Copyright and the Creative Commons

When I got my three academic degrees in Computer Science back in the last century, I never heard the word “copyright.” As we moved into the 21st century and with the rise of what we now call “remix culture,” copyright is on the minds of most people who work in and with technology. By the end of my time teaching in a Computer Science and Technology Department, every student was required to take a course called Cyberethics (which I taught) and one of the major topics of that course is copyright. In fact, I would argue that every person who is engaged with online life in any way needs to understand the basics of copyright. What is copyright? What is its purpose? How does it work? What are the implications of copyright for creating and producing in an online environment? What works are copyrighted? What are the exceptions to and limitations of copyright? Those are the kinds of questions I’ll look at in this post.

What is copyright? Copyright is exactly what it sounds like. It is the right, written into the laws of most countries, to copy creative works. The person (or corporation or other entity) who holds a copyright on a particular creative work has exclusive rights to do a variety things like copy and adapt that work. Much of the time, the law gives these rights to the creator of the work, but in some cases, such as when the creator is being paid by an employer to do the work, the copyright holder is someone other than the creator of the work.

What is the purpose of copyright? There are generally two related rationales provided for copyright. The first is to provide an incentive to creators to create new work. This utilitarian rationale focuses on the idea that if a creator is guaranteed the right to control their works, they are more likely to keep creating new works. The second rationale is that granting copyright recognizes and protects the relationship that an creator has with their creative works. Requiring the attribution of a work to its particular creator helps to preserve the integrity of the work. To me, these are admirable rationales for copyright but I think in many countries today, we have moved away from them. For example, in 1998, the Copyright Term Extension Act (CTEA) extended copyright in the US to the life of the author plus 70 years. I can understand that the US Congress might think creators needed additional incentive to create new works and that extending the copyright term would provide that incentive–for new works. But why would works that have already been created need additional incentive? And yet, the CTEA provided this term extension to already existing works as well as to new works. Perhaps Congress thought the extension was needed for the second reason above–to honor the deep connection between a creator and their creative works.

What kind of work is subject to copyright laws? To me, this is one of the most confusing parts of copyright law, primarily because I think it sometimes seems as though courts violate what we normally think about what is copyrightable and what is not. Generally, copyright explanations say that copyright does not protect ideas and facts. Instead, copyright protects particular expressions of facts or ideas. In other words, the copyright holder does not control the idea or fact itself, only the expression of the idea. But then I read about situations like the Arthur Conan Doyle’s estate claiming that because they still hold the copyright for some of the later Holmes stories, the characters of Sherlock Holmes and John Watson are still protected by copyright. First of all, I don’t understand how the estate still holds copyright for any of the stories. Doyle died in 1930, 88 years ago. And yet, the estate still holds the copyright for stories written between 1923 and 1927. I thought that in the US, works are protected by copyright for the life of the creator plus 70 years. In addition, the estate claims that any creative work that depicts Sherlock Holmes in retirement must pay them a license fee because the stories for which they still hold copyright depicts Holmes in retirement. But Holmes in retirement seems to me to be an idea rather than an expression of an idea. The stories themselves are the expression that is covered by copyright. Anyway, this case, and others like it, confuses me.

That said, there are lots of different types of creative expressions that can be protected via copyright. In the early history of copyright law, the expression of ideas in books was the focus of copyright. The Statute of Anne in the early 18th century in England gave book publishers the exclusive right to copy their books for 14 years. Now, however, all kinds of creative expression are covered by copyright law. Literary and other artistic works like paintings and drawings are protected, even when the expression is electronic rather than in printed books. Translations and other types of adaptations are protected as are collections of literary and artistic works. But even things like architectural designs and computer software and tattoo designs are protected by copyright. The idea is that anything that involves someone’s creativity in the development of the expression is covered.

How does a creator protect their creative works via copyright? Copyright protection happens automatically, without the creator needing to do anything. Most countries have a governmental agency that allows creators to register their copyright as an extra level of protection should they ever need to enforce their rights.

What are the various ways that creative works can be protected? Copyright is just one of the ways that creative works can be protected. It allows for the protection of the expression of an idea or fact. There are two other types of laws that can protect creative works, however.

Trademark law allows the registering of a kind of symbol for a brand. The purpose of a trademark is to uniquely identify a business or product or service and so the protection of the trademark prevents confusion among the public about what the business or product or service is. For example, the Nike swish is a trademark that Nike can prevent others from using as a representation for a different business or product or service.

Patent law is designed to protect inventions. A patent allows an inventor to hold the exclusive rights to make, use, and sell their inventions in exchange for disclosing the secrets of how the invention is made and used. Drug companies, for example, hold patents for certain periods of time on the drugs they create. Once a patent on a drug expires, other companies can use the information disclosed in the patent application to create generic versions of the drug. Patent law confuses me sometimes as well. For example, gene patents allow a company to claim that because they are the first to identify a unique sequence of DNA (a gene), they hold a patent on that DNA sequence. The company has not invented this DNA sequence. They have simply discovered it. So I don’t understand how patent law applies.

What does it mean that a work is in the “public domain”? When a creative work is in the public domain, the work is not subject to copyright and the public is allowed to do what they want with the work. It’s important to know that a work might be in the public domain in one country but not in another. In addition, some countries have “moral rights” to creative works that extend beyond copyright.

There are a number of ways that a work can enter the public domain. The first way is that the copyright expires. For example, the copyright on the song Happy Birthday to You expired in 2017 in the European Union so the song is now in the public domain there. In the past, there were some formal steps that creators had to go through in order to acquire and maintain their copyright. If they didn’t do those formal steps, their creative work would enter the public domain. This used to happen quite a bit but in most countries, there are no longer formal requirements for acquiring and maintaining copyright (it happens automatically), so no new works enter the public domain in this way. The third way that works enter the public domain is that they are not subject to copyright in the first place. For example, in many countries, the creative works created by government employees as they go about their work is not subject to copyright but is instead in the public domain. Finally, the creator of a work can dedicate the work to public domain before the copyright expires. This is one of the possibilities with Creative Commons licensing–the CC0 license (“No Rights Reserved”) means that the creator has placed their creative work in the public domain.

Are there any limitations or exemptions to copyright? Most countries have some sort of “fair use” exception to copyright. If a particular use of the work meets a three step test, the use is considered “fair” and, therefore, not a violation of the copyright holder’s copyright. The allowance of fair use of works protected by copyright is an attempt to balance the rights of the copyright holder with the interests of the public. What is the three step test? It is a test first articulated in the 1967 Berne Convention’s copyright treaty. It stated: “”It shall be a matter for legislation in the countries of the Union to permit the reproduction of  such works [a] in certain special cases, provided that [b] such reproduction does not conflict with a normal exploitation of the work and [c] does not unreasonably prejudice the legitimate interests of the author.” (emphasis added) Even though this language has existed for more than 50 years, it has never been officially interpreted and so its meaning is somewhat ambiguous. Whether a particular work constitutes a fair use of a protected work is a matter of interpretation. To try to clarify fair use, some countries have written different versions of the fair use doctrine into law. For example, the United States uses a four-factor test. This test examines the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. These factors allow for reviews, parodies, and educational uses of works protected by copyright.

I wrote this blog post as my second assignment in the Creative Commons Certification course that I’m taking. My first assignment is here. Copyright is complex and challenging to understand but I think the basics are pretty clear. And that’s what I’ve tried to cover in this blog post. Let me know if you think it is helpful or not.

Image Credit: Photo by Allef Vinicius on Unsplash