15.4: What Copyright Does Not Protect
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Copyright is not absolute. There are many situations where copyright protection is either nonexistent or limited. The exceptions and exclusions to copyright law are critical tenets of the law. Copyright is not a system of censorship. It is not intended as a tool to suppress debate or criticism. Unfortunately this principle has not always been adhered to.
Copyright is not intended as a system to confine or restrain culture, although certain groups have attempted to do just that. Copyright law attempts to grant rights to the authors and artists, while balancing the rights of readers, art lovers, and other creators.
To be protected by copyright a work must be significant, not in terms of its impact on society, but in proportion to the entire work. A small quotation is not likely to be protected by copyright, unless of course it is the kingpin in an entire work. There is a story circulating regarding a request for clarification on what constitutes a significant portion of a work made to a major publisher. The response came back that every word copied from one of the publisher’s books should be cleared before being re-used. The question then is, what about the word “the”?
Copyright protects creative works; that is, it enables an author or artist to collect an income from their ideas. Facts have no author, or if they did, the author exercised no creativity. Facts are clearly not protected by copyright. But what if there is some form of creativity involved in the collection or presentation of those facts? In such a case the work in its entirety would be protected, but each underlying fact would still be unprotected.
Copyright protects the expression of an idea, not the idea itself. For a work to be protected it must be “fixed”, that is, recorded in some physical form. Many of Disney’s movies have been based on public domain fairy tales. From Cinderella to Aladdin, Disney has used these public domain tales as the basis for feature length animated films. If copyright law protected both the expression and the idea underlying the expression, then Disney would now hold rights to these tales. While Disney does hold certain rights to their creations, those rights are limited only to the exact expression fixed in their movies. Without this critical aspect it would be impossible to maintain any balance between creators and the public.
Most copyright legislation recognizes that certain uses of copyright material benefit society as a whole. Education is a classic example. The better educated a society is, the more well off its members can expect to be.
Criticism of a work or body is considered to be in the public good. It is considered beneficial to debate important issues; as well, it is often necessary to infringe the copyright of a person or persons to reveal their intentions to the public in general. The courts in many jurisdictions have recognized this and created jurisprudence that protects such uses. There are clauses in many copyright laws specifically stating that copying for the purpose of criticism is not a copyright infringement. Consider the difficulty in gaining permission from a copyright owner to use their work in a manner which will portray them in a negative manner. There have been cases where entire works have been reproduced, and the courts declared that no infringement occurred.
It is unfortunate that most of these exemptions are not stated as a positive right; rather they are defensive in nature. The best legal arguments may protect you in court, but they do very little to protect you from being brought to court in the first place. Many times a person has copied protected work in a manner that is fair, and in the public good, however when faced with a lawsuit from the rights holder they are forced to concede, and cease their use of the material. It’s not the person with the legal right who wins, it’s the person wit the deepest pockets.