What does it mean to say that a text is copyrighted? The Library of Congress offers a basic review of copyright protection at its Web site. These notes are based on Federal law, Title 17, US Code. In particular, the author of an original work is given exclusive rights to do certain things with that work and others may not do any of those things unless the author has given them permission. At the same time, it is important to note that these exclusive rights are not unlimited. The doctrine of "fair use" suggests ways in which others can "fairly" do some things with an author's work without securing permission. While an author's copyright protection can be formally registered by submitting the text to the Library of Congress, Copyright Office, this is not necessary for copyright to apply; nor is it necessary for a work to be formally published. Copyright protection exists from the moment that a work is "fixed in a copy for the first time." While it is not necessary, it is strongly advised that the author call attention to his/her rights by including a standardized statement such as "copyright 1996 John Doe." Under current law, the copyright protection extends through the lifetime of the author plus fifty additional years.
What kinds of "original works" are automatically copyrighted? The Library of Congress lists "literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works." However, "these categories should be viewed quite broadly," according to the Library. Computer programs, for instance, are included in the category of "literary works" and maps, in the category of "pictorial . . . works."
What exclusive rights does the author possess automatically? Again, the Library lists certain things that only the author has a right to do. These are "to reproduce" the work, "to prepare derivative works," "to distribute copies" to the public, "to perform the copyrighted work publicly" where appropriate , and "to display the copyrighted work publicly" where appropriate. All of these features are spelled out in detail in Section 106 of Title 17. The problem with such comprehensive rights is that original works are largely intended for some kind of distribution or display in some community or in the public at large. Thus, when other people come to have knowledge of an author's work, they may naturally wish to use it in various ways and we are forced to ask what rights they may have gained with respect to its use. Such rights, if they exist, are necessarily limitations on the author's exclusive rights. One of the most interesting problems in understanding copyright protection lies in articulating this doctrine of "fair use."
Section 107 of Title 17 sets out the legal basis for the doctrine of "fair use" though its language leaves the matter in the hands of the courts to decide where actual lines are to be drawn. The law suggests that works may be fairly used for "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" without infringing upon an author's copyright. Furthermore, it suggests four criteria that should be considered in determining whether the use is fair. These are:
"(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit 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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."
Fair use can apply to unpublished works as well as to published ones, though this may require differences in the application of criterion #4, above. One area of great sensitivity has been the copying of works for classroom use. Section 107 contains a discussion of this issue and a joint declaration authored by the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision and several associations of authors and publishers. It is unclear what status this letter occupies in the law itself, but it certainly establishes a reference point for court decisions. While the letter suggests that multiple copies may be fairly made for classroom use, it restricts these in significant ways. According to the agreement, the copied material must be very brief (no more than 250 words of a poem and no more than 1000 words of prose and only one chart or graph or image from a single book or periodical). Furthermore, the copying must be "spontaneous," meaning that it is "inspired" so close to the time of use that securing permission would not be practical. Finally, there are specific restraints to what they call the "cumulative effect" of copying, limiting the number of instances per school term, etc. The agreement is specific in prohibiting copying that seeks to "substitute for anthologies" or that might "substitute for the purchase of books." It is fairly obvious that the agreement is strongly protective of the economic interests of authors and publishers.
The Concept of Property
In order to approach issues regarding copyright protection from the broadest conceptual base, let's begin by connecting copyrights with (real) property rights. The product of creative effort is viewed as someone's "intellectual property" and, hence, that person has full power to dispose of that property as she/he sees fit. The analog is "real property" which someone owns, has the exclusive rights of disposition for, and with respect to which can expect to receive the protection of the laws.
It is important to understand that property as such does not exist in nature. Land exists in nature. But when and how does land become property? Property is a social creation; it requires an understanding, an agreement, within a society. Early forms of "real property" were things that people created by altering nature. If one cultivated a plot of land and harvested crops, then one owned the crops as property; she/he who cultivated the land had exclusive rights to dispoe of the crops. No one else had a right to use the crops without permission. Property exists in a society because we all agree to respect these rights. It is essential in all of this, of course, to agree about how property can be created, held, used, and disposed of. In our country's history, how did vast stretches of prairie land in Illinois, for instance, become individual parcels of property? The concept of property and exclusive rights dumbfounded Native Americans who largely had no such agreements within their own societies.
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In the background of this whole discussion is the concept of loss or harm. If someone steals a farmer's crops, he has suffered a loss which has harmed him and his family. We all agree that he had a property right to the crops which should have been respected by all. When it comes to copyrights, then, the question is how one can suffer a loss or be harmed. When we can articulate this, then we have made some progress in understanding why intellectual products should be viewed as "property" with protective rights recognized by everyone in our society.
There is one area of loss that we can dispose of easily so let's consider that first. We believe that one should enjoy recognition for what one does. Part of the fabric of society is respecting each other for what we do and contribute. If I create something, then I should enjoy being known for that creation. If someone misrepresents a creation as his/her own, then the true creator has suffered a loss and been harmed by that person. Somewhere in school, everyone learns not to plagiarize; in fact, we learn to give credit even when we use another person's ideas and even if we do not use the exact text in which the ideas were presented. Simple honesty seems to dictate all of this.
The other kind of loss is much more complicated and this is where the problems arise. Is simple honesty about authorship all that we need to guide us and, if not, why not? Take an example. Smith writes a song. Jones performs the song before audiences all over the world and makes big money for his popular concerts. Jones fully acknowledges Smith as the songwriter; but Jones shares none of his concert income with Smith. Has Smith been harmed? The answer (in our society) is "yes" of course. Here we create things for more than just the pride of creation. Smith expects to earn a reasonable living by writing songs. When we understand a property right in a song, we understand that Smith has a right to dispose of the song just as much as he has a right to be respected in name as its creator. Smith can sell his permission to use the song --- e.g., to publish it in a song book, to record it on a CD, or to sing it in concert. One of the keys here is that the song book, the CD, and the concert are money making enterprises that use the song. Thus, Smith rightfully feels he should have a share of the income. If we use a person's creation in a way that brings money to us, then we owe a portion of that money to the creator.
We are now at the point where we can wade into the murky areas in between honesty about authorship and depriving an author of reasonable compensation. What if one uses a person's creation in a way that does not create income? Jones sings Smith's song at a charity concert and gets nothing for doing it. There is no income to share with Smith. Look at another timely example. Bob purchases a software package made by Ralph and then gives copies of it to all his friends. Bob does not collect money from anyone in doing this. Smith might seem a bit mean spirited if he demanded that the charity pay him royalties for the song's use; but most people would agree that Ralph has been cheated. In both cases, even though the intermediary has not profitted, the creator of the property has suffered a loss of potential income. Money went to the charity; the friends might have bought the software. On the other hand, Jones sings the song to a friend. Or Bob installs the software on his office computer as well as on his home computer. Again, no money is involved but, this time, has either author been deprived of potential income. Here is where the concept of "fair use" begins to make sense. Fair use lies in a realm where neither permission nor compensation are required.
Before exploring some examples, we should take note of the fact that the concept of fair use implies that the right of copyright is not unrestricted or unlimited. Is there any precedent for this? Of course, the answer is that very few rights defined in our society are held to be unrestricted or unlimited. Consider the right to own real property in a community. It is a rare community that would allow one to use that property in just any way that happened to occur to her/him. In my own community, my property right does not go far below ground; in particular, I do not possess the right to drill for and pump ground water. We have to ask, then, whether there are restrictions to what the creator of intellectual property can demand on the basis of copyright protection. In my opinion, it would be ridiculous to claim that there are no such restrictions; however, this is not a side of copyright law that gets discussed commonly.
Consider the following example. Roger has published a small volume of his poetry. Jane, who is a professor of literature, wants to write an essay in a scholarly journal discussing certain contemporary poets, Roger being one of her targets. In the most conservative interpretation, Jane cannot use any portion of Roger's poetry without his permission and, indeed, Roger could rightfully ask for royalty payment as part of giving his permission. Jane could only direct our attention to parts of Roger's poems by giving line numbers; we would have to purchase Roger's book if we wanted to know what Jane was saying. Would anyone really be happy in this situation? Surely Roger wants his poetry to be read and discussed. The concept of fair use in practice in academia suggests that Jane can quote portions of Roger's poems, without direct permission or payment, so long as she limits the quotes to small portions under critical discussion. Reproduction of a whole poem would not be fair use when it is being published in a journal article. On the other hand, what if Jane reproduces one of Roger's complete poems and distributes it to her class so that they can read and discuss it? Is this fair use? Roger's case is that the class members should buy his book; Jane's use costs him some potential sales. Jane's case is that the use is limited to only one of the poems in the book and only to a small number of people in her class; no one would have purchased the book anyway. Perhaps, indeed, by seeing the poem in class some students will become interested and actually buy the book.
It's clear that these arguments can be pushed in different directions. Does Roger have a right to payment if Jane merely reads the poem in class, for instance? Surely, what "fair use" means is that someone who purchases something like a book gains certain rights to use it and that these rights do restrict the author's copyright privileges. The author, in other words, does not have a continuing and unlimited right to make demands on the purchaser. Again, what really seems to define these limitations is where the author can reasonably show that she/he has been deprived of potential income by another person's act. (One may well ask, incidentally, what this principle might mean for authors of books that have gone out of print.) Unfortunately, the avenue through which this argument must proceed is the avenue of litigation; and that means that one will always take a certain risk in advancing any interpretation of what counts as "fair." This also tends to mean, given the high costs of litigation, that the concept will remain relatively untested and ill defined in areas where large amounts of damages cannot be claimed, leaving people pretty much on their own to interpret what should count as "fair use."
Let us conclude by asking how some of these issues connect with using the World Wide Web. It is not at all clear how we should interpret "fair use" when we are creating Web documents. It is extremely easy to download an image from some other Web site. What if I use this image on one of my own Web pages, giving proper credit to the URL from which it was taken? Do I have permission to do this? Do I need permission to do this? Should I assume that the fact that the person served the image on the Web implicitly grants permission for use? I see no more reason for assuming that than for a person publishing a book, e.g., of photographs. The Web takes a messy scene and multiplies the mess a hundred fold!
In the present situation, it is probably the case that no one should serve original material on the Web without explicitly stating the limits of "fair use." If I want to reproduce or serve something from the Web, then I should limit myself to the wishes expressed by the original author. But what if the author has carelessly expressed no wishes? I guess, at this point, I would have to say that anything goes. There is simply no legal or commonly understood standard. I do not believe that we should simply attempt to transport the copyright standards for published works into the Internet domain. The Internet needs to develop its own understanding of these matters. If we read Web materials carefully today, we will in fact see that this is already happening.
What is most worrisome in all this is the issue of serving materials on the Web that do not belong to you and that derive from sources other than the Web itself. In fact, most importantly, serving materials out of published books or articles is an issue that falls under standard copyright protection.
Some relevant Web sites: