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Copyright: Definition, History, and Current Law 

Copyright: Definition, History, and Current Law
Ethical and Legal Considerations

Annette Flanagin

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Copyright: Definition, History, and Current Law

Copyright is a term used to describe the legal right of authors to control the communication and reproduction of their original works of authorship.1,14 Thus, copyright law provides for the protection of rights of parties involved in the creation and dissemination of intellectual property. While a variety of people and entities derive benefits from copyright laws (authors, publishers, editors, composers, artists, and the producers of television and radio programs, films, sound recordings, video, computer programs, and software), few thoroughly understand the law and its basic applications. This section discusses current copyright laws and applications in scientific publishing. Copyright laws, scope, and protections vary by country (see also 5.6.12, International Copyright Protection). The discussion in this section addresses US copyright law except where specifically indicated. This section is intended to explain copyright law as it applies to scientific publication; it is not intended to serve as legal advice. A media lawyer should be consulted for any specific concerns about rights, protections, infringements, or remedies.

Copyright is a form of legal protection provided to the author of published and unpublished original works.14(§102,§104),37 The author, or anyone to whom the author transfers copyright, is the owner of copyright in the work. Current law gives the owner of copyright the following exclusive rights:

  • To reproduce the work in copies

  • To prepare derivative works based on the copyrighted work

  • To distribute, perform, or display the work publicly

A copyrightable work must be fixed in a tangible medium of expression and includes the following14(§102),38:

  • Literary works (which includes computer software and works produced in digital formats)

  • Musical works

  • Dramatic works

  • Pantomimes and choreographic works

  • Pictorial, graphic, and sculptural works

  • Motion pictures and other audiovisual works

  • Sound recordings

  • Architectural works

The following are not protected by copyright, although they may be covered by patent and trademark laws14(§102),37 (see 5.6.15, Patents, and 5.6.16, Trademark):

  • Works not fixed in tangible form of expression (eg, speeches or performances that have not been written or recorded)

  • Titles

  • Names

  • Short phrases

  • Slogans

  • Familiar symbols or designs

  • Mere variation of typographic ornamentation, lettering, or coloring

  • Mere listings of ingredients or contents

  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, and devices, as distinguished from a description, explanation, or illustration (although ideas or procedures may not be protected by copyright, the written or published expression of ideas and procedures may be subject to copyright protection)

  • Works consisting entirely of information that is common property and containing no original authorship (eg, calendars, height and weight charts, rulers, and lists or tables taken from public documents or other common sources)

Some of the more common provisions of US copyright law as well as problems encountered by scientific authors, editors, and publishers are discussed in sections 5.6.4 through 5.6.11.

History of Copyright Law.

Copyright law evolved after Gutenberg’s movable type reduced the cost and labor required to make copies of written and printed works.1,38,39 During the early 18th century, copyright became the mediator between the author or publisher and the marketplace. In 1710, England created the Statute of Anne, the first copyright act, which addressed exact copies only. Article 1, section 8, of the US Constitution, enacted in 1798, serves as the foundation for US copyright law.40 Since then, the US law has undergone a number of updates and general revisions in response to innovations and changes in technology, to broaden the definition and scope of copyright law, and to address mechanisms for protection among different countries. In 1790, the United States created the first copyright law to cover magazines and books, but again, this was only for exact copies. During the 19th century, copyright law was extended to translations, works made for hire, music, dramatic compositions, photography, and works of art. During the 20th century, copyright law was extended to cover motion pictures, performance and recording of nondramatic literary works, sound recordings, computer programs, and architectural works. The US Copyright Act of 1909 added formal requirements to ensure protection, such as use of copyright notice, official registration, and renewal of copyright terms.40

US Copyright Act of 1976.

Before 1978, 2 systems of copyright coexisted in the United States. Common law copyright, regulated by individual states, protected works from creation until publication, and a separate federal law protected works from publication until 28 years thereafter (with an option for a 1-time renewal of the 28-year term).37 The Copyright Act of 1976, which became effective January 1, 1978, contained the first major revisions of US copyright law in almost 70 years. This act, reversing many of the formalities required by the 1909 act, remains in force today. Thus, for all works created after 1978, current law automatically provides protection to the creator of the work at the time it is created, whether written, typewritten, or entered into a computer; whether or not the work is published; and whether or not the work bears a copyright notice. In addition, the 1976 act changed the terms of copyright duration, with most terms equaling the life of the author plus 50 years. In 1998, the term of copyright protection for most works was extended to the life of the author plus 70 years40 (see 5.6.4, Types of Works and Copyright Duration in the United States).

International Conventions and Treaties.

In 1886, the Berne Convention was created by 10 European nations to protect copyright across national boundaries. The United States did not sign on to the Berne Convention until 1989.40 The Universal Copyright Convention was adopted in 1952 as an alternative for countries that disagreed with some aspects of the Berne Convention. A number of conventions and treaties adopted in the 1990s address copyright as it has been affected by new economic, social, cultural, and technological developments and by new international rules, including the Trade-Related Aspects of Intellectal Property Rights (TRIPS), World Intellectual Property Organization (WIPO) Copyright and Performances and Phonograms Treaty, and the WIPO Copyright Treaty.40,41 For more details, see 5.6.12, International Copyright Protection.

Copyright and New Technology.

Throughout the 20th century, technological advances have challenged copyright law: photographs, motion pictures, radio, television, photocopying, cable television, computers, databases, new media, and the internet.1,39,42 The most recent challenge began in the 1990s with the increase of electronic publishing and new media. Although copyright law was designed to be technology neutral, it applied only to tangible copies and to the physical distribution of these copies. Although early users of the internet sent email messages and posted information on electronic mailing lists and bulletin boards without much concern for ownership and copyright of their communications, editors and publishers grew concerned about maintaining the integrity, quality, and ownership of their intellectual property once content was easily and widely digitized, published, and transmitted electronically.

In 1998, the US Digital Millennium Copyright Act (DMCA) was enacted to extend copyright protection to works created in a digital medium.14 Interpreting the DMCA, Hart42 notes that “works created in digital media are considered ‘fixed’ if they can be perceived, reproduced, or otherwise communicated for more than a transitory period, including the fixation on a computer disc or in a computer’s random access memory.” Among its major provisions, the DMCA implements the WIPO treaties, limits certain liability of online providers that adhere to specific requirements, limits liability of libraries and archives, prohibits the circumvention of technological barriers to block unauthorized access to content (anticircumvention), establishes penalties for such circumvention, addresses works now available through new technologies such as distance education and Web casts, and preserves existing rights of copyright owners.14,36,42

Since its enactment, the DMCA has addressed concerns about copyright protection and infringement in electronic publishing. However, continuing rapid advances in technology predict future changes in copyright law, requiring the publishing community to be alert to such changes for the foreseeable future.

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