How does copyright work?
Could someone out there help me? I am suffering from word fog? Was the question about Andy Warhol ever answered?
Not yet, but this question was answered here: http://boards.straightdope.com/sdmb/showpost.php?p=7941653&postcount=5
It’d be nice if it were more clear that this is only one part of a multi-part column.
But great column! Considering the number of copyright questions we see, having a report to point to is convenient.
This Staff Report was very informative.
And could keep a lot of Members & Guests out of trouble.
Many thanks.
And dem fine job!
Thanks for the historically-informed answer about the origins of
copyright. However, you left out some important things about
the Statute of Anne, England’s first copyright law. You wrote:
“Concerned that existing common-law protections did little to
prevent unauthorized publication, the Stationers petitioned
Parliament, and some well-known authors and philosophers
joined them. The result was 8 Anne c.19, the so-called Statute
of Anne, which is generally recognized as the first copyright act.”
This is not quite what happened. The Stationers were trying to
regain a statutory monoply which Parliament had decided to let
lapse (in the wake of the Revolution of 1688). The Stationers
had been, essentially, the only people allowed to operate printing
presses; in return for this monoply status, they’d had to ensure
that what they printed passed the government’s censors.
When the government became less enamored of censorship, it no
longer needed the Company of Stationers to act as a centralized
bottleneck for the distribution of printed materials. Naturally, we’re
all in favor of increased freedom of the press, but for the Stationers
this was terrible news. They responded with the novel proposal that
an author had a natural right of ownership in his work, and that –
crucially – this right was transferrable by contract. Aware that most
authors do not own printing presses, the members of the Stationers
Company knew very well to whom those ownership rights would
typically be transferred. By making this compromise (which did give
authors more power in their relationship with publishers), the
Stationers came out rather well, because they succeeded in placing
printing (i.e., copying) rights on the firm ground of property law,
rather than the shifting sands of statutory law.
Thus the primary motivation for their proposal, and hence for the
Statute of Anne, was the economic interests of publishers, not authors.
Copyright was fundamentally designed to subsidize distribution, not
creation. This is why it is so contentious today, as distribution costs
drop slowly to zero thanks to the Internet.
An excellent source on this history is Professor Lyman Ray Patterson’s
paper “Copyright and ‘the Exclusive Right’ of Authors”, at
http://www.lawsch.uga.edu/jipl/old/vol1/patterson.html.
A more detailed discussion of the Stationers’ compromise and the
economics of publishing can be found in this article at
QuestionCopyright.org.
Interesting. Thanks.
From J.A.L. Sterling,* World Copyright Law*
(Emphasis added.)
The publishing trade surely benefited from the Statute of Anne, and probably were disingenuous in supporting rights for authors, the Statute was one of the first recognitions of any rights for authors.
That it was meant to benefit authors is clear from the preamble of the statute:
History of Copyright: Statute of Anne, 1710
Whether the authors actually got any benefit from the Statute is another question.
Also, Sterling has a great discussion of copyright protection systems. He divides them into Copyright (United States), Authors’ Right (new UK system, France, and Germany), and Composite (China and Japan). A very interesting discussion that I don’t have time to summarize right now.
In practice, authors got a huge gain from the Act, but not for a generation or two. For thousands of years, there had been only two ways for authors to make decent money by writing:
-
Dedicate your book, as fawningly as possible, to someone rich and powerful, and hope that he’d give you a big bag of money and/or a sinecure job.
-
Write plays. (This wasn’t a very good way; Shakespeare made his fortune as [in modern terminology] a producer, not as a writer. But there was a tradition that the entire box-office take for the third performance of a play – if it lasted that long – went to the writer.)
It took until about 1750 before writers began to realize that copyright could give them a sufficient income in itself, without resorting to patronage.
One can’t know the true purpose of a law from its title or its text. When Congress passes a “Clean Water Act”, are we therefore to assume that this law must be about protecting our water supply? Not necessarily.
Likewise with the Statute of Anne. The Stationers Company saw very clearly that authors were a far more sympathetic beneficiary than were the Stationers themselves. Even today, most people do not get a warm and fuzzy feeling when thinking about the publishing industry, and these particular publishers had been responsible for enforcing censorship for nearly 150 years! They knew they were not about to win any popularity contests, and that’s why they made their case in terms of authors’ interests.
A good way to test this hypothesis is to conduct the following ahistorical thought experiment: if you had to design a system primarily to support authors, in the eighteenth century, what would it look like? Would it look like the Statute of Anne, that is, like modern copyright?
I don’t think so. An obvious author-centered system would, instead, simply insist that anyone who publishes a given work must pay its author (or the author’s assignees) some percentage royalties, or some absolute amount of money per copy sold. Rather than restrict who could print the work at all (and thus artificially restrict the work’s ability to spread), it would simply ensure that the author would benefit in direct proportion to the number of copies sold, while not creating a new monopoly right.
Yet Parliament did not create such a system. (Note that I am not proposing such a system today, either – it might be of maximum benefit to authors, but I don’t think it is of maximum benefit to society as a whole.)
The system Parliament did create looked a lot like the system they’d had before, only with the element of direct censorship removed. This is because the new system was primarily designed by the publishing industry, to serve that industry’s interests. These interests were not entirely disjoint from the interests of society, of course – this was not a simple case of regulatory capture, but rather a reflection of the economics of printing at the time. Parliament bought the Stationers argument because it made sense, if the goal was to keep the publishing industry intact.
The economics of distribution have changed fundamentally today, though.
Why not?
Why is that author-centered? In that scenario, the author loses control over the work. Under this system, the author can’t control who prints the work, probably can’t control misuse, market flooding, or inclusion in compilations with works to which the author objects. And they author can’t decide not to print the work at all; also the author would have very little bargaining power over price (pretty much the only way the author could get a better price would be to tie the price to an agreement to write more). The system that you describe might be better described as publisher-centered or public centered; but author-centered?
Thus changing the right to print from private property to common property.
Seems like Parliament bought the author’s argument, after rejecting the bookseller’s argument.
http://www.lawsch.uga.edu/jipl/old/vol1/patterson.html#english
And it’s getting more interesting in the meantime… very informative on de minimis in the movies, and the quote from Souter was good to know.
Looking forward to the next installment!
This has been an excellent series. It will save me a lot of typing.
I don’t get the argument that the Statute of Anne was meant to benefit the stationers. According to the argument above, the whole reason the Stationers wanted a new law was that there were now upstart rival printing companies. So what’s to stop an author from selling the rights to one of those upstarts instead of to the Stationers? With or without the law, an author is going to need to go to some printer in order to publish, and if there are multiple printers, then with or without the law, the author is going to choose which one to go to.
The explanation was a bit overcondensed on that point.
What happened is that, in the days of censorship, the Stationers Company had preserved the one-publisher/one-text oligopoly, by way of the censorship laws. When censorship was relaxed, there was nothing to stop ripoff presses from pirating the best sellers, leaving the honest printers stuck with all the risks on untried material. The Statute of Anne was devised to stop that. Originating the right with the author was originally just an artifact of the need for it to start somewhere.
Rather along the lines of the drivers-license-for-non-drivers that some states issue for people who can’t drive, but need to cash checks, copyright started as a censor’s license for uncensored texts.
This discussion of copyright history is fascinating, but I am missing one point about contemporary copyright.
I am a school band director and I routinely purchase (with school funds) music for my band to play. The arrangements and original works that I purchase are clearly intended for school groups such as mine. This is evident by such markings as “Beginner Band” or “Grade 2”, and such on the cover. I know that my purchase does not grant me the right to make photocopies of the parts, score, or even the cover.
However, what gives me the right to perform the piece in public? Clearly, this seems an intended use for the work, but where is it explicitly stated that I may do that? I have been told (in publisher’s literature) that I may not record the work and distribute it to my students. I can make a recording for classroom instruction and evaluation, but I cannot distribute it, even without charge. Why not? I have even read that I am not to allow parents to videotape the band performances. Instead, I am to hire a professional recording company, who will pay the appropriate licensing fees and sell the recordings. For very special performances with very large audiences, we do that, but for more mundane performances, that makes no economic sense for the recording company.
What if I charge admission for the performance of copyrighted works? Does that change my performance rights?
As a musician, I have played professional and semi-pro gigs where the music is rented and the license grants x number of performances within a certain range of dates. I have never seen anything like that on school music. All I ever see is “copyright [date], Giant Publishing Co., All Rights Reserved”. So, did my school’s money buy us any rights at all besides the right to look at the music?
It very possible that this is not explicitly stated, but it might very well be a logical implication. If you are sold sheet music that is clearly intended for a school group to perform, the law will not be so obtuse as to pretend that you have bought it for no reason.
Why not what? Distribution of a recording of a work is one of the exclusive rights of the copyright holder. They have chosen to explicitly deny you a license to do that.
A lot of this is probably managed through compulsory or mechanical licensing like this: http://www.bmi.com/licensing/forms/concertwind.pdf
I’m sure there’s more to it, but I won’t have time to think about it until this evening.
Ah. Here is a pretty good guide: http://www.menc.org/information/copyright/copyr.html
A couple of other good sources:
http://www.bands.org/Public/resourceroom/copyright/copyright_guide.asp
http://www.uncbands.org/symposium/handouts/Spede-Copyright.pdf
I do not like that, in part 2, discussion of criminal prosecution seems to be poorly researched. It is almost as if you merely asked someone at the RIAA to tell you about it. The only criminal provision for infringement is found in the No Electronic Theft (NET) ACT. This provision requires infringement of a retail value of more than $1,000. Furthermore, simply proving copying or distribution, which is all that can be proven in your typical non-commercial file sharing case, is not sufficient to show willfullness. Neither the NET Act or this restriction are in the article. Instead, this vague sentence is used:
“In order for the violation to be criminal, it must be willful. That means the defendant knew that copying was infringement or showed reckless disregard for the copyright holder’s rights. The fact that you aren’t charging money for copies doesn’t get you off the hook. If you copy a hundred $10 CDs (we’re talking retail price here), you could be charged with a crime, and you could be sued for copying even one. Those statutory damages add up quickly.”
There is no explaination for why the 100 x $10 has any significance. The reader is left with the impression that the most important factor is that the infringement is “willful”. This kind of deliberate obfuscation is exactly what the RIAA does when it makes technically-correct-but-actually-deceptive fearmongering statements.
But let’s get to the heart of why this is sloppy research: To my knowledge the criminal provisions in 17 USC section 502(2), which is what applies to file sharing, has not been enforced. There are a few token cases, but those involved things like mass software piracy, which is usually taken more seriously than peer-to-peer music sharing. Even when Ashcroft was around, he knew that throwing good citizens in jail for downloading britney spears was a terrible idea. The RIAA leaned on him to make examples of some people, and he refused. Don’t you think if a law is unenforced against the file sharers, that belongs in a discussion of the consequences of file sharing/infringement? That is the kind of issue to research since it is something the SD readers would really care about. “The truth about the consequences of copyright infringement” would make for a good article, and would open a lot of eyes.
I also think it is wrong to simply state the 30k and 150k numbers with no discussion of ACTUAL awards. Other experienced attorneys in this field have told me that actual awards are on the low end of that scale. Most of the copyright enforcement business is really about scaring people into settlements, not going to trial, because it just isnt worth it financially to spend more on your lawyers to take some person to trial than you’ll get from any judgment. In addition, there are MAJOR problems that the RIAA and MPAA have in proving up their cases when it comes to file sharing. It would also have been nice to know what the results have been with the many thousands of RIAA civil suits. Bear in mind the RIAA cherry picked those people to sue from millions of possible targets. I havent followed those cases for a while so i dont know whats happened with them.
Anyway I was hoping for some robust research since this is the SD after all. As someone who knows a bit about the field, but is far from an expert, I was disappointed to see a lot of the same things you can easily find just by spending a few minutes on google.
Title 17, Chapter 5, § 506. Criminal offenses
This is from the Copyright Act itself. It explains the reference to willful infringement and to the significance of the 10 x $100 reference. No other act needs to be cited.
Their research appears to be quite a bit better than yours.
There isn’t one. Do you mean 17 USC section 502(b)? Copyright injunctions are often granted, and they are certainly not limited to file sharing cases. Most of the staff reports have been concerned with print cases, which do have a long history in law, rather than file sharing cases. Maybe they’ll get to those later.