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Understanding Copyrights: Part One -- Defining Intellectual Property

COW Library : Business & Marketing Tutorials : Ron Lindeboom : Understanding Copyrights: Part One -- Defining Intellectual Property
CreativeCOW presents Understanding Copyrights: Part One -- Defining Intellectual Property -- Business & Marketing Editorial


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In this article, Creative Cow's Ron Lindeboom begins a series exploring copyrights and intellectual property rights of content creators, artists, authors and others. In this first installment of the series, he examines the history of intellectual property rights, their origins in American and British law, along with the basics of what defines intellectual properties which can be copyrighted.



Disclaimer: This article series is in no way intended to replace legal counsel. All information contained in this article series on the Creative COW web site is copyright by CreativeCOW.net. All rights reserved. None of the information contained on this site may be reproduced in any way without express permission of the copyright holder. The information should not be relied upon as legal advice on specific facts. Creative COW members and web site visitors are urged to consult legal counsel regarding any particular situations or legal inquiries.

The Origin of U.S. & British Copyrights: Early Copyright Laws
When the founding fathers of the United States of America drafted the documents that would frame the guiding principles and rights of the then-fledgling republic, one of the first principles that they secured was the right of intellectual property owners to own their works. In doing this, they set into motion the most prolific era of invention and growth in the history of mankind -- in part due to both the invention and competition that it spurred worldwide. This law came about in part due to the "Colonists'" reaction to a long-standing (from the late 15th through the early 18th centuries) British law that recognized the right of ownership of a physical object but failed to recognize the importance and to grant title to those whose works were intellectual in nature. But while the Americans may have taken a greater step in guaranteeing author's rights, the seeds for these rights had already been sown in Europe.

The first steps of this revolution of ideas fomented in the minds of authors and other intellectual property creators who, for over two hundred years in Britain, found that whenever they sold their story to a publisher or printer, that single payment was all they would ever see for their efforts. If the book were a "monster" and sold year after year, it made absolutely no difference -- the author received their initial payment and that was that. Imagine Shakespeare receiving a single check for "A Midsummer Night's Dream" or "Romeo & Juliet" and then watching as his works were reprinted again and again. This smoldering of ill will towards existing laws by authors, saw the British crown pen the first-ever law guaranteeing rights to authors. While the law may not have been perfect, Queen Anne and the British Parliament set the stage for today's recognition of author's rights with the then-revolutionary Statute of Eight Anne, as it has come to be known today. Eight Anne was the first law to recognize that if a people were to grow in education, culture and refinement, then the ones creating these intangible works must have guarantees and protections -- that is, if they are going to eat and create more of these works.

So in 1710, the British Parliament authored the first copyright law that protected authors -- in the eighth year of Queen Anne's rulership -- a law that came to be known as the Statute of Eight Anne (although the official title was "An Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies During the Times Therein Mentioned"). The Statute of Eight Anne gave all rights of a literary work to the author or to those to whom the author sold that right. This law granted a right that lasted for 14 years, although an author could seek a renewal that lasted for another 14 years -- after that, all rights to the work fell into the public domain.

Following Eight Anne's adoption, British booksellers and publishers who had previously owned all rights to books, contested the Statute of Eight Anne and used subtrifuge as well as flooding the market with books that they claimed ownership of -- but which Eight Anne clearly defined as being in the public domain. This battle raged until 1774 when the House of Lords ruled that the Statute of Eight Anne superceded any claim that the printers may have had under common law. Common law had afforded them perpetual rights to the works they had heretofore owned and printed and they were eager to undo the effect of Eight Anne. Unfortunately, the House of Lords later interpreted the law to include a gaping hole that the Americans recognized and quickly closed in their first attempt at copyrights -- the House of Lords failed to recognize the works that were as yet unpublished and defined those works as remaining under common law and subject to the book publishers perpetual ownership. Oh well, it was a start...

In 1798 in Article 1, Section 8 of the Constitution of the United States of America, the framers of the Constitution outlined an article which would

"...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."

When the Americans adopted their own first copyright laws, they opted to adopt the Statute of Eight Anne as their model and granted first rights for 14 years with a single renewal available afterwards that deeded another 14 years. Later, in 1831, Congress expanded the first grant to a period of 28 years with a single 14 year renewal that could be applied for.

Today's U.S. Copyright Laws:
Basics of "Intellectual" vs Tangible Property: We easily understand the principle of "physical" property because it is tangible and for thousands of years there have been laws and codes to protect the rights of tangible, physical property. But it is much harder to define intellectual property, due to its being "intangible" and the laws that protect this kind of peoperty are much newer as you learned above in section one of this article.

Let's look at a simple illustration of the difference between tangible and intangible property using a book as our example: If I own a book, the physical volume itself, it is mine. I can read it, give it away, write notes in it, underline key phrases and when I am done with it and do not need it anymore, I can then throw it in the trash, give it away or sell it to a used book store. But... But I cannot make copies of that book while it is within its period of time when its rights have been granted to the one who holds the right to make copies, etc. -- hence, "copy rights." I possess the book, its cover materials and all the paper that go into making it but I do not own the intellectual content of that book.

The intellectual content or property of a book is not the simple words that make up the book. After all, the words are found in any dictionary and anyone is free to use them. But the specific arrangement of the words is what is granted its copy right to the one who took all the time and effort to arrange them in the sentences and structure that communicates their ideas. The author is recognized for their original work in the specific arrangement of the words that makes up their original work.

Intellectual property ownership rights have grown until today in the USA, most copyrights are issued which extend for the life of the author plus 70 years -- this latter period was added to allow the heirs of the author to benefit from the work of their forebearers. During the period when a work is copyright, these rights can be assigned or sold but in no way can they be ignored -- not if you do business in the United States or other areas that recognize these rights.

Copyrights protect the owner of intangible works such as:

  • Drawings, paintings, sculpture and other works of art,
  • photographs, films and videos,
  • stories, stageplays, television and movie scripts and other writings,
  • software programs,
  • music, voice and sound recordings,
  • websites and web-based content,
  • and many other works of an intellectual nature.

Copyrights are designed to protect the rights of authors, composers, artists, designers, playrights and inventors. They are the only ones who hold the rights to their work (unless they sell, share or otherwise assign these rights) and they also possess exclusive rights to create "derivative works" based on their original work. Some works cannot be displayed or performed in public without the permission of the copyright holder. Many intellectual property rights holders license their rights, especially in our industry, in return for royalty payments and other forms of remuneration. These licenses can be assigned for a fixed time in limited situations or they can cover as broad a scope as assigning an exclusive license worldwide.

While "copy rights" are indeed restrictive and have been legally argued as a form of censorship that limits the free flow of ideas and inventions, without these copyrights in place, there would be little incentive to spend the time, and often the money, to develop these intellectual works and inventions.

In part two of this article series, we will look at the "Fair Use" provisions of the copyright laws and some examples of what is and what is not legally allowed under the Fair Use provisions. Watch for part two of this series very shortly as I am working on it right now...

-- Ron Lindeboom


To discuss this or other business-related questions,
please visit Creative COW's Business Practices & Marketing forum.

###


©2005 by Ron Lindeboom and CreativeCOW.net. All rights are reserved.


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