Copyright with an International Perspective for Academics

Copyright with an International Perspective for Academics

Stephen Marshall (Victoria University of Wellington, New Zealand)
Copyright: © 2009 |Pages: 16
DOI: 10.4018/978-1-60566-198-8.ch069
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Abstract

Copyright has emerged in the 21st century as one of the hot topics reported on regularly by media. Hardly a month goes by without discussion about the impact of the Internet, in particular, on the intellectual property rights of publishers and, by implication, the creators of content that they ostensibly represent. People who make digital copies of various types of media are cast as the new “pirates” of the digital frontier, often with quite extreme rhetoric: No black flags with skull and crossbones, no cutlasses, cannons, or daggers identify today’s pirates. You can’t see them coming; there’s no warning shot across your bow. Yet rest assured the pirates are out there because today there is plenty of gold (and platinum and diamonds) to be had. Today’s pirates operate not on the high seas but on the Internet, in illegal CD factories, distribution centers, and on the street. The pirate’s credo is still the same-why pay for it when it’s so easy to steal? The credo is as wrong as it ever was. Stealing is still illegal, unethical, and all too frequent in today’s digital age. (RIAA, 2003, p.1)
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Introduction

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. -- Thomas Jefferson, 1813, p. 333

Copyright has emerged in the 21st century as one of the hot topics reported on regularly by media. Hardly a month goes by without discussion about the impact of the Internet, in particular, on the intellectual property rights of publishers and, by implication, the creators of content that they ostensibly represent. People who make digital copies of various types of media are cast as the new “pirates” of the digital frontier, often with quite extreme rhetoric:

No black flags with skull and crossbones, no cutlasses, cannons, or daggers identify today’s pirates. You can’t see them coming; there’s no warning shot across your bow. Yet rest assured the pirates are out there because today there is plenty of gold (and platinum and diamonds) to be had. Today’s pirates operate not on the high seas but on the Internet, in illegal CD factories, distribution centers, and on the street. The pirate’s credo is still the same-why pay for it when it’s so easy to steal? The credo is as wrong as it ever was. Stealing is still illegal, unethical, and all too frequent in today’s digital age. (RIAA, 2003, p.1)

Most teachers could be forgiven for thinking that copyright, as with other forms of intellectual property protection, is something that has little relevance to their teaching. However, the increasing use of digital materials by teachers and by students, as well as the perception of the Internet as a vast source of freely usable content, means that some familiarity with the operation of copyright is now essential. Institutions’ growing interest in maximizing the return from content created by teachers in their employ is changing the culture of free exchange and collegiality that has been common in many fields. Initiatives such as the Google Print Library project are starting to challenge established ways of storing and locating much of human knowledge, while at the same time the use of Digital Rights Management or DRM is rising as companies like Sony attempt to place technological restraints on content as well as legal ones.

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Background

Copyright has, from its earliest inception, been used to provide a way of controlling and limiting the ways in which ideas are expressed and communicated. Initially, English copyright was controlled through the use of Royal Charters, with the British Queen, Mary Tudor, granting in 1557 a monopoly that lasted until 1694 to the Stationer’s Company in return for their cooperation in suppressing and censoring texts that did not support the Monarchy and Catholicism. This was not a new concept and similar legal controls were established much earlier in European countries as printing technologies became established (Rose, 1993).

In the American colonies, the rights to publish were controlled through a combination of printing cartels and colonial government licenses. The Massachusetts colonial government was the first to pass a copyright statute in 1673, but this was not widely adopted as an approach given the tight control of existing measures.

Authors, as the creators of works that could be protected by copyright, were prominently acknowledged in the 1710 Statute of Anne:

An act for the encouragement of learning … for the encouragement of learned men to compose and write useful books. (Statute of Anne, 1710, p. 261)

This was essentially an expedient gloss to a statute that was really intended to regulate publishing (Goldstein, 2003), in much the same way as the original Royal Charter that had lapsed in 1694. A principal beneficiary was the publishing industry who regained a valuable twenty year monopoly on their existing stock.

Key Terms in this Chapter

Intellectual Property: A comparatively recent description of the much older concept that intellectual effort can be treated as a form of property and controlled so as to circumscribe or limit the ways in which that intellectual effort is used by others. The concept of intellectual property encompasses copyright, patent, trademarks, moral rights, and other similar forms of legal protection. A contested implication of the use of the term is that intellectual work should attract the same level of legal protection that is given to physical property.

Copyright: Copyright describes the bundle of rights that control the copying and use of original works fixed in tangible form. The details of the exact rights granted, their duration and ownership all vary between different jurisdictions, but in its simplest form, copyright allows creators of original works control over whether or not their work is copied (either directly or through a derived work) and under what circumstances, including whether or not it is published or made available to the public. In most countries copyright comes into existence automatically when a work is fixed in some tangible form and is not conditional on any notice or formal process. The rights that are granted under copyright can be separated, licensed, sold or waived entirely at the discretion of the owner (except moral rights in some countries – see below).

Moral Rights: Also known as “author’s rights” or droits moraux, these are the collection of rights that protect the integrity of the created work, the association of the author to that work, and the author’s reputation. Four moral rights are generally recognized: the droit de divulgation, or right of disclosure; the droit de repentir ou de retrait, or right to retract works previously published; the droit de paternite, or right of attribution of authorship; and the droit au respect de l’oeuvre, the right of integrity. Moral rights are key to many European copyright laws and a reduced set is required under the Berne Convention. Under French law these rights are perpetual and may not be waived. Under United States law a limited set of the moral rights are protected through the Visual Artists Rights Act of 1990 and a combination of case law findings.

Public Domain: The “public domain” describes the body of works that, for whatever reason, are not covered by copyright or other legal controls over their use. Unlike open source works, there are no conditions imposed upon works in the public domain with the exception that where the European droits moraux is applicable, then the moral rights of the author must be respected. Under United States law, unless the owner explicitly states to the contrary, any work created after 1923 must be assumed to not be in the public domain. Unless a work is very old, determining that it is in the public domain can be very difficult and depends on the particular details of the country that the use is occurring.

Patent: A patent is a limited-term monopoly granted to the inventor of a new invention that protects the ideas behind the invention absolutely. Patents, unlike copyright, are not limited to particular expressions of ideas or forms of an invention, but protect the invention in any form or guise. Patent protection requires specific actions on the part of the inventor to obtain the protection and in many countries there are additional requirements such as non-disclosure prior to filing for a patent. In the United States a requirement is that filing occur within one year of disclosure. The absolute monopoly granted by the modern patent is balanced by the requirement that the invention be fully documented so that others can build on it after the monopoly term expires.

Digital Rights Management: Usually referred to by the acronym DRM, these are technologies used to enforce and monitor particular models of content access and use. These technologies attempt to ensure that only authorized users can access content and that they can only use it within a set of constraints pre-determined by the publisher. Examples include the Fairplay system used by Apple in iTunes to constrain music files to a maximum of three computers and the Content Scrambling System (CSS) used in DVDs to enforce the region encoding and other use constraints such as the inability to fast-forward through advertising materials.

Fair Use: The exception to the rights of the copyright owner set out under Section 107 of the United States Copyright Act 1976. This allows for a limited amount of personal copying in the context of activities such as criticism, teaching, scholarship, and research. The freedom to copy under this Section is widely misunderstood and it is important to note that the courts have quite tightly restricted the use of this exclusion. Generally this exception will only hold if the use is non-commercial, relates to a factual work, of a small amount and not done in a way that impacts on the commercial market for the original. “Fair use” only applies in the United States and while some exceptions for similar uses exist in other jurisdictions the details differ significantly. Despite this, the term is commonly used internationally to describe uses of copyright material that are considered defendable exceptions to the normal regime of protection.

Open Source: Technically “open source” refers to making the programming instructions used to write computer software available for scrutiny and reuse by others. In practice, it also describes a political movement that is concerned with how software and computer technology is owned and controlled. Open source software is commonly either in the public domain or copyright and licensed by the owner in ways that enforce free access to the source of the original and all derived works.

Plagiarism: Plagiarism is the use of the ideas from an existing source directly and without attribution. A number of different types of plagiarism are recognized, not all of which are considered inappropriate in all disciplines. Plagiarism by copying is the commonest and occurs when the words from one source are used without modification or attribution. Rephrasing an expressed idea without citation is plagiarism by paraphrasing. Other forms include self-plagiarism, patchwork plagiarism, plagiarism of structure or citation, and ghostwriting or fraud. Some, but not all, forms of plagiarism are also violations of copyright.

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