The Current Status Of Copyright Law Essay

, Research Paper

The Current Status of Copyright Law

A copyright provides the creator of an intellectual production with ownership and exclusive rights to publish, print, distribute, or sell the copyrighted material. Intellectual productions that are eligible for copyright privileges include written material, written and recorded music, paintings, sculptures, photographs, movies, videos and video games, computer programs, and many other mediums of creative expression. To qualify for copyright protection a work must be creative, exist in physical form, and be originally produced by the author. A copyright cannot protect ideas, facts, titles, names, short phrases, or blank forms.

Generally, a copyright is owned by the creator of a work, but there are some exceptions. If an employee creates a work during the course of employment, the employer may own the copyright. Likewise, if an independent contractor creates the work, the copyright may be held by the commissioning organization. Additionally, if the owner of a copyright sells the rights to a work, the purchasing party becomes the copyright owner. In the case that two or more authors contribute to a joint work, they are considered joint copyright owners and have equal right to register and enforce the copyright. For works published after 1977, the copyright is enforceable for the life of the author plus seventy years. After this time period, the work enters the “public domain”, and anyone has access to it without infringing on the copyright.

As of March 1, 1989, a published work is automatically protected as soon as it is created. It is advantageous, however, to register the work with the U.S. Copyright Office for a number of reasons. Registering a work strengthens the rights of the creator in case of a copyright violation by allowing a lawsuit to be brought against the violator. Although an unregistered work is protected, a lawsuit cannot be brought to enforce it until it has been registered. Additionally, if a work is registered within three months of its creation (or at least prior to any infringement), the copyright holder can collect actual damages as well as statutory damages.

Once a work is registered with the U.S. Copyright Office, a copyright notice can be added to the work. This notice consists of: the word “copyright”, a “c” in a circle (?), the date of publication, and the name of the author or copyright owner. A copyright notice is not required to protect the work, but is still important. If the notice is included, a copyright violator cannot claim that they were unaware of the copyright. The notice also serves to discourage infringement in the first place. Including a notice may even make it easier for a potential violator to locate a copyright owner and obtain permission to use the work.

When the form or expression of a work is copied, a copyright infringement has occurred. The reproduction need not be identical to the original work, nor does it need to reproduce the entire work. If a substantial part of the work is copied, infringement has occurred. Copyright violators are liable for monetary damages and, in some cases, may face criminal penalties as well. Actual and statutory damages are awarded at the discretion of the court, and criminal proceedings may be imposed for willful violations. The Copyright Act of 1976 allows for actual damages based on harm or loss of revenue of the copyright owner, and statutory damages of up to $100,000. Criminal charges, depending on their severity, may result in fines and/or imprisonment. If the defendant is an “innocent infringer”, meaning that the violation was not intentional, damages usually are not charged, but the defendant must cease the infringing activities.

There are several defenses against charges of copyright infringement. The statute of limitations defense protects a defendant if too much time has passed between the violation and the lawsuit. A defendant may also claim that the violation was “innocent”; they had no idea that the work was protected by copyright. If a defendant can prove that the reproduction is, in fact, their own original creation, and not a copy, they may successfully defend themselves. Finally, a defendant may claim that the infringement is allowed under the “fair use doctrine”.

The fair use doctrine is a very significant limitation of a copyright owner’s rights. There are a few situations in which referencing copyrighted material is considered fair use. These situations include: criticism and comment, news reporting, research and scholarship, nonprofit educational uses, and parody. Circumstances that are considered in determining if a use is fair include the purpose and character of use, the nature of the copyrighted work, the relative amount of the copied portion in relation to the whole work, and the effect upon the potential market.

It has now been almost twenty-five years since the Copyright Act of 1976 was passed, and many new issues have been raised due to technological advancements and the creation of the Internet. Congress passed some new copyright laws in 1998, including digital anti-piracy measures (to prevent removal or bypass of digital copy-protection systems), liability limitations for Internet Service Providers (to protect ISPs from liability for copyright infringements by their subscribers), and license fees for digital and “Webcast” transmissions (to regulate the broadcast of music on the Internet).

Although these measures have been taken, they are just the preliminary steps in the right direction. The widespread popularity and versatility of the Internet is encouraging many new incidences and types of copyright violations. For example, Napster.com is currently being sued for providing the means for individuals to violate copyright laws by trading music with others, free of charge, over the Internet. Only time will tell how Congress decides to deal with the new and growing problems of copyright infringement, but keeping informed of the new and changing legislation will be beneficial to all.

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