Transcript Intellectual Property Law and the Arts A Discussion of

Intellectual Property Law and the
Arts
A Discussion of Copyright Law,
Its History and Its Relationship to Twenty-First
Century Creativity
Rick Shriver
Ohio University
2008
A Brief Pre-History of Copyright
• Prior to the invention of the printing press,
printed matter was the nearly exclusive
domain of the literate nobility
• Printed materials were rare, expensive
and of no interest to the largely illiterate
populace
A Brief Pre-History of Copyright
• The invention of the movable type press
made literacy a worthwhile endeavor
• Precipitated the need for copyright
protection
• Inexpensive copies of the limited literary
works, including the Bible
• The interests of the publisher, not the
creator (author), were paramount
A Brief Pre-History of Copyright
• In the sixteenth century monopolies were
granted to certain publishers for a period
of two years, during which they had the
exclusive rights to publish specified works
A Brief Pre-History of Copyright
• The modern copyright can be traced to the
“copyright act of 1709,” or “Statute of
Anne”
• The Statute of Anne extended copyright
protection for 14 years to the authors of all
newly created works, and the copyright
was renewable for an additional 14 year
term, for a total of 28 years
A Brief Pre-History of Copyright
• The first piece of legislation in the United
States which specifically addressed
intellectual property rights was the
Copyright Act of 1790
• The Copyright Act of 1909 offered the first
significant update of the 1790 Act
• Works created prior to 1976 are still
governed by the provisions of the 1909 Act
The Copyright Act of 1976
• The 1976 Act provides the foundation for
all present intellectual property rights in
the United States
• Extended copyright protection to
recordings, motion pictures and other
twentieth century technologies
• Extended the period of copyright
protection to the lifetime of the creator,
plus fifty years after the creator’s death
The Copyright Act of 1976
• Articulated the doctrine of “fair use”
• Included the consideration of the effect of
the use, not just its intent
The Copyright Term Extension Act
of 1998
• “The Sonny Bono Copyright Extension
Act”
• The “Mickey Mouse” protection act
• Extends copyright protection to the life of
the author plus 70 years
• Extended copyright protection for works
that were published before 1978, and that
were still protected by copyright in 1998
The Digital Millennium Copyright
Act (1998)
• An effort to bring the U.S. into compliance
with World Intellectual Property
Organization (WIPO) treaties
– Title I requires that analog video recorders are
equipped with a copy protection technology
– Title II creates a so-called “safe harbor” for
online providers
– Title II also provides for “take down notices”
The Digital Millennium Copyright
Act (1998)
– Title III allows computer repairers to make
temporary copies (backups) of copyrighted
materials while working on computers
– Title IV includes provisions for distance
education, for libraries keeping copies of
sound recordings, and for “ephemeral
recordings” for the purposes of broadcast or
re-transmission
Fair Use
• May be the most erratically interpreted
aspect of copyright, therefore frequently
raising concerns over its chilling effect on
technologies and free speech
Fair Use
• According to U. S. Code fair use must consider:
(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes
(2) the nature of the copyrighted work
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole
(4) the effect of the use upon the potential market for or
value of the copyrighted work.
Fair Use
• It is illegal for a consumer to rent a DVD
and invite six friends to view it
• It is illegal for a consumer to copy a CD for
a friend’s listening
• The use of an entire work for profit is legal
when the use is parody
• The courts have permitted the videotaping
of entire programs
Common Law Copyright
• Common law copyright doctrine posited
that the mere act of creation granted rights
to the creator
• Once the work is “fixed,” or takes on some
tangible form, the work is protected
• Adding a notice may strengthen the rights
of the creator
Trends in Regulation
• Accommodating technological change
– transmission and broadcasting, sound
recordings, video recordings, computer
software, satellite transmissions and Internet
content
• Accommodating changing lifestyles of the
American consumer
– copying recordings for personal use,
recording broadcasts for time-shifting, and
duplicating software for back-up
Trends in Regulation
• Allowable uses of copyrighted materials in
education have broadened acknowledging of the role of technology in
instruction
• Better understanding of technology
– Copy protection schemes
– Allowances to “re-transmit” radio broadcasts
in restaurants and bars
Trends in Regulation
• “Sampling” and the doctrine of “de
minimis” use
– the use of very small fragments of existing
protected materials
– lacks the specifics of how many seconds or
beats are allowable
International
• Cultural differences
– intellectual property is the property of the
community, and not for the benefit of the
individual
• Low risk to benefit ratio
• High cost of coveted American-made
products
– U.S. media conglomerates are seen as
profiteering global monopolies
International
• U.S. became a signatory to the Berne
Conventions in 1998
• U.S. joined the World Intellectual Property
Organization (WIPO)
• The United States incorporated the WIPO
treaty into the DMCA in 2000
Attitudes
• Trends toward a more restrictive legal
framework
• Evidence of a backlash
– A new generation of creative professionals
encouraging file sharing, development of
open source software, and creation of works
for the public domain.
Attitudes
• In the music industry, many emerging
artists are offering their music free to webbased consumers
• Reacting to what has become the “music
industry establishment”
• More contemporary musicians view
recorded music as part of marketing, with
the real revenue stream coming from
concert tickets sales and merchandising
Attitudes
• Open source software has steadily grown
• A reaction to the power and control of
giant hardware and software
manufacturers, who are seen as
controlling the computer industry
• Electronic Frontier Foundation (EFF)
argues against the chilling effect that
restrictive intellectual property law has on
creative endeavor
Summary
• Protection of ownership shifted to the
author/creator
• Copyright protections extended for longer
periods of time
• More rights to the creator
• More restrictions on the uses of creative
materials
• Embrace technological change
Summary
• Specificity in defining allowable uses of
protected material
• U.S. has become a partner in international
agreements
• Some view the restrictions on copyrighted
materials as inhibiting free speech
• Progressively more complex technology
and increasingly high profits will assure
that copyright law will continue to evolve