21st Century Copyright Law 101: What is Copyright Law?
Thanks to the booming internet era and the rapid development of digital technology, literary and artistic works are known worldwide. At the same time, creative works increase in terms of quantity and quality, raising concerns about copyright protection worldwide. While applicable copyright laws are strictly governed by national legislation and international treaties, many questions still arise about protecting the works, especially on digital platforms. Therefore, the 21st Century Copyright Law 101 series aims to summarise some of the introductory provisions of international copyright law and then analyse specific aspects of protecting works under copyright law, thus trying to answer about copyright protection in both traditional and digital markets.
This series is divided into the following chapters:
21st Century Copyright Law 101: What is Copyright Law?
21st Century Copyright Law 101: Works are Protected under Copyright Law
21st Century Copyright Law 101: Copyright and AI-Generated Artwork
21st Century Copyright Law 101: How to Protect Works under Copyright Law?
21st Century Copyright Law 101: Copyright Infringement in Cyberspace
21st Century Copyright Law 101: Compensation for Damage Caused by Copyright Infringement
21st Century Copyright Law 101: Responsibilities of Online-sharing Platform Operators in Copyright Protection
History of Copyright Law
Since ancient times, literary and artistic works have been created and handed down in small villages or communities. At that time, literary works were handwritten on paper, and there was no regulation regarding the copying and use of works. By the 1440s, the printing industry began to develop. As a result, printers who were worried about the economic consequences of copying works began to propose bans on reproduction. Several European countries initially accepted this proposal, but it was not included in any specific legislation. During that time, The Licensing of the Press Act 1662 was drafted in the UK as a measure to limit and prevent frequent abuse in printing books or pamphlets. This act was not aimed at copyright but protected the printing presses and printing generally through censorship. Unfortunately, the act was met with opposition and not renewed in 1694 (A Brief History of Copyright, n.d.).
In 1710, the British Parliament officially promulgated an act called Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, short named The Statute of Anne. This statute considerably introduced copyright protection into global law. This act, nevertheless, is only intended to protect literary works, encouraging authors to create valuable books (The Statute of Anne) without mentioning copyright protection for other types of works such as art, sculpture or music.
After that, in the United States, copyright protection was mentioned in the Constitution 1787, according to which, "The Congress shall have power 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". The later Copyright Act of 1790 was considered a milestone in US copyright law as it created the first national American copyright regime. Oren Bracha wrote in his book Owning Ideas: The Intellectual Origin of American Intellectual Property (1790-1909), "By contrast to the sporadic colonial printers' privileges, the Copyright Act, following the state statutes and borrowing heavily from the British Statute of Anne, created a universal regime of rights" (2016, p. 54).
Especially from an international perspective, the Berne Convention for the Protection of Literary and Artistic Works (The Berne Convention), which was concluded in 1886, is yet another valuable milestone. To date, 181 countries are parties to this convention (Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886)).
Currently, copyright law is present in most countries and has become one of the essential laws.
What is Copyright?
The Statute of Anne, did not mention the term copyright, but aimed to encourage learning by vesting the copies of printed books in the authors or purchasers of such copies for a period of time. Thus, the origin of the term 'copyright' starts from the simple meaning of its word, 'the right to copy'.
Marshall A. Leaffer, a distinguished Scholar in Intellectual Property Law and University Fellow, mentioned in the book Understanding Copyright Law:
The term copyright is a highly descriptive term: the right to make copies. It reflects the basic Anglo-American notion that undesirable economic results will occur if unimpeded copying is allowed for those intangible products whose production we wish to encourage. The focus of copyright law is on the benefits derived by the public from the labors of authors. By this view, reward to the copyright owner or author is a secondary concern. (Leaffer, 2010, chapter 1)
From a global legal perspective, copyright is an intellectual property owner's intellectual right. In Vietnam, copyright means 'the right of an organisation or individual to a work they create or own' (Intellectual property Law, Vietnam, Article 4(2)). In contrast, Berne Convention and other copyright acts do not give a specific definition for this term, but the term copyright is designed to protect the author of his or her works. Copyright laws lay down fundamental rights, including moral and economic rights, also known as property rights or exploitation rights.
Moral rights are rights attached to the author himself. Many countries do not allow this right to be transferred. The laws in Vietnam, Germany and the US provide examples.
In Vietnam, the moral rights are the right to name, publish or allow others to publish the work and the right to protect its integrity and prevent others from modifying, mutilating or distorting it in any way that is detrimental to the honour and reputation of the author (IP Law Vietnam, Article 19). These rights are protected indefinitely and cannot be transferred or inherited, except for the right to publish the work or authorize others to publish the work (Intellectual Property Law Vietnam, Article 27 (1)(2), Article 40 and Article 45(2)). In addition, moral rights are divided into two groups: (i) "moral rights attached to property" are the right to publish a work or to allow others to publish the work; and (ii) "moral rights not attached to property", including the rest of the rights above.
Like Vietnam, moral rights are recognized by German copyright laws. While Vietnam divides moral rights into moral rights attached to the property and moral rights not attached to the property, Germany does not make such a distinction. There, moral rights also include the right to publication, the right to be identified as the author of the work and the right to prohibit the distortion or any other derogatory treatment of his or her work (German Copyright Act, Subdivision 2). In Germany, besides, moral rights can be transferred through inheritance (German Copyright Act, Section 29(1)).
As mentioned in a Report of the Register of Copyrights of the United States Copyright Office, the landscape of moral rights in the United States is complex. However, the rights of the author's attribution and works' integrity are protected in the United States through a patchwork of federal and state laws, industry customs and other forms of private ordering (United States Copyright Office, 2019, p.3).
As the three examples show there are different regulations about moral rights, but in general, these are geared towards protecting the author's reputation and the integrity of the work. Furthermore, they are natural and do not require registration from a legal perspective.
Besides moral rights, economic rights are an indispensable right of copyright law when a person who uses these rights must obtain permission and pay royalties, remunerations and other material benefits to the copyright owner. However, copyright is still granted for free uses of works in the case of quotations, illustrations for teaching and indication of source and author (The Berne Convention, Article 10). These rights are also known as property rights (Vietnamese Intellectual Property Law) or exploitation rights (German Copyright Act), or economic rights (in the Berne Convention). However, in general, they include:
The right of reproduction of the work in copies or phonorecords
The right to prepare derivative works based on the work
The right of distribution
The right of communication to the public
The right to rent out originals or copies of cinematographic works and computer programs
The Berne Convention further states that the term of protection shall be the life of the author and fifty years after his death. Many countries extend this term to seventy years. In some exceptional cases, the term of protection shall be fifty years after the cinematographic works have been made available to the public with the author's consent or fifty years after the anonymous and pseudonymous has been lawfully made available to the public. In addition, the term is governed by the legislation of the countries of the Union who can expand protections in their respective jurisdictions (Berne Convention, Article 7).
Unlike ordinary property rights, copyright is a branch of intellectual property rights and a fundamental and natural right of humans. This right aims to protect assets in an intangible form. An example can be given by buying a book, which one only owns in physical form but cannot own the copyright to that book. Copyright, in this case, is the right to name the book, the right to publish or make it public, and the right to copy the book in multiple copies. In general, copyright arises when the work is created and expressed in a specific material form, regardless of content, quality, form, medium, or language, published or unpublished. Most countries do not require copyright owners to register for copyright protection, but the law still encourages authors to register to protect their works.
Deazley, R., Kretschmer, M., & Bently, L. (Eds.). (ca. 2010). Privilege and Property: Essays on the History of Copyright. Macmillan Publishers. https://library.oapen.org/viewer/web/viewer.html?file=/bitstream/handle/20.500.12657/30315/646696.pdf?sequence=1&isAllowed=y
A brief history of copyright. (n.d.). UK Copyright Service. Retrieved October 1, 2022, from https://copyrightservice.co.uk/copyright/history-copyright
Leaffer, M. A. (2010, May 18). Understanding Copyright Law (Fifth Edition). LEXISNEXIS
Bracha, O. (2016). Owning Ideas: The Intellectual Origins of American Intellectual Property, 1790–1909 (Cambridge Historical Studies in American Law and Society). Cambridge University Press.
Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886). (n.d.). Retrieved October 1, 2022, from https://www.wipo.int/treaties/en/ip/berne/summary_berne.html
United States Copyright Office. (2019). Authors, attribution, and integrity: Examining moral rights in the united states. https://www.copyright.gov/policy/moralrights/full-report.pdf
Cover image: Author’s image – From Instagram App
Figure 1: History of Copyright: Statute of Anne, 1710. (n.d.). Retrieved September 29, 2022, from http://www.copyrighthistory.com/anne.html
Figure 2: Team, I. (2020, April 24). Berne Convention For The Protection of Literary and Artistic Works. Intepat IP. Retrieved October 8, 2022, from https://www.intepat.com/blog/copyright/berne-convention-literary-artistic-works/
Figure 3: Copyright Symbol. (n.d.). Retrieved October 8, 2022, from https://1000logos.net/copyright-symbol/
Figure 4: Davydov, R. (2019, November 17). Contact With the World Beyond: The Ethics of Ghostwriting. Kraftblick. Retrieved October 8, 2022, from https://kraftblick.com/blog/the-ethics-of-ghostwriting/