ARTICLES -
Copyright: Guide to Online Resources //
Intellectual property protections in the United States derive from the Constitutional charge that Congress may promote “science and the useful arts” through the granting of monopolies for limited times. All of our copyright laws have their origins in this balancing act. It is a fundamental tenet of Anglo-American thought and practice that copyright is not designed to benefit creators alone; it is designed to benefit everyone. It provides creators with a monopoly, for a limited time and with exceptions, of control over distribution, derivation of new works, and public display. It provides to society the gradual accumulation of a public legacy. Among the most basic of all its features: copyright inheres to any expression that is “fixed and tangible” (not to ideas and thoughts)—excepting lists of facts—and, since 1976, on an opt-out basis (that is, no registration is required).
Gathered here are links to resources on copyright, arranged by subject category. This guide emphasizes information bearing on the background and law of copyright in the United States; it does not consider droit d'auteur or moral rights addressed elsewhere in the U.S. Code but not in Title 17. Following each section’s introduction is a bibliographical reference to the best single discussion of the topic that we have found.
1. Overviews
Summaries and brief guides covering a wide range of issues in introductory fashion. Recommended resource: Mark Rose. Authors and owners: the invention of copyright. Cambridge, Mass.: Harvard University Press, 1995.
U.S. Copyright Office: http://www.copyright.gov/help/faq/
Legal Information Institute (Cornell University): http://www.law.cornell.edu/wex/Copyright
Copyright & Fair Use (Stanford University Libraries): http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter0/index.html
Copyright Quick Guide (Columbia University Libraries): http://copyright.columbia.edu/copyright/copyright-in-general/copyright-quickguide/
The Copyright Alliance Education Foundation: http://www.copyrightfoundation.org/
2. Philosophical foundations
Anglo-American copyright law evolves from “contractarian” views of political economy that consider intellectual property a matter of legal regulation in the marketplace. Works by David Hume, Thomas Hobbes, John Locke, Thomas Paine, and others are often cited. The derivation of rights to one’s intellectual labor argued by Locke is often regarded as most influential. The chief 19th-century expositor was Georg Wilhelm Friedrich Hegel. Recommended resource (especially on Locke): Lior Zemer. The idea of authorship in copyright. Aldershot: Ashgate, 2007.
John Locke, Two Treatises on Government (nb 2nd Treatise [1689]): http://www.lonang.com/exlibris/locke/
G.W.F. Hegel. Philosophie des Rechts [1821], in the translation by S.W. Dyde (nb Part 1, §43, 45, 52): http://socserv.mcmaster.ca/econ/ugcm/3ll3/hegel/right.pdf
Thomas Macauley. Copyright Law (speech to the House of Commons [1841]): http://en.wikisource.org/wiki/Copyright_Law_(Macaulay)
Internet Encyclopedia of Philosophy: http://www.iep.utm.edu/natlaw/ ; http://www.iep.utm.edu/hume-cau/
Stanford Encyclopedia of Philosophy: http://plato.stanford.edu/search/searcher.py?query=natural+right
http://plato.stanford.edu/entries/intellectual-property/
3. Historical resources & documents
Collections of primary documents concerned with the granting of authors’ rights in Western culture. Recommended survey: Brad Sherman & Lionel Bentley. The making of modern intellectual property law. Cambridge: Cambridge University Press, 1999.
U.K. Arts & Humanities Research Council: http://www.arts-humanities.net/projects/primary_sources_copyright_1450_1900
_electronic_database_historical_materials_copyright_fiveU.S. Copyright Office: http://www.copyright.gov/history/
CopyrightData historic versions: http://law.copyrightdata.com/
Music Library Association historical chronology: http://copyright.musiclibraryassoc.org/Resources/Laws
National Library of Medicine guide: http://www.nlm.nih.gov/hmd/copyright/copylawguidance.html
4. Legislation & case law
Copyright law is statutory but necessarily flexible, such that a great deal can be learned from interstitial common law (court decisions—judicial interpretations of the Constitution, of statutes, and of regulatory documents). For most materials (sound recordings made before 1972 are a notable exception), federal copyright law preempted state common law in 1978. Recommended survey: Robert Gorman, et al. Copyright cases and materials. 8th ed. New York: Foundation Press, 2011.
U.S. Code Circular 92: http://www.copyright.gov/title17/
Thomas (The Library of Congress): http://thomas.loc.gov/home/thomas.php
Music Library Association chronology of court decisions: http://copyright.musiclibraryassoc.org/Resources/Decisions
All Things Copyright (Graphic Artists Guild blog): http://allthingscopyright.com/?page_id=7
American Library Association Advocacy: http://www.ala.org/advocacy/copyright/copyrightlegislation/
The Copyright Website: http://www.benedict.com/
5. Public domain
Those works whose terms of limited monopolistic ownership have lapsed are said to become public property, or works in the public domain. The term is allied with public spaces, or commons, that may benefit society generally. In recent years the concept has come under attack from the U.S. legislature and judiciary alike; owing to the Copyright Term Extension Act (1998) and the Golan v. Holder decision (2012), nothing is currently entering the public domain and many works have recently been removed from it. Recommended resource: James Boyle. The public domain: enclosing the commons of the mind. New Haven: Yale University Press, 2008.
U.S. Copyright Office: http://www.copyright.gov/records/
Center for the Study of the Public Domain (Duke University): http://www.law.duke.edu/cspd/about
Public Domain Chart by Laura Gassaway: http://www.unc.edu/~unclng/public-d.htm
Term lengths table by Peter Hirtle: http://copyright.cornell.edu/resources/publicdomain.cfm
Copyright & Fair Use (Stanford University Libraries): http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/index.html
6. Fair use
Though courts had recognized the need for exceptions in the exclusive rights of authors for well over a century (starting with Folsom v. Marsh in 1841), Congress introduced into the U.S. Code for the first time language describing “Limitations on exclusive rights: fair use” (§ 107) in the Copyright Act of 1976. The statute calls for courts to examine several factors, especially the nature of the use, the nature of the copied work, the amount used, and the market impact of the use, for the purposes of criticism, comment, reporting, teaching, scholarship, and research. Application of the so-called “four factors” to determine whether or not a use is a fair use has been a matter for debate ever since. It is important to note that case law usually not only considers the purpose and transformativeness of the use but also cites community norms in the determination of fairness. Recommended resource: Patricia Aufderheide. Reclaiming fair use: how to put balance back into copyright. Chicago: University of Chicago Press, 2011.
U.S. Copyright Office: http://www.copyright.gov/fls/fl102.html
American Research Libraries Fair Use Project: http://www.arl.org/pp/ppcopyright/codefairuse/index.shtml
Copyright & Fair Use (Stanford University Libraries): http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html
Columbia University Libraries Advisory Office: http://copyright.columbia.edu/copyright/fair-use/
Center for Social Media (American University): http://centerforsocialmedia.org/fair-use
7. Licensing & permissions regimes
If a determination is made that a desired use of a copyrighted work is not a fair use, authorized permission for the use may be sought. In regulatory terminology, a licensor may grant a permission to a licensee as a means to authorize a use that then becomes immune to claims of infringement. A license may be granted to copy, distribute, or otherwise usurp a copyright, usually for a specified term (and/or with other limitations). Recommended reference: Robert Gomulkiewicz. Licensing intellectual property: law & application. 2nd ed. New York: Aspen, 2011.
U.S. Copyright Office: http://www.copyright.gov/licensing/
The Authors Registry: http://www.authorsregistry.org/
Artists Rights Society: http://www.arsny.com/
VAGA [for visual arts rights]: http://www.vagarights.com/
VAC [for visual arts rights]: http://www.visualartcopyright.com/license.html
SESAC [for performance rights]: http://www.sesac.com/Home.aspx
ASCAP [for performance rights]: http://www.ascap.com/licensing/
BMI [for performance rights]: http://www.bmi.com/licensing/
Sound Exchange [for performance rights]: http://www.soundexchange.com/
iCopyright [for digital content]: http://www.arsny.com/
Copyright Clearance Center: http://www.copyright.com/content/cc3/en/toolbar/aboutUs.html
8. Open access
In fact a subcategory of (7) above. In recent decades, recognition that all thinking and creativity are social (and that much research is publicly funded) has fostered a movement for free and open access to all information—the Public Library of Science promises “free availability and unrestricted use”. The goals are allied with those underlying the idea of a public domain (also above, (5)). As copyright is automatic, open access inheres only if content is licensed for open access. Creative Commons offers a middle solution, by which creators may reserve only selected exclusive rights. Recommended discussion: Gary Hall. Digitize this book! the politics of new media. Minneapolis: University of Minnesota Press, 2008.
Scholarly Publishing & Academic Resources Coalition: http://www.arl.org/sparc/index.shtml ; http://sparceurope.org/
Creative Commons: http://creativecommons.org/about
Scholar’s Copyright Addendum Engine: http://sciencecommons.org/projects/publishing/scae/
Open Access to Scientific Information: http://open-access.infodocs.eu/tiki-index.php
National Institutes of Health policy: http://publicaccess.nih.gov/policy.htm
Open Source Markets: http://www.focus.com/fyi/open-source-open-world/
Richard Poynder blog: http://dspace.dial.pipex.com/town/parade/df04/The%20Basement%20Interviews.htm
Copyright law always lags behind the introduction of new media; the first cases involving film emerged in 1912, three years after the landmark Copyright Act of 1909 (which said nothing about film). The Digital Millennium Copyright Act of 1998 was the first important legislative recognition of Internet use (which provided access to the World Wide Web in 1990). For a while technological solutions mitigated against piracy, but legislative protections have been sought since the late 1970s. Recommended study: Peter Decherney. The copyright wars: from Edison to the Internet. New York: Columbia University Press, 2012
Center for Social Media (American University): http://www.centerforsocialmedia.org/fair-use/videos/podcasts/remix-culture
Public Knowledge: http://www.publicknowledge.org/about
CNML Newsletter: http://www.copyrightlaws.com/the-copyright-new-media-law-newsletter/
Mary Minow & Peter Hirtle blog: http://blog.librarylaw.com/
James Grimmelmann blog: http://laboratorium.net/
Michael Geist blog: http://www.michaelgeist.ca/
The Copyright Website: http://www.benedict.com/Digital/Digital.aspx
10. Digital rights & content locks
In a field with plenty of debate, few subjects are more contested than copyright protection of digital content. Just transferring an existing digital document elsewhere requires making a copy—from its storage location into the RAM memory of the device where it displays—so there’s immediate potential for infringement with virtually any use (though courts have recognized a non-infringing category of “incidental copying”). Different subsections of the U.S. Code address issues for computer software programs, digitized images, websites, and digital audio transmissions. Several advocacy organizations monitor community practice, legisltation, and periodic reviews of the Digital Millennium Copyright Act (1998). Recommended discussion: Jessica Littman. Digital copyright. New York: Prometheus, 2001.
Electronic Frontier Foundation: https://www.eff.org/about
Coalition for Networked Information: http://www.cni.org/
Center for Democracy & Technology: https://www.cdt.org/
New Media Rights: http://www.newmediarights.org/
Summary of the 1998 Act by the U.S.C.O.: http://www.copyright.gov/legislation/dmca.pdf
In January 2007, the United Nations Assembly of the Union adopted a statement known as the UN Declaration on the rights of indigenous peoples, with the support of 143 member countries. Its Article 31 begins: “Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.” This is largely an area of undeveloped law, but one of considerable importance for all those interested in the arts and community practices of the world’s peoples. Recommended resource: Johanna Gibson. Traditional knowledge in intellectual property: law and practice. Oxford: Oxford University Press, 2012.
World Intellectual Property Organization Resources: http://www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909.html
U.K. Intellectual Property Office: http://www.ipo.gov.uk/types/copy/c-otherprotect/c-moralrights.htm
Laura Gassaway (summary for Special Libraries Association): http://www.sla.org/content/Shop/Information/infoonline/2002/dec02830/copycorner.cfm
Traditional Knowledge Initiative (United Nations University): http://www.unutki.org/
Afro-IP blog: http://afro-ip.blogspot.com/2010/09/contralesa-on-rsas-traditional.html
Open Folklore Project: http://creightonbarrett.com/archivology/2010/09/open-folklore-open-access-and-the-future-of-scholarly-publishing/
12. Current issues in the news
A comprehensive, well-organized site with current copyright news and analysis is the scholarly communications blog maintained by Kevin Smith: http://blogs.library.duke.edu/scholcomm/. A wide-ranging, moderately provocative view of where we are now has recently been supplied by an attorney (a senior legal counsel for Google) and prolific author, William Patry, namely his How to fix copyright (Oxford: Oxford University Press, 2011).
Assignment of copyright to works already in the public domain:
Golan v. Holder decision (Supreme Court [June 21, 2010]): http://www.law.cornell.edu/supct/cert/10-545Rescue and preservation of historic sound recordings:
Historical Recording Coalition for Access & Preservation: http://www.recordingcopyright.org/index.htmlExtension of federal copyright to pre-1972 sound recordings:
U.S. Copyright Office Report [Dec. 31, 2011]: http://www.copyright.gov/docs/sound/pre-72-report.pdfOrphan works legislation:
Center for the Study of the Public Domain (Duke Univeristy): http://www.law.duke.edu/cspd/orphanworks.htmlAccess to broadband networks and Internet neutrality:
Public Knowledge: http://www.publicknowledge.org/issues/broadband ; http://www.publicknowledge.org/issues/network-neutralityAccess to research in scholarly publications:
The Finch Report on open access: http://www.researchinfonet.org/wp-content/uploads/2012/06/Finch-Group-report-FINAL-VERSION.pdfInternational treaties and conferences on intellectual property:
World Intellectual Property Organization: http://www.wipo.int/wipolex/en/
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. 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, letter to Isaac McPherson, 13 August 1813