Copyright Law 101
What is copyright law? Copyright protections are required by the U.S. Constitution. Specifically, Article 1 Section 8 Clause 8, known as the “Copyright Clause,” gives Congress the authority “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.” (In the 1700s, when the Constitution was drafted, copyright was associated with “the progress of science” because books helped spread knowledge around the world). Copyright is exclusively a matter of federal law, comprised of statutes that are enacted by Congress and adjudicated by the federal courts.
How does it work? Copyright law, as determined by Congress, gives authors time-limited, but exclusive, rights to determine where, when and how copies of their works should be reproduced, disseminated, adapted or made available to the public. These rights help assure the author that he or she can be paid for copies of the work. This economic incentive is critical for many new and professional authors who invest much time and effort to create unique and informative books, journals and other creative works.
Why is it important? The exclusive rights provided by copyright law encourage authors and artists to write, draw, film and compose the many and varied creative works that promote a vibrant culture, diverse society and free expression.
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What can be copyrighted? Original, expressive content—including, literary, musical or visual works that have been “fixed in a tangible form” (written down or digitally stored)—is protected by copyright. However, to ensure that authors and artists are free to write, draw, compose or film works about any topic, the rights granted under copyright law only protect original expression (the author’s own words used to, for example, describe a setting in a novel); they do not restrict use of facts or ideas. This is why there can be an endless number of romance or detective novels—all are based on the same basic plot idea, but each is written with the author’s individually selected words and style. Also, to promote an informed public, copyright protection is not applicable to any content created by the U.S. government.
What rights are granted? With respect to original expression, only the owner of a copyright is allowed to reproduce, distribute, publicly perform, publicly display or prepare a derivative version of (for example, create a movie version of a book) their copyrighted work, or to authorize others to do so. Others must obtain the copyright owner’s permission to make any of these uses, unless an exception or limitation to the general copyright protections applies.
Are there any copyright exceptions? To promote free expression, including literary criticism, parody and satire, copyright law also permits “fair use” of some or all of a creator’s work, without permission, when the user can show that it will promote the fundamental purpose of copyright. Copyright law also includes a number of specific exceptions to facilitate uses that Congress has determined promote access to copyrighted materials without reducing the incentive for authors to create new works. One example is the Chafee Amendment, which allows conversion of works into accessible formats for individuals with visual impairment when an accessible version is not commercially available.
How long does copyright last? Determining the duration of copyright protection for a specific work is fact-specific. In general, however, current U.S. law grants copyright protection for the lifetime of the creator, plus 70 years after his or her death. This applies to most books that are read for entertainment. Other works are protected for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter. These include works that are written anonymously, by corporate employees, or on a work-for-hire basis (for example, a publisher asks a professor to write a textbook on a particular subject).
What about the public domain? Once the limited term of copyright protection expires (see above), the book, journal or other creative work becomes part of the “public domain.” This means the copyright owner no longer controls use of the work and it can be used by the public without the author or publisher’s consent.
Copyright Drives Innovation
From creating the first moveable-type printing presses to developing and implementing an interactive digital book format (ePub3 ) centuries later, copyright’s economic incentives have encouraged the publishing industry to invest in new ways to make knowledge more widely available.
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Beyond innovations in format and distribution, publishers also rely on copyright to bring new stories, understanding and perspective to the public. They do this by discovering, developing and debuting hundreds of new authors each year (knowing that many will never pen a bestseller), and by bringing thousands of professionally edited and designed works to market from already popular authors.
In 2013 alone, publishers brought nearly 305,000 new print titles to market. This accomplishment represents millions of hours and dollars invested by editors, designers, coders, publicists and other publishing team members to polish, market and distribute these works in order to connect authors to readers. Adequate and effective copyright protection promotes the spread of knowledge, seeds the creation of original literary and scholarly works, and fuels development of new publishing technologies.
Our Goal: A Modern, Balanced Copyright System
As publishers explore how to effectively combine copyright and digital technology to bring more books, journals and learning materials to more people around the globe, governments around the world are exploring whether copyright itself, as a matter of both national laws and international agreements, needs to be updated to fit the digital world.
Here in America, three distinct segments of the federal government are in the midst of a comprehensive review of the U.S. Copyright Act:
- Congress, through the House Committee on the Judiciary
- U.S. Copyright Office
- Executive Branch’s Department of Commerce, through a joint effort of the Patent and Trademark Office and the National Telecommunications and Information Administration
In considering whether (and how) the Copyright Act needs to be amended or overhauled to meet 21st-century needs, each segment has held public dialogues and asked stakeholders to submit written comments to build a public record explaining why change may or may not be necessary.
AAP regularly and actively participates in these Congressional hearings, Department of Commerce public dialogues, and Copyright Office inquiries and roundtable discussions on issues ranging from mass digitization to small claims.
Briefly, AAP’s member-publishers, as copyright owners and users, believe it is imperative for a modern, balanced copyright law to do all of the following:
- Allow copyright owners and creators of all kinds to earn a living from developing and disseminating new works that enrich our world through social, political, scientific and cultural commentary
- Promote quality, diversity, innovation and integrity of original works of authorship
- Provide meaningful protection of all copyrighted works, in all formats (print and digital), in a manner that promotes creativity, learning and incentives for authors to publish new works
- Encourage the publishing ecosystem to explore new ways to collaborate with authors, technology companies and readers to promote and disseminate unique and informative works
AAP’s Copyright Priorities
The publishing industry’s overarching goal to support a modern and balanced copyright law informs AAP’s four key copyright priorities, briefly explained below.
Modernizing the Copyright Office
In recent years, legislative action on many issues, including copyright, has not been able to keep pace with rapidly changing technologies, business models, consumer interests and judicial interpretations of the law.
For this reason, AAP has asked Congress to enable the head of the Copyright Office, the Register of Copyrights, to officially interpret the Copyright Act by making the position a Presidential appointment subject to Senate confirmation. This authority would allow the Copyright Office to use its expertise to provide objective guidance and education to copyright stakeholders on specific legal and policy issues and, where necessary and appropriate, to devise rules and procedures for improved application and implementation of provisions of the Copyright Act.
AAP has also encouraged Congress to authorize an independent study of the Copyright Office to identify ways to update its infrastructure, resources and authority to align its operations with the digital-age needs of copyright owners. Updating the Copyright Office is the essential first step towards a more modern, balanced and nimble application of copyright law.
For more information, see AAP’s public statement about Copyright Office guidance, submitted to Congress.
As currently applied, the Digital Millennium Copyright Act of 1998 (DMCA) places a heavy burden on copyright owners to protect their rights by seeking out online copyright infringements, sending potentially millions of takedown requests, and then enforcing them. Most publishers have had limited success in this effort, which often resembles a game of “Whac-a-Mole” where works are continually reposted, instead of being effectively removed, despite repeated takedown requests from the copyright owner.
Throughout 2014-2015, AAP actively participated in the Department of Commerce’s multi-stakeholder dialogue on improving notice-and-takedown (online enforcement). Through this process, AAP worked with key stakeholders in the digital environment to develop and voluntarily implement a set of “best practices,” the DMCA Notice-and-Takedown Processes: List of Good, Bad, and Situational Practices. These best practices offer guidance for using technologies in a manner that makes protecting copyrighted works online more efficient without materially impeding the legitimate functionality of ISPs. While recognizing that efficiency is crucial in the digital environment, efforts to improve the efficacy of online enforcement may still require legislation, as explained in our written statement to Congress.
For more information, see AAP’s statement about DMCA enforcement, submitted to Congress.
Copyright law recognizes that certain uses of copyrighted works constitute “fair use” and do not require permission from the copyright owner. Publishers are owners and users of copyrighted works, and are continually on the front lines defending a robust and balanced fair use defense, which contributes to freedom of expression, creativity and the dissemination of knowledge.
However, courts today are increasingly asked to find fair use in cases of systematic, and often massive, unauthorized reproduction and dissemination of copyrighted content, instead of applying case-by-case analyses of one-off uses. Because many of these uses underpin new ways to access content, often providing real public benefits, courts are under tremendous pressure to find that these uses qualify as fair uses under the four-factor balancing test in section 107 of the Copyright Act, which requires courts to evaluate:
- The purpose of the use (including whether such use is commercial or is for nonprofit educational purposes)
- The nature of the copyrighted work
- The amount used in relation to the work as a whole
- The effect of the use upon the potential market or value of the copyrighted work
AAP has told Congress that the current four-factor balancing test is sound and should not be amended. However, with courts focusing on the immediate public benefit of new uses (often called “transformative uses” despite the fact that the work itself is rarely modified in any way), the fourth factor—effect on the potential market and value of the copyrighted work—is often being ignored. Without a robust market for copyrighted works, authors and publishers will have little incentive to create new works for future generations to enjoy.
To the extent that courts need guidance on the application of fair use and “transformative use,” AAP has recommended to Congress (in a general fair use hearing and a more specific educational fair use hearing) that the Copyright Office clarify these doctrines, as well as the relationship between fair use and other specific limitations and exceptions in the Copyright Act.
For more information, see AAP’s statement about general fair use and statement about educational fair use, submitted to Congress.
Specific Statutory Limitations & Exceptions
Specific limitations and exceptions (L&Es) enacted by Congress are intended to pre-authorize specific uses of copyrighted works so that routine or systematic activities, as well as those that require advanced planning and investment, can be made efficiently. L&Es expressly state what someone may do with a copyrighted work without the copyright owner’s permission, which makes them easier and faster to apply than fair use in everyday situations. Congress can also permit specific uses through L&Es that go beyond what would be permitted under fair use.
The Copyright Office has urged legislative action to update existing L&Es (e.g., library exceptions under Section 108) and to enact new provisions to address 21st-century copyright issues, such as orphan works, in order to improve the clarity and predictability of copyright law.
AAP agrees with the Copyright Office that Congress should carefully amend certain existing specific L&Es and craft new ones where a particular use by a particular set of users would benefit the public interest without unduly undermining the legitimate interests of copyright owners.
For more information, see AAP’s statement about Specific L&Es, submitted to Congress.
Additional AAP Resources