of 1909 offered the first significant update of the 1790 Act significant update of the 1790 Act

• Works created prior to 1976 are still Works created prior to 1976 are still governed by the provisions of the 1909 Act governed by the provisions of the 1909 Act

The Copyright Act of 1976The Copyright Act of 1976

• The 1976 Act provides the foundation for The 1976 Act provides the foundation for all present intellectual property rights in all present intellectual property rights in the United States the United States

• Extended copyright protection to Extended copyright protection to recordings, motion pictures and other recordings, motion pictures and other twentieth century technologies twentieth century technologies

• Extended the period of copyright Extended the period of copyright protection to the protection to the lifetime of the creatorlifetime of the creator, , plus fifty years after the creator’s death plus fifty years after the creator’s death

The Copyright Act of 1976The Copyright Act of 1976

• Articulated the doctrine of “fair use” Articulated the doctrine of “fair use”

• Included the consideration of the Included the consideration of the effecteffect of of the use, not just its intent the use, not just its intent

The Copyright Term Extension Act The Copyright Term Extension Act of 1998of 1998

• ““The Sonny Bono Copyright Extension The Sonny Bono Copyright Extension Act” Act”

• The “Mickey Mouse” protection act The “Mickey Mouse” protection act

• Extends copyright protection to the life of Extends copyright protection to the life of the author plus 70 years the author plus 70 years

• Extended copyright protection for works Extended copyright protection for works that were published before 1978, and that that were published before 1978, and that were still protected by copyright in 1998 were still protected by copyright in 1998

The Digital Millennium Copyright The Digital Millennium Copyright Act (1998)Act (1998)

• An effort to bring the U.S. into compliance An effort to bring the U.S. into compliance with World Intellectual Property with World Intellectual Property Organization (WIPO) treaties Organization (WIPO) treaties – Title I Title I requiresrequires that analog video recorders are that analog video recorders are

equipped with a copy protection technology equipped with a copy protection technology – Title II creates a so-called “safe harbor” for Title II creates a so-called “safe harbor” for

online providers online providers – Title II also provides for “take down notices”Title II also provides for “take down notices”

The Digital Millennium Copyright The Digital Millennium Copyright Act (1998)Act (1998)

– Title III allows computer repairers to make Title III allows computer repairers to make temporary copies (backups) of copyrighted temporary copies (backups) of copyrighted materials while working on computers materials while working on computers

– Title IV includes provisions for distance Title IV includes provisions for distance education, for libraries keeping copies of education, for libraries keeping copies of sound recordings, and for “ephemeral sound recordings, and for “ephemeral recordings” for the purposes of broadcast or recordings” for the purposes of broadcast or re-transmissionre-transmission

Fair UseFair Use

• May be the most erratically interpreted May be the most erratically interpreted aspect of copyright, therefore frequently aspect of copyright, therefore frequently raising concerns over its chilling effect on raising concerns over its chilling effect on technologies and free speech technologies and free speech

Fair UseFair Use

• According to U. S. Code fair use must consider:According to U. S. Code fair use must consider:(1) the purpose and character of the use, including (1) the purpose and character of the use, including

whether such use is of a commercial nature or is for whether such use is of a commercial nature or is for nonprofit educational purposes nonprofit educational purposes

(2) the nature of the copyrighted work(2) the nature of the copyrighted work

(3) the amount and substantiality of the portion used in (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole relation to the copyrighted work as a whole

(4) the effect of the use upon the potential market for or (4) the effect of the use upon the potential market for or value of the copyrighted work. value of the copyrighted work.

Fair UseFair Use

• It is illegal for a consumer to rent a DVD It is illegal for a consumer to rent a DVD and invite six friends to view it and invite six friends to view it

• It is illegal for a consumer to copy a CD for It is illegal for a consumer to copy a CD for a friend’s listening a friend’s listening

• The use of an entire work The use of an entire work for profitfor profit is legal is legal when the use is parody when the use is parody

• The courts have permitted the videotaping The courts have permitted the videotaping of entire programsof entire programs

Common Law CopyrightCommon Law Copyright

• Common law copyright doctrine posited Common law copyright doctrine posited that the mere act of creation granted rights that the mere act of creation granted rights to the creator to the creator

• Once the work is “fixed,” or takes on some Once the work is “fixed,” or takes on some tangible form, the work is protected tangible form, the work is protected

• Adding a notice may strengthen the rights Adding a notice may strengthen the rights of the creator of the creator

Trends in RegulationTrends in Regulation

• Accommodating technological change Accommodating technological change – transmission and broadcasting, sound transmission and broadcasting, sound

recordings, video recordings, computer recordings, video recordings, computer software, satellite transmissions and Internet software, satellite transmissions and Internet content content

• Accommodating changing lifestyles of the Accommodating changing lifestyles of the American consumer American consumer – copying recordings for personal use, copying recordings for personal use,

recording broadcasts for time-shifting, and recording broadcasts for time-shifting, and duplicating software for back-up duplicating software for back-up

Trends in RegulationTrends in Regulation

• Allowable uses of copyrighted materials in Allowable uses of copyrighted materials in education have broadened - education have broadened - acknowledging of the role of technology in acknowledging of the role of technology in instruction instruction

• Better understanding of technology Better understanding of technology – Copy protection schemes Copy protection schemes – Allowances to “re-transmit” radio broadcasts Allowances to “re-transmit” radio broadcasts

in restaurants and barsin restaurants and bars

Trends in RegulationTrends in Regulation

• ““Sampling” and the doctrine of “de Sampling” and the doctrine of “de minimis” use minimis” use – the use of very small fragments of existing the use of very small fragments of existing

protected materials protected materials – lacks the specifics of how many seconds or lacks the specifics of how many seconds or

beats are allowable beats are allowable

International International

• Cultural differences Cultural differences – intellectual property is the property of the intellectual property is the property of the

community, and not for the benefit of the community, and not for the benefit of the individual individual

• Low risk to benefit ratio Low risk to benefit ratio • High cost of coveted American-made High cost of coveted American-made

products products – U.S. media conglomerates are seen as U.S. media conglomerates are seen as

profiteering global monopolies profiteering global monopolies

InternationalInternational

• U.S. became a signatory to the Berne U.S. became a signatory to the Berne Conventions in 1998 Conventions in 1998

• U.S. joined the World Intellectual Property U.S. joined the World Intellectual Property Organization (WIPO) Organization (WIPO)

• The United States incorporated the WIPO The United States incorporated the WIPO treaty into the DMCA in 2000 treaty into the DMCA in 2000

AttitudesAttitudes

• Trends toward a more restrictive legal Trends toward a more restrictive legal framework framework

• Evidence of a backlash Evidence of a backlash – A new generation of creative professionals A new generation of creative professionals

encouraging file sharing, development of encouraging file sharing, development of open source software, and creation of works open source software, and creation of works for the public domain. for the public domain.

AttitudesAttitudes

• In the music industry, many emerging In the music industry, many emerging artists are offering their music free to web-artists are offering their music free to web-based consumers based consumers

• Reacting to what has become the “music Reacting to what has become the “music industry establishment” industry establishment”

• More contemporary musicians view More contemporary musicians view recorded music as part of marketing, with recorded music as part of marketing, with the real revenue stream coming from the real revenue stream coming from concert tickets sales and merchandising concert tickets sales and merchandising

AttitudesAttitudes

• Open source software has steadily grownOpen source software has steadily grown• A reaction to the power and control of A reaction to the power and control of

giant hardware and software giant hardware and software manufacturers, who are seen as manufacturers, who are seen as controlling the computer industrycontrolling the computer industry

• Electronic Frontier Foundation (EFF) Electronic Frontier Foundation (EFF) argues against the chilling effect that argues against the chilling effect that restrictive intellectual property law has on restrictive intellectual property law has on creative endeavor creative endeavor

SummarySummary

• Protection of ownership shifted to the Protection of ownership shifted to the author/creator author/creator

• Copyright protections extended for longer Copyright protections extended for longer periods of time periods of time

• More rights to the creator More rights to the creator

• More restrictions on the uses of creative More restrictions on the uses of creative materials materials

• Embrace technological change Embrace technological change

SummarySummary

• Specificity in defining allowable uses of Specificity in defining allowable uses of protected material protected material

• U.S. has become a partner in international U.S. has become a partner in international agreements agreements

• Some view the restrictions on copyrighted Some view the restrictions on copyrighted materials as inhibiting free speechmaterials as inhibiting free speech

• Progressively more complex technology Progressively more complex technology and increasingly high profits will assure and increasingly high profits will assure that copyright law will continue to evolve that copyright law will continue to evolve