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Binding rules that define and govern the
acquisition, use and misuse of copyrights. Copyright law may comprise,
depending upon jurisdiction, international agreements, federal
statutes, state statutes, and common law.
Although there is not such a thing as an
"international copyright," most countries do offer protection
to foreign works via their national copyright laws as they coincide
with the various international copyright treaties and conventions
to which the individual countries belong. See: COPYRIGHT
CONVENTIONS.
Within the United States, federal statutes
are by far the most comprehensive. Federal law supersedes state
legislation (but only in federal courts-state courts enforce state
statutes and state judges can ignore or make judgments that limit
federal laws in certain instances, e.g., where narrowly defined
state statutes conflict with a wider ranging federal law-in these
instances, an appeal to a federal court may sometimes have to
be made). On the plus side, however, state statutes can be enforced
in state courts where they supplement federal law, i.e., are in
addition to the coverage provided by federal law.
The federal law that governs most activity
with respect to copyright in the United States is the Copyright
Revision Act of 1976 as amended (otherwise known as United States
Code, Title 17-Copyrights). This law, which became generally effective
in 1978, does not cover works created before 1978. Those older
works fall under the jurisdiction of the previous statute which
is the statute of 1909 as amended. One notable amendment to the
1976 Act was the Berne Convention Implementation Act of 1988.
This amendment covers works created on or after March 1, 1989.
See: COPYRIGHT CONVENTIONS under
"Berne Convention."
The federal law, in general, protects an
original work of authorship (with some exceptions) which is significant
in length and is an expression of an idea, or ideas. It defines
certain exclusive rights in the work to be the property of the
copyright owner. Under the law, the rights in copyright are recognized
to be separate and distinct from the right to the physical object
in which the work may be embodied, and also from any physical
expression of the work, e.g., if you receive a letter from your
friend the physical letter is your property but the expression
of ideas contained in the letter and the rights in copyright belong
exclusively to your friend (if they were originated by him, i.e.,
if he did not copy them from someone else).
The law also prohibits the unauthorized
copying of the protected work. It further provides some remedies
for certain infringements of the enumerated exclusive rights.
It also defines a group of compulsory licenses
(and the fees payable for these licenses) that are available to
certain perspective users of copyright. Compulsory licenses, though
restrictive, may be obtained without the permission of the copyright
owner.
The list of sub-entries that follow will define many of the terms relevant to copyright law. Where appropriate, terms are defined by direct quotes or paraphrases from the existing law.
See: COPYRIGHT
LAW under "Copyright," "Common Law Copyright,"
"Limitations to Exclusive Rights," "Compulsory
License," ALL RIGHTS RESERVED, RIGHT, LAW, PROPERTY under
"Intangible Property," COPYRIGHT ADMINISTRATION, COPYRIGHT
CLEARANCE, COPYRIGHT-BY-MAIL, COPYRIGHT-BY-NOTARIZATION, COPYRIGHT
MORTGAGE, LICENSE, TRADEMARK,
PATENT, EQUITY..
.
.
.
Common Law Copyright:
Perpetual copyright protection enabled
by state common law. State common law is law that is generally
unwritten (as opposed to statutory law). It is law that is derived
from trade customs and traditional use. It has widespread recognition
and acceptance and has authority which rests in previous court
decisions.
This protection exists only in instances
where federal law does not apply or where a work does not meet
federal qualifications for copyright, e.g., a memorized and/or
performed work that is not fixed in a tangible medium. See: LAW
under "Common Law," COPYRIGHT LAW under "Statutory
Copyright," COPYRIGHT-BY-MAIL, COPYRIGHT-BY-NOTARIZATION.
.
.
.
Compulsory License:
However, compulsory licenses can only be
secured if certain conditions, restrictions, and fee (royalty)
payment requirements are met.
For example, with respect to juke boxes,
a compulsory license can only be obtained by a juke box operator
user where the juke box operator user and the copyright owner
(or his authorized representative, often his performance rights
society) are unable to mutually agree upon a negotiated license.
Also, in the special case of a compulsory
license for phonorecords (discs, tapes, and CDs) it cannot be
issued until the copyrighted work has had its first commercial
recording and has been distributed to the public by sale or other
transfer of ownership. (The license that allows the first commercial
recording of a work is a negotiated license, called a mechanical
license, and is issued to the record company by the copyright
owner's agent licensor which is usually the Harry Fox Agency.)
Further, a compulsory license for phonorecords
only allows for the recording of "sound-alike" recordings.
These recordings must be arrangements that do not change the basic
melody or fundamental character of the work.
The compulsory license for phonorecords
is then, in effect, a license to manufacture, distribute, and
sell a "sound-alike" recording. And since, in the record
industry, a license to manufacture, distribute, and sell a phonorecord
is called a mechanical license, a compulsory license for phonorecords
simply amounts to a mechanical license for sound-alike recordings.
And finally, there is no compulsory license
available that would allow for the reproduction of identical copies
of an existing copyrighted recording. Manufacturing and selling
identical copies is called pirating! Pirating is illegal and the
pirate is subject to both civil and criminal penalties which may
include damage awards, court costs and attorney's fees, as well
as, substantial fines and imprisonment.
All use licenses that are not available
via a compulsory license must be obtained from the copyright owner
by the perspective user via negotiation.
To help deter the use of compulsory licenses
and to help to promote negotiated licenses, compulsory licenses
carry with them certain stringent liabilities inherent to their
use. These liabilities are defined by copyright law. For example,
one stringent condition included is the requirement for monthly
royalty payments (instead of quarterly as is the industry standard).
This requirement alone usually moves the perspective user to negotiate
directly with the copyright owner (or his agent licensor) for
a more plausible agreement. Negotiated agreements eliminate the
need for the involvement of the Copyright Office.
Information on procedures that must be followed to obtain compulsory licenses and the royalty fees and other liabilities involved may be procured from the copyright office.
See: RIGHT,
MECHANICAL RIGHT, JUKE BOX
under "Juke Box License", LICENSE
under "Mechanical License," "Performance License,"
"Synchronization License," MUSIC under "User of
Music," COPYRIGHT LAW under "Notice of Intention,"
"Compulsory License Fee," "Compulsory License for
Cable Television," "Compulsory License for Juke Boxes,"
"Compulsory License for Noncommercial (Public) Broadcasting,"
"Compulsory License for Phonorecords," "Statutory
Royalty," " Digital Performance Right in Sound Recordings
Act," "First Recording Right," "Copyright
Office," "Copyright," "Copyright Owner,"
"Exclusive Rights," and "Limitations to Exclusive
Rights,"
.
.
.
Compulsory License for Phonorecords:
The compulsory license for phonorecords
is a license to manufacture, distribute, and sell a "sound-alike"
recording of a previously recorded non-dramatic musical composition.
This license can only be issued after there has been a commercial
release of the first recording, i.e., after the first recording
has been distributed to the public by sale or other transfer of
ownership. Then, any other person or entity may obtain such compulsory
license without the consent of the copyright owner.
This license only allows for a sound-alike
recording that is a new and independent fixation. This new musical
arrangement may conform to the style or interpretation of the
new performer but may not, however, change the basic melody or
fundamental character of the original work. Further, the sound-alike
is not subject to protection as a derivative work except with
the express consent of the copyright owner.
This compulsory license does not allow
for the reproduction of identical copies of an existing copyrighted
recording. Manufacturing and selling identical copies is called
pirating! Pirating is illegal and the pirate is subject to both
civil and criminal penalties which may include damage awards,
court costs and attorney's fees, as well as, substantial fines
and imprisonment.
Since in the record industry, a license to record, manufacture, distribute, and sell a phonorecord is called a mechanical license, a compulsory license for phonorecords, then, simply amounts to a mechanical license for sound-alike recordings.
See: MECHANICAL
LICENSE, MECHANICAL RIGHT, MULTIMEDIA RIGHT, DISTORTION, ABRIDGMENT
OF MUSIC, ARRANGEMENT, SOUND-ALIKE RECORDING, CONTRACT-RECORDING
CONTRACT clause #18, LICENSE
under "Performance License," "Synchronization License,"
COPYRIGHT LAW under "First Recording Right," "Compulsory
License," "Compulsory License Fee," "Statutory
Royalty," " Digital Performance Right in Sound Recordings
Act," "Notice
of Intention," "Copyright Office," "Copyright,"
"Copyright Owner," "Exclusive Rights," and
"Limitations to Exclusive Rights."
.
.
.
Copyright:
1) The legal protection given to a copyright owner (of both published and unpublished works) by federal, international, and (in limited cases) state statute.
2) A legal document that states a person's claim (that may or may not be factual) to be the original author of the material being registered for copyright, i.e., copyrighted.
3) The right to exercise the exclusive rights granted a copyright owner under copyright law.
See: ALL
RIGHTS RESERVED, PLAGIARISM, AMORTIZATION, PROPERTY under "Depreciable
Business Property," COPYRIGHT-BY-NOTARIZATION, COPYRIGHT-BY-MAIL,
PATENT, TRADEMARK,
COPYRIGHT LAW under "Common Law Copyright," "Notice
of Copyright," "Exclusive Rights," "Created,"
"Copyrightable Material," "Registration of Copyright,"
"Infringement of Copyright," "Copyright Office,"
and "Noncopyrightable Material."
.
.
.
Copyrightable Material:
Any material of significant length that
is an expression of an idea, or ideas, comprises an original work
of authorship, and is fixed in a tangible medium of expression,
i.e., it is embodied in a copy or phonorecord. Material that is
identical or similar to other works already copyrighted can be
copyrighted by another as long as it is an original expression
of a work, i.e., it was not copied. This means that a work could
possibly be created by more than one person if the second person's
creation was independent of the first. However, it must be both
consciously and subconsciously independent. This means that if
the second person had access to the material and later subconsciously
re-created it, the re-creation would not be protected by copyright
law. In fact, if used improperly, it would be an infringement
of the original creator's right to copy. Final decisions to determine
if copyright infringement exists, however, are made via litigation
and not by the copyright office.
Copyrightable works include…
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