Copyright: Legal and Cultural Perspectives
INF 390.2
Doty
“INTELLECTUAL PROPERTY” (IP)*
U.S. Constitution, Article I, Section 8, clause 8: Congress shall have the 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."
Recall:
(1)
Enlightenment assumptions about learning, progress, governmental, and the economic
and political status of the autonomous individual, joined with Romantic notions about
the author, the unitary work, and creativity. See, e.g., Foucault (1979), OTA (1986), Jaszi
(1991), Branscomb (1994), Woodmansee & Jaszi (1994), Vaidhyanathan (2001), and Boyle
(1996, especially Chapter 6, “Copyright and the Invention of Authorship,” pp. 51-60).
(2)
Madison's assumption of the coincidence of private economic interest and public interest
in knowledge and inventions expressed in Federalist #43
English Origins of U.S. IP and Copyrights



the Crown
Statute of Anne
common law copyright – there is disagreement whether there was indeed common law
copyright; many commentators contend that what we sometimes regard as common law
copyright was, in fact, a protected privacy interest
U.S. major laws -- 1790, 1831, 1870, 1909, and 1976, plus the Digital Millennium Copyright Act
(DMCA) of 1998
There have also been twelve extensions of the term of copyright, including retroactive extensions
(i.e., extensions of the copyrights of already created works), in the past few decades.
1976 Copyright Act (PL 94-553)
"fixed in tangible medium of expression"
Five (+ 1) exclusive rights that copyright holders have:
1.
2.
3.
4.
5.
[6.
to reproduce and to exclude others from reproducing
to derive and to exclude . . .
to distribute copies and to exclude . . .
to perform publicly and to exclude . . .
to display publicly and to exclude . . .
to transmit digitally and to exclude . . .]
Duration of copyright, as of fall 1998, is life of the creator + 70 years (increased 20 years from
previous term of protection); see Lolly Gasaway (2003). See Eldred. et al. v. Ashcroft (2003), the
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Supreme Court decision that found the Sonny Bono Copyright Term Extension Act, PL 105-298,
112 Stat 2827, constitutional.
* “Intellectual property” is a recent and contentious locution. I will ordinarily put the term in
quotation marks to indicate the fundamental disagreement that characterizes it.
There are important limitations on the exclusive rights granted to rightsholders by copyright;
these limitations include fair use, reproduction by libraries and archives, transfer of a particular
copy (doctrine of first sale), certain performances and displays, secondary transmissions, and
ephemeral recordings. Please also remember that limitations on the duration of copyright and
the protection of expression not ideas (itself a contentious distinction) also support the
intellectual commons. They do so especially in creating the public domain.
Fair Use(§107 of Title 17 of the United States Code; alternatively written 17 USC 107)
"A privilege in others than the owner of a copyright to use the copyrighted material in a
reasonable manner without the owner's consent, notwithstanding the monopoly granted to the
owner" (Black's Law Dictionary, 1990, p. 598)
According to one school of thought, fair use is simply opposed to misappropriation or
infringement, which is "unauthorized use of copyrighted material without permission [or, often,
knowledge] of copyright holder" (Black's Law Dictionary, 1990, p. 781)
§107: includes but needs not be limited to "criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research"
Boundaries of fair use are deliberately difficult to ascertain. Before 1976, fair use was a matter of
common law; now it is a matter of black letter law. It is still controversial in that two contesting
schools of thought argue whether fair use is a positive concept (a use is fair until demonstrated to
be otherwise) or a negative concept (it is only a defense against an accusation of
misappropriation; thus, all use is misappropriation until demonstrated to be otherwise). See
OTA (1986), IITF (1995), Boyle (1996), Lessig (1999), and the NRC report (2000).
Identifying if a taking (this term itself is ideologically loaded) is fair use or not requires balancing
a number of variables:
character and purpose of the use, including its commercial character
nature of the copyrighted work
the proportion that was taken
the economic impact of the taking
Miller & Davis (1990, pp. 349-350) add two other factors: (1) the intent and motives of the
defendant(s) and (2) the relationship of the taking to the First Amendment and the exercise of
free speech. They base their assertion on what they see as a growing emphasis in case law. The
relationship between copyright and free speech is complex and evolving, e.g., see the Church of
Scientology cases.
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Reproduction by libraries and archives (§108; or 17 USC 108)
For no commercial advantage
Must be open to the public
Must include notice of copyright near the reprographic machines, e.g., "the making of a copy may
be subject to copyright law"
"Rule of 5" (§108, g, 2)
Transfer of a particular copy -- doctrine of first sale (§109; or 17 USC 109)
This doctrine maintains that it resides in someone other than the copyright holder to sell, lease,
loan, destroy, display, or give away that one, legally obtained copy without the knowledge
and/or permission of the copyright holder.
Selected other provisions of the 1976 Act of interest in the United States Code
§302
§405
§408
duration of copyright
omission of copyright notice
no need for registration
Moral Rights
Not economic or proprietary in nature; they are personal. They cannot be sold or transferred,
i.e., alienated, only waived; can be held only by individual, not corporate, persons.
"the intimate bond that exists between a literary or artistic work and its author's personality"
(Raymond Sarraute, quoted in Goldstein, 1994, p. 166).
Largely ignored in the United States. The Continental legal tradition, however, has made moral
rights the centerpiece of protection of creativity.
Moral rights include (Henn, 1991, p. 215, citing a number of sources in note 57):
1.
2.
3.
4.
5.
6.
To be known as the creator of the work
To prevent others from being identified as the author of the work
To prevent others from falsely attributing authorship to a creator
To prevent others from making "deforming changes" to one's work
To withdraw a work from distribution if the views therein are no longer consonant with the
creator's
To prevent others from using the work or the creator's name in a way that would decrease
the creator's professional reputation.
Also called "attribution and integrity rights" or “paternity [sic] rights”
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Berne Convention
The Berne Convention Implementation Act of 1988 (PL 100-568) explicitly noted that the U.S. was
not recognizing any additional rights to copyright; moral rights were not to be added to the
protections granted by the Berne Convention in the U.S. The legislative history of the Act and
subsequent hearings on related legislation indicate that opponents to moral rights protection
maintained and continue to maintain that existing common law protections, a growing number
of Federal and state cases, and a growing number of Federal (e.g., the Visual Artists Rights Act)
and state statutes (e.g., California Art Preservation Act) protect moral rights of creators.
Colorizing movies, e.g., Ted Turner in France
World Intellectual Property Organization (1996) treaties (EU treaties also of interest)
Nation states were left to decide for themselves the breadth and width of the application of the
WIPO principles. See WIPO (2004) and the Digital Future Coalition (2004).
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Selected Sources
Black's law dictionary (6th ed.). St. Paul, MN: West.
Boyle, James. (1996). Shamans, software, & spleens: Law and the constitution of the Information
Society. Cambridge, MA: Harvard University Press.
Boyle, James. (Ed.). (2003). Collected papers: Duke conference on the public domain. Durham, NC:
Center for the Public Domain. [this monograph appeared as a special issue of Law &
Contemporary Problems, 66(1-2), 1-483]
Boyle, James. (2008). The public domain: Enclosing the commons of the mind. New Haven, CT: Yale
University.
Branscomb, Anne Wells. (1994). Who owns information? From privacy to public access. NY:
BasicBooks.
Digital Future Coalition. (2004). http://www.dfc.org/
Eldred et al. v. Ashcroft 537 U.S. ___ (2003) http://supct.law.cornell.edu/supct/html/01618.ZS.html
Foucault, Michel. (1979). What is an author? In Paul Rabinow (Ed.), The Foucault
reader (pp. 101-120) (.). (Josué V. Harari, Trans.). New York: Pantheon Books.
Gasaway, Lolly. (2003). When works pass into the public domain.
http://www.unc.edu/~unclng/public-d.htm
Gillespie, Tarleton. (2007). Wired shut: Copyright and the shape of digital culture. Cambridge, MA:
MIT.
Goldstein, Paul. (2003). Copyright’s highway: From Gutenberg to the celestial jukebox (rev. ed.).
Stanford, CA: Stanford University.
Henn, Harry G. (1991). Henn on copyright law: A practitioner's guide (3rd ed.). s.l.: Practising Law
Institute.
Hess, Charlotte, & Ostrom, Elinor. (Eds.). (2007). Understanding knowledge as a commons: From
theory to practice. Cambridge, MA: MIT.
Information Infrastructure Task Force. Information Policy Working Committee. Working Group
on Intellectual Property Rights. (1995, September). Intellectual property and the National
Information Infrastructure: The report of the Working Group on Intellectual Property Rights. URL:
http://www.uspto.gov/web/offices/com/doc/ipnii/
Jaszi, Peter. (1991). Toward a theory of copyright: The metamorphosis of “authorship.” Duke
Law Journal, 41(2), 455-502.
Lessig, Lawrence. (1999). Code [and other laws of cyberspace]. NY: Basic Books.
Lessig, Lawrence. (2001). The future of ideas: The fate of the commons in a connected world. New
York: Random House.
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Lessig, Lawrence. (2004). Free culture: How big media uses [sic] technology and the law to lock down
culture and control creativity. New York: Penguin.
Litman, Jessica. (2001). Digital copyright. Amherst, NY: Prometheus Books.
Miller, Arthur, & Davis, Michael H. (1990). Intellectual property: Patents, trademarks, and copyright
in a nutshell (2nd ed.). St. Paul, MN: West.
Patterson, L. Ray, & Lindberg, Stanley W. (1991). The nature of copyright: A law of users' rights.
Athens, GA: University of Georgia Press.
Russell, Carrie. (2004). Complete copyright: An everyday guide for librarians. Washington, DC:
American Library Association, Office for Information Technology Policy.
Stefik, Mark. (1999). The Internet edge: Social, legal, and technological challenges for a networked
world. Cambridge, MA: MIT Press.
Vaidhyanathan, Siva. (2001). Copyrights and copywrongs: The rise of intellectual property and how it
threatens creativity. New York: New York University.
Vaidhyanathan, Siva. (2004). The anarchist in the library: How the clash between freedom and control
is hacking the real world and crashing the system. New York: Basic Books.
Woodmansee, Martha, & Jaszi, Peter. (Eds.). The construction of authorship: Textual appropriation
in law and literature. Durham, NC: Duke University.
World Intellectual Property Organization. (2004). http://www.wipo.int/index.html.en
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