Intellectual Property - Copyrights

COPYRIGHTS

Copyright protects a creator's or copyright owner's rights to control the publication, performance, duplication, and profitability of created works. Such works include literature, musical compositions, choreography, graphic and fine arts, motion pictures, and sound recordings. U.S. copyright protects the expression of ideas, rather than ideas themselves; it arises automatically when a creative work is expressed (or "fixed") in a tangible medium. Though registration for copyright is optional, creators cannot file suit for infringement without having registered. Copyright owners can sue for damages and courts can issue injunctions to prevent further infringement.

Limitations on copyright protection include the unauthorized "fair use" of a work by others for noncommercial purposes such as criticism, comment, news reporting, teaching, or research. Under the "first sale doctrine," libraries and archives may generate one copy of a work for archival conservation and the owner of a copy of a work may sell, lend, or dispose of that copy. Finally, all works in the public domain may be freely duplicated, performed, and distributed.

U.S. copyright laws must maintain the difficult balance between protecting creators' rights to control and derive compensation for their works and society's right to free access and spread of information. That the Internet enables users anywhere to produce essentially identical copies of any digital content and disseminate them throughout the world at virtually no cost has significantly raised the stakes of copyright protection.

The Copyright Clause of the U.S. Constitution provides that: "Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Even unintentional or accidental violation of these rights may be prosecuted.

The basic provisions of American copyright law are set forth in the Copyright Act of 1976. In addition to traditionally recognized creative works, the Act also protects online text, image, and sound files. Copyright holders may bring civil suits or the federal government may prosecute the intentional infringement of copyright committed for commercial advantage or financial gain. Besides direct infringement, contributory infringement and vicarious liability, through which one person aids another in carrying out copyright infringement, can constitute criminal liability.

Several subsequent copyright laws affect copyright in cyberspace. In 1992, the Copyright Felony Act targeted computer software piracy; earlier, only unauthorized copying of sound recordings, motion pictures, or audiovisual works constituted federal copyright felonies. The Digital Performance Right Act of 1996 required that anyone wishing to use non-original music for public digital performance on a Web site obtain license from the copyright owner.

In 1997, the No Electronic Theft (NET) Act abandoned the requirement that intentional infringement be committed for financial gain in order to be prosecutable. This criminalized even infringement carried out simply to harm another. Some commentators suggested that henceforth, since online browsing involves copying in the statutory sense, anyone who browses copyrighted content without permission could be guilty of actionable copyright infringement.

Congress enacted the Digital Millennium Copyright Act (DMCA) of 1998 to further amend U.S. copyright law in light of Internet-related concerns. The Act aligned U.S. legislation more closely with international copyright legislation as embodied in the World Intellectual Property Organization's (WIPO) Copyright Treaty. In addition, it prohibited anyone from circumventing technology intended to block unauthorized access to copyrighted material on the Web, such as decrypting protected content. The DMCA does permit authorized institutions to make up to three digital copies for preservation and to electronically "loan" those copies to other institutions.

At the state level, the Uniform Computer Information Transactions Act (UCITA) has been under consideration by state legislatures since 1999. It limits fair use rights of copyrighted digital materials, and classifies software and software-related products as "licensed information." UCITA faced stiff opposition from many state Attorneys General, the American Intellectual Property Association, and advocacy groups representing consumers, publishers, newspapers, libraries, retail, and law professors, who warn that UCITA's insistence on widespread digital-content licensing could severely erode legitimate fair use exceptions of online content, since licenses can contain clauses regulating the manner and time period for which the content can be accessed, and limit who can use it.

Still, the law on the Internet and copyright remains unclear. Several areas of particular confusion are:

• Whether a specific online work is original enough to merit copyright protection—articles, essays, and many graphic or sound works usually are, but factual content and databases may not be.
• Which specific Internet-related activities constitute copyright violations. Does uploading hard copies to the Internet, forwarding online content to a listserv, or linking to another Web site constitute infringement or fair use?
• Does an author's consent to having his or her creation put onto the Web imply tacit agreement to users browsing, downloading, and forwarding copies of their work?
• What is the liability of internet service providers (ISPs) and bulletin board operators for possible copyright infringements committed by their subscribers? Can they be sued for unintentional, vicarious liability?

Intellectual property rights in higher education was an area of particular concern, raising questions about who owns rights to online course content, lectures, and e-publications. In cyberspace, traditional fair-use exceptions regarding copyrighted materials may not protect free access to online materials for academic purposes. Libraries may not enjoy the right of "first sale"—which traditionally permits them to purchase works and then lend them to borrowers—when it comes to e-materials.

The Clinton administration's Information Infrastructure Task Force Working Group on Intellectual Property Rights encapsulated a series of sweeping policy recommendations in a 1995 report, "Intellectual Property and the National Information Infrastructure." The report detailed emerging trends and proved highly influential in shaping U.S. domestic and foreign intellectual property initiatives. Among its conclusions, the report argued that browsing and distributing content without the creator's explicit permission violates the Copyright Act. It also called for the creation of copyright holders' exclusive rights to control the transmission of their copyrighted digital content. The report spurred controversy, with opponents claiming that these copyright extensions harmed the public interest in the free flow of information. Proponents, however, noted that creators and copyright holders have much more precarious control over their works in cyberspace than they do in the real world.