Which of the following protects the authors of a book from having their word copied by others?

II Historical Development

The history of copyright law is largely a history of Western development of copyright law. In many Eastern nations, there was no need of copyright because the government controlled all printing until the late 1800s. In addition, there was a general lack of interest in economic reward for literary works. As one writer put it, this was “because of sociocultural reasons stemming from the Confucian value system which tends to devalue the materialistic compensation of the literati.” Most Eastern nations began to develop copyright laws late during the 19th century as a result of contact with the United States and other Western nations.

The history of Western copyright law is largely that of England and the United States. From the printing of the Gutenberg Bible in 1456 to the Statute of Anne in 1710, there were no laws protecting any rights of authors. In fact, as in other European and Eastern nations, early laws regarding printing in England were most often passed by the crown to control access to printing and to control its content. Only those with licenses from the crown could print. If they printed works that displeased the crown, then they found their licenses terminated and were then subject to punishment. By 1700, the licensing scheme had fallen into disarray and the printers, or “stationers” as they were known, found that the abundance of printing presses was leading to increased piracy. They pleaded the case of authors and their own predicament to convince the parliament to pass the Statute of Anne, the first copyright law. The law provided that the rights belonged to authors and to printers and booksellers that had received the right to print from the authors, thus recognizing the essentially commercial nature of the printing industry. Whereas the authors created the works, it was the printers that were able to commercially exploit the works. For the printers to succeed, they had to be protected from unauthorized reproductions appearing the moment they released their first editions to the public.

This established a pattern for the expansion of copyright law. As new kinds of works were invented or became commercially viable, the interested parties lobbied their governments for protection. The more commercially important, the more likely the work or right was to be protected. This trend is evident from the Statute of Anne to the World Intellectual Property Organization (WIPO) Copyright Treaty and its provisions on Internet distribution and protection for Internet service providers.

For nearly 200 years after the Statute of Anne, most nations protected only works of their own citizens. Works from neighboring nations were often pirated at will, and the copyright owners had no recourse. In 1886, the Berne Convention for the Protection of Literary and Artistic Works marked the first significant agreement among a group of nations that they should protect copyrights across borders. Even as late as the 1950s, the United States did not protect rights in works from foreign nationals unless there was a specific trade treaty with that nation or unless the nation was from the Western Hemisphere and was a member of the only significant multinational copyright treaty the United States had signed, the Buenos Aires Convention in 1910. Only when the United States joined the Universal Copyright Convention (UCC) in 1955 did Congress abandon the requirement that all English-language versions of books being sold in the United States be printed in the United States.

IX Option Value-Based Protection

The enforceability of copyright laws is questionable in the boundless economy created by the Internet and electronic commerce. Legal differences, national culture, and differing value systems make it difficult, if not impossible, to enforce a common set of laws across all countries. Some have suggested that much chargeable value in the case of information products will be in certification of authenticity and reliability, not in the content itself. If consumer-perceived value is maximized, sustainable increasing economic returns can be generated through self-reinforcing positive network feedback loops that characterize information goods. Economists have also recommended further exploration of the notion of option value—select abilities valued by the consumer—associated with digital information products that are vulnerable to copyright infringement. The effectiveness of copyright protection then depends on a potent combination of technology, reasonably enforceable laws and good economic judgments.

X.B. Copyright

Copyright laws protect content creators, publishers, producers, and distributors' rights to information and payment for content use. New laws have been created to address digital copyright. The 1998 U. S. Digital Millennium Copyright Act (DMCA), copyright laws of the U. S. and other countries, and world copyright treaties (World Intellectual Property Organization at http://wipo.org/) are relevant sources of information regarding copyright restrictions.

Information systems that control and facilitate user access to copyrighted material, track usage, and provide payment and licensing authority are called digital rights management or copyright management technologies. These systems are often integrated into publishers' or sources' web sites. The Copyright Clearance Center and its web site at http://www.copyright.com/ provide information and services regarding copyright payment.

2.2 Copyright Law

Copyright law promotes creativity in literature and the arts by affording authors and artists lengthy terms of protection (life of the author plus 70 years) against copying. Copyright law protects the expressive elements of a broad range of works—including books, graphical works, dramatic works, choreography, musical compositions, sound recordings, films, sculpture, architectural works, and computer programs—but does not extend to facts, ideas, or utilitarian aspects of such works. Copyright protection inheres upon the creation of original works of authorship fixed in a tangible medium of expression. By contrast with patent protection, copyright law employs a relatively low threshold for protection and substantially longer duration, but the scope of copyright protection is narrower and less absolute. For most categories of works, copyright owners have the exclusive right to make copies, prepare derivative works, and distribute, perform, and display their works during the term of protection. Most continental European nations, and to a lesser extent the USA and other nations, protect attribution and the artistic integrity of expressive works through inalienable moral rights. In response to the increased vulnerability of digital works to widespread piracy, the World Intellectual Property Organization (WIPO) Copyright Treaty requires signatory nations to provide adequate legal protection against the circumvention of copy protection systems and the removal or alteration of copyright management information conveyed along with a copyrighted work.

Unlike patent rights, which are essentially absolute (apart from antitrust limitations), the rights of copyright owners are constrained by the fair use doctrine, which permits limited use of protected works for criticism, news reporting, teaching, scholarship, and research. Copyright law also provides for compulsory licensing of musical compositions and television signals for cable distribution under particular circumstances. Under international conventions, works qualifying for copyright in member nations are protected in other member nations.

Copyright

Copyright law grants to the copyright holder exclusive control over the distribution and reproduction of that material. Copyright Law attempts to balance the intellectual property interest of authors and publishers with society’s need for the free exchange of ideas. The pertinent U.S. law reads as follows:

…lawful reproduction of protected materials requires the copyright owner’s permission, except for copying which is authorized as “fair use” and for certain reproduction by qualified libraries.

“Fair use” copying has all of the following characteristics:

The copy is made in lieu of taking manual notes.

The copy is the reasonable portion of a given work. Reasonable portion is defined as nor more than 10% of the total pages, or one chapter of a published work that is not <10 pages, and is not an artistic work.

The copy has a temporary use, primarily for study and use.

It is not fair use to:

Make a copy to avoid purchasing an original

Engage in systematic copying to avoid purchase or subscription

Make multiple copies of material for distribution

Use copies of copyrighted material in a company document, proposal, newsletter, manual, or employee newsletter without copyright clearance

UK copyright basics

Copyright law in the United Kingdom commenced with the Statute of Anne in 1709.11 The types of works protected under UK law consist of:

literary – song lyrics, manuscripts, manuals, computer programs, commercial documents, leaflets, newsletters, articles etc.

dramatic – plays and dances

musical – recordings and scores

artistic – photography, painting, sculptures, architecture, technical drawings/diagrams, maps, logos

typographical arrangement of published editions – magazines, periodicals, etc.

sound recording – recordings of other copyright works, e.g. musical and literary

films – video footage, films, broadcasts, and cable programs.

Compromises and fair use

Copyright law presents a multitude of obstacles to intellectual freedom in academia. The present state of legal discourse on the issue, reflected most notably in the DMCA, severely impinges on the agency of academic institutions in the digital milieu. The matter is very fluid yet the regulations that Congress has enacted, under the influence of content vendors and publishers, call into question the continued existence of the fair use right. The DMCA reifies obstacles to access, rendering use, and in turn fair use, impossible. The fundamental legal orientation that treats the Internet as a marketplace fails to recognize it as a dynamic, developing, and rapidly changing community.

The DMCA does not address the issue of fair use. A right that is guaranteed by and central to copyright law is subverted in this act. This will become more problematic in the digital milieu as content increasingly is only issued digitally. Journal articles, eBooks, and streaming audio-video material will be introduced initially with TPMs. The DMCA prevents any measure that circumvents these controls. Use will be constrained by this law to only those prescribed as acceptable by content vendors, whose priorities are not necessarily in accordance with content creators. Corporations and entities that operate as businesses have one overarching priority, profit. While these vendors may share many of the same concerns as advocates of intellectual freedom, they are only free to support these matters provided their financial security is ensured. No matter how pure the intentions, the precedence of the market in the profusion of academic materials presents a severe impediment to fair use rights. The DMCA provides a means for the priorities of content vendors to dictate the terms of fair use.

Interestingly, there is little to suggest that DRM is of economic benefit to publishers. The method employed on the part of publishers to procure DRM tends to be contracting withthe advent of Adobe Content Server (ACS). According to Kurt Biglione, in his chapter “Analyzing the business case for DRM” in McGuire and O’Leary’s (2011) Book: A Futurist’s Manifesto, publishers “can expect to pay Adobe an initial license fee of $6500, plus an additional fee of $0.22 per e-book sold” (see section entitled Investing in DRM, para. 2). The presence of this DRM supplied by Adobe is the reason so many eBook libraries, such as eBrary and Overdrive, need to be used in conjunction with Adobe Digital Editions. Most eBooks in the United States are sold through Amazon on the Kindle platform. Amazon imposes their own form of DRM on these eBooks, as does Apple when eBooks are sold through the iBookstore. There is no explicit DRM cost presented to publishers using either of these marketplaces, yet they are required to pay 30% of each sale to the aggregators. Additionally, publishers are not provided with information about consumers or the inner working of the marketplaces. In effect, publishers are confronted with the choice between either contracting with Adobe or limiting their choice of venues for sale.

DRM also inhibits innovation in digital publishing. By placing restrictions on how content can be accessed as well as what can be done with it, many potential uses never get explored. The provisions of the DMCA expressly prohibit circumventing technology in nearly all circumstances. The supposedly moderating feature of the DMCA, the rulemaking process, is of questionable efficacy.

U.S. copyright law

In the U.S.A., the foundation for copyright law is found in Article I, Section 8, Clause 8 of the U.S. Constitution: “The 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;” (U.S. Constitution, 1787). The core idea expressed is that those who create intellectual property should have the exclusive opportunity to profit from their creations – but that the exclusive nature of the opportunity should be limited. That limitation provides an opportunity for the public to use, and build on, the work of others.

U.S. copyright law is codified in Title 17 of the U.S. Code. The Copyright Act of 1976 provided the most significant recent revisions to U.S. law, though further amendments have been made since the passage of the Act. Under current law,

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

literary works;1

musical works, including any accompanying words;

dramatic works, including any accompanying music;

pantomimes and choreographic works;

pictorial, graphic, and sculptural works;

motion pictures and other audiovisual works;

sound recordings; and

architectural works.

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

(U.S.C. Title 17, Sec. 102)

In brief, copyright protection is afforded to any original work if that work is recorded (physically or electronically) in a manner in which it may be perceived by a person. Works that contain no original content/authorship are not eligible for copyright protection. Furthermore, copyright does not protect an idea (like a patent does); it only protects the particular original expression of that idea.

Box 2.1

International copyright law

As may be expected, intellectual property and copyright law varies by country. However, in order to ensure that creators’ copyrights are globally respected, the international community has created treaties to protect works that are copyrighted in another country. The two primary treaties that govern international copyright are the Berne Convention for the Protection of Literary and Artistic Work (1886) and the Universal Copyright Convention (1952). Countries who are signatories to these treaties must have domestic copyright laws that are consistent with the treaties and must offer foreign nationals’ works the same protections that are afforded to that country’s citizens (Heller, 2004).

A significant difference between copyright law in the U.S.A. and in other countries is the treatment of moral rights. “Moral rights” generally refer to the right of the author of a work to be identified as the author of that work, and to preserve the integrity of the work. For example, in some European countries, moral rights are granted to an author separately from the copyrights, which are designed to protect the economic interests of the author. However, in the U.S.A., moral rights are not explicitly granted to authors/creators of copyrightable works (except in the case of visual art); copyright law focuses primarily on property (economic) rights (Bird and Ponte, 2006).

Another notable distinction is seen in the ideas of “fair use” in the U.S.A. and “fair dealing” in the U.K., Canada, and other Commonwealth countries. Both are exceptions to the exclusive rights of copyright holders to make use of their works in specific ways, but the parameters of what is defined as “fair” utilization of copyrighted material differs. (The concept of “fair use” will be discussed in more detail throughout this book.)

It is not uncommon for faculty and researchers at higher education institutions to collaborate with peers from other countries. When these collaborations result in intellectual property that is subsequently submitted to an institutional repository, it may be advisable for repository managers to confirm the expectations of coauthors/cocreators from other countries with regard to their copyrights, and how their works may end up being used if they are made available through the repository. It should be noted, though, that significant conflicts related to international copyright law will likely occur infrequently – if at all – for most institutional repositories.

10.5.4 Exclusive Rights

Current copyright law grants five exclusive rights to the owner of a copyrighted work. These include the right to: (1) distribute, (2) reproduce, (3) adapt, (4) perform, and (5) publicly display the protected work. Infringement of the copyright occurs when one or more of these actions occur without the copyright owner's consent.

However, in the electronic world the definitions of these exclusive rights are not clear. For example, courts question whether the transmission of copyrighted material over the Internet constitutes a public distribution of the work? They also ask, does public display of a work include its availability on the Internet? If so, what remedies are available to the author if no one can determine who placed the material on the Internet? Does uploading or downloading material from the Internet, a bulletin board service, or a database constitute a “reproduction” of the work? What liability do Web site managers and ISPs have in monitoring such activity or the ownership of material? All of these issues are currently being evaluated but no resolution exists as yet.

What is copyrightable?

When copyright law was initially devised in the United States it was intended to protect eight categories: literary works, musical works including any accompanying words, dramatic works including any accompanying music, visual artworks, sound recordings, architectural works, audiovisual works, and pantomimes and choreographic works. These categories liberally encompass many works that would not initially be interpreted within their scope. For instance, computer programs are classified as literary works,3 whereas maps and architectural drawing are considered visual artworks (Bielefield, 2007, p. 25).

Certain material is ineligible for copyright protection. There are a number of items and an awareness of what is ineligible will free librarians up to make use of them. Language in and of itself is not copyrightable. This means that names, words, short phrases, and lists of ingredients or contents are fair game. Much of the material that is not copyrightable is common property. Typeface cannot be copyrighted. This is a difficult concept to grasp. An artist can copyright the particular way type is written in the form of a font, yet the basic characters constituting that font are not subject to copyright. This also follows with common symbols, such as a †, *, +, $, or %. In addition, “charts, graphs, and tables that do nothing more than express underlying data are not the proper subject matter of copyright protection” (Copyright Office, n.d., para. 3). This quality is particularly important for librarians working in the scholarly community. For scholars doing research and preparing to publish material containing visual representations of data from other material they do not need to worry about paying for copyright. Standard forms represented by time cards, bank checks, order forms, and the like are also not subject to protection. The physical character of an object is not copyrightable either. An idea is not copyrightable, yet the expression in language is. The plans or way that an object is expressed in writing can be copyrighted. An axle is not copyrightable, yet diagrams explaining the various parts and functions of the axle are.4