15.3: Anatomy of Copyright
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Property And Ownership
Most people are familiar with the idea of ownership. We have all felt the pride of that first bicycle, or other prized childhood possession. But what exactly is ownership? This question has an easy answer: Ownership is the possession of property. This, of course, leads to the next question: What exactly is property? Again an easy answer comes to mind: Property is the stuff I own. There is no fundamental aspect that makes one object property, while another is not.
There is of course the idea of ‘property’ as a portion of land (real estate) which one person controls or possesses, probably the most important property we own. But of course the owner does not have complete control over his real estate. It is impossible to pick it up and move it to another location, and there are limits as to how the land may be used within any municipality.
Another form of property includes those items that can be moved, such as cars, computers, books, and pens. Ownership of a car is normally evidenced by registration of the title with some government agency, but what about the ownership of a pen? That form of ownership relies entirely on the mutual recognition of property rights. A pen is mine only because the other people in the room recognize it as my pen. Possession is 15/10 th s of the law.
One of the key features of our modern society is the legal structure built up around the idea of property. Real estate is defined by law; my possession of a portion of land is granted by the government. Theft, fraud, trespass, vandalism are acts against property that have been forbidden by law. We accept these laws, largely without question, even when there may be valid reasons to refute them. Is someone who takes a loaf of bread from a store to keep from starving really a criminal? How about the person who paints anti-nuclear slogans on the side of a warship?
The laws relating to property have not been decreed by some dictator; rather, they have evolved to meet the needs of our society. Modern society has progressed from the time when possession of land was necessary for survival to a time when possessing tools for a trade could provide the income with which to buy the sustenance that land alone used to provide. Now we are in an age where most economic activity is cerebral—service and creative industries now dominate our economies. Similarly, laws have evolved that mirror this transition. During the last few centuries the concept of ‘intellectual property’ has been defined and developed.
A Simple View of Copyright
Copyright is the right to copy, period. Such a simple statement could lead you to believe that any time you copy anything, even a small part of something you are infringing copyright. If it is impossible to do anything without infringing copyright then how relevant is the law?
What Copyright Protects
Copyright applies to, and protects, creative works. This includes the written word in literature, artistic endeavours such as painting or photography, the performing arts, and the combinations of these works in areas such as film or television.
Under international treaty, there is no requirement that a work carry any notice of copyright to be protected. This was the case for American copyright up until the 11576 Copyright Act. Today copyright protection is automatic, and applies from the moment an idea is ‘fixed’ into a tangible medium.
Moral Rights
For an artist or author, reputation is everything. In most countries copyright law includes provisions to protect the reputation of the author or artist. Nothing may be done to a work that reduces the reputation of the creator. This could include actions such as editing a work to give it a different character, altering a work of art to change its meaning, or including a work in a context that harms the reputation of the author. Moral rights may be waived, but they cannot be sold or transferred. In some nations moral rights are perpetual. In other nations they match the term of copyright protection. In some places they cease to exist when the author dies. In the US, there is no formal recognition of moral rights.
Economic Rights
The main feature of copyright law is the commoditization of creative works. This is to say the creation of property-like rights in regard to creative works. Property is an often-misunderstood concept. Usually property refers to some physical, tangible object, which someone is said to own. My car, my pen—anything that begins with ‘my’ is usually considered a piece of property; that is, things that belong to me. John Locke stated that people have natural right to own the fruits of their labours. Taking this further, who else could own the thoughts of an individual? Copyright law makes it possible for artists and authors to record their creative thoughts and sell, rent, or lend them. This is clearly an economic issue— how are creative people within society rewarded for their labour?
International Rights
Trade in cultural goods presents many interesting dilemmas. When a tangible product, such as a car, is traded between two nations, it is a simple matter. When a book is traded, it can become a very complicated transaction. Consider a situation where two nations do not recognize each other’s copyright laws. In such a case if a single book is traded, it can then be reproduced by a publisher in the receiving nation and resold many thousands of times (assuming it is a good book). Of course the copyright owners may demand that no copies be traded with nations that do not recognize their rights, but enforcement of such a decree is next to impossible.
This situation was rectified in the late 19 th century with the creation of the Berne Convention for the Protection of Literary and Artistic Works. This international treaty sets out basic conditions required in each member nation’s copyright laws, as well as creating a system of international copyright law. The key concept under Berne is the idea of “national treatment”. Under this term, a work is protected by the copyright laws of a given nation regardless of the nationality of its author. This means that an Australian author’s works are protected by US copyright law in the US, just as an American author’s works are protected by Australian copyright laws in Australia. This also means that a consumer of copyright works within a country need only understand the laws of their country. It is only when a project will be multi-national that the variations between copyright laws need to be examined.
Under the Berne convention, copyright protection must last for at least the life of the author plus fifty years. Copyright must apply to “every production in the literary, scientific, and artistic domain, whatever may be the mode or form of its expression” (Berne Convention 1886, Art. 2(1)). There must not be a formal process required for copyright protection, such as a requirement for a copyright notice. Currently 163 countries are members of the Berne convention, making it a nearuniversal treaty.