To understand copyright, it’s important to first understand the ∴First Amendment∴ It protects five freedoms, including the freedom to think what you want to think, the right to tell others what you think (freedom of speech and of the press), the right to gather together with others to discuss what you think with each other, and the right to ask the government to change.
The First Amendment is designed to promote democracy, further the search for truth, and enable self-expression. The news, history, science, and the arts thus all receive protection under the First Amendment. So do movies, music, videogames, websites and other forms of popular culture because these materials affect our political attitudes and shape how we think, feel and act.
THE PURPOSE OF COPYRIGHT
Copyright law protects works of “intellectual property” — creative expressions of ideas in fixed symbolic form. (Patent law protects the expression of novel ideas in the form of objects or processes.) Books, movies, music, paintings, photographs, websites, images, video games, performances, architecture, and software are among the many types of creative work protected by copyright.
Though we use the word “copyright” in singular form, it actually involves a bundle of several different rights.
Owners have the exclusive right to do and to authorize others to do these things:
- reproduce the work;
- distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- to perform the work publicly;
- to display the work publicly;
- to create derivative works; that is, to create new works based closely on the original, such as a translation of a book from one language into another, or making a book into a movie.
Copyright initially lasted 14 years, plus 14 additional years if the copyright owner renewed the registration. But the duration of owners’ rights has lengthened over the years. A work created today by an individual author will be protected by copyright for 70 years after the author’s death. Ownership control is even longer if the copyright is for a work commissioned by a corporation — either 95 years from the year of its first publication, or 120 years from the year of its creation.
As a result, a successful copyright infringement action gives the copyright owner the right to stop someone from printing, performing, sharing or otherwise disseminating the work. Infringing works can be seized and destroyed. Legal scholar Rebecca Tushnet has pointed out that a successful copyright lawsuit can lead to “book burning mandated by law.”
THE FAIR USE DOCTRINE
Fortunately copyright law has an important exemption, a way to ensure that copyright law does not become a vehicle for preventing uses of copyrighted material in the service of society just because an owner wants to maximize profit. Interestingly, today we recognize that while fair use may diminish the profits of a copyright holder to some degree, doing so can simultaneously provide a stimulus to other profitable economic activity and support for the information economy. In the words of the president of the Computer & Communication Industry Association (CCIA), an advocacy organization that represents the computer, Internet, information technology, and telecommunications industries, “As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy.”
Fair use helps ensure that people have access to the information they need to fully participate as citizens. From this perspective, every citizen needs to understand fair use. The fair use doctrine allows users to make use of copyrighted works without permission or payment when the benefit to society outweighs the cost to the copyright holder.
The fair use doctrine, which is found in Section 107 of the Copyright Act of 1976, states that the use of copyrighted material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” is not an infringement. Courts consider these factors in determining fair use: the purpose of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the original work; and the effect of the use on the market for the original.
In recent years, legal scholars have found that courts return again and again to two questions in deciding if a particular use of a copyrighted work is a fair use: Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original? Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
Applying the doctrine of fair use requires a reasoning process, not a list of hard-and-fast rules. It requires users to consider the context and situation of each use of copyrighted works. Thus, an extremely important element of the context and situation is the community of practice within which these uses occur.