Rights and Copyrights: GEN 230 Creative Expression: Literary Arts: Fall 2007

The content can come from many sources.

public domain - can be used without license or attribution, though attribution is almost always preferable.

appropriately licensed - ex: creative commons

copyrighted by you - you made it from scratch

copyrighted by others and used with permission

copyrighted by others and used without permission, in which case it must stay on your personal computer and the school's networks to qualify for academic fair use

Public domain comprises the body of knowledge and innovation (especially creative works such as writing, art, music, and inventions) in relation to which no person or other legal entity can establish or maintain proprietary interests within a particular legal jurisdiction. This body of information and creativity is considered to be part of a common cultural and intellectual heritage, which, in general, anyone may use or exploit, whether for commercial or non-commercial purposes. Only about 15 percent of all books are in the public domain, and 10 percent of all books that are still in print.

If an item ("work") is not in the public domain, it may be the result of a proprietary interest such as a copyright, patent, or other sui generis right. The extent to which members of the public may use or exploit the work is limited to the extent of the proprietary interests in the relevant legal jurisdiction. However, when the copyright, patent or other proprietary restrictions expire, the work enters the public domain and may be used by anyone for any purpose.

All information will eventually be in the public domain, where it belongs for the good of us all (the "commonwealth"). Copyright laws grant the copyright holder certain rights for a certain amount of time. The US Constitution, for example, has only 27 words.

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

Anything you express is automatically copyrighted as soon as you fix it in tangible form. You don't have to fill out any government forms or register anything anywhere. Note the emphasis on the expression, not the ideas behind the expression. You can't copyright an idea.

The problem is not with the rights. Attribution is very important. I've not heard any arguments that says it should be okay for me to put my name on Shakespeare's works and then attempt to collect royalties from every college production of Hamlet.

Also, please note the difference between copyrights for words and images and sounds and the right of publicity, which has more to do with the First Amendment's freedom of speech and press.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The various state right of publicity laws -- and a set of confusing court decisions -- recognizes that celebrities -- but not people who aren't celebrities -- have a right to control the use of their identities, their names and likenesses, for commercial purposes. The gray words:

celebrities -- is Elvis still a celebrity? What about Einstein or Beethoven or Picasso?

commercial -- if I want to put a picture of Tiger Woods on my trivial pursuit answer card, do I need his permission to use him as an answer in the game? to use his likeness on the answer card?

Look how Major League Baseball, a corporation, is sacrificing long-term viability for short-term profits by using this "right of publicity" to suppress fantasy baseball leagues. A chilling effect? Yes, but not over copyrights.

Like no other corner of American popular culture, baseball communicates in numbers. From .406 (Ted Williams's 1941 batting average) to 755 (Hank Aaron's record home run total) to countless digits bandied about water coolers every morning, statistics convey ideas and images that, even overnight, become inseparable from the players to whom they belong.

This relationship between players and numbers, so often romanticized, is now being stripped to its skeleton in a lawsuit with considerably wider ramifications. While the dispute focuses on fantasy baseball — in which millions of fans compete against one another by assembling rosters of real-life major leaguers with the best statistics — a real legal question has arisen: Who owns that connection of name and number when it is used for such a commercial purpose?

Many onlookers have cast this issue as a tiff over batting averages — as if children were squabbling over the backs of baseball cards — but legal experts are saying it could affect the wider arena of celebrity rights, freedom of the press and even how the press is defined as the Internet age unfolds.

The dispute is between a company in St. Louis that operates fantasy sports leagues over the Internet and the Internet arm of Major League Baseball, which says that anyone using players' names and performance statistics to operate a fantasy league commercially must purchase a license. The St. Louis company counters that it does not need a license because the players are public figures whose statistics are in the public domain.

Several categories of material are generally not eligible for federal copyright protection. These include among others:

Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Examples

You put your name on someone else's writing, print it out, and hand it in as your own, hoping the boss or teacher won't notice.	That's wrong and unethical with or without the Internet.
You put your name on someone else's Web page, carefully take out every indication in the code that someone else had anything to do with it. You then post the page to your Web site and take credit for it.	In addition to being wrong and unethical, it's also foolish because it's too easy for the original author to find you through a search engine.

What's the problem?

play your iTunes music on your computer

watch certain videos on your iPod

play your just-burned .mp3 CD on your car's CD player

watch a DVD you bought in Europe on the DVD player you bought in the US

import music from a store-bought CD into MS Movie Maker

watch last night's TV show (without the commercials) tomorrow

do much of anything with what you buy at "legal" music stores

In other words, why are there incompatibilities between hardware devices, between software formats, and between hardware and software? I know why I can't play a cassette tape on a vinyl record player -- they are made out of atoms and they don't fit together. But the music and video are all bits. They want to flow freely but they are forced into proprietary formats and DRM systems that keep them apart. Why?

Napster, Kazaa, and now Bit Torrent are showing the cracks in the music industry's attempts to have hardware and software prop up old business models. Skype is doing the same for the telephone industry. Movies and book publishing, especially textbook publishing, aren't far behind. What's next?

The problem is with the copy

Copyright law is based on a world of "real" property made out of atoms that can be owned and sold but can only be in one place at a time. Copyright law assumes scarcity. There are only so many copies, a quantity. The first copyright laws in Europe go back only five hundred years.

Information stored in bits doesn't exist in the same sense. It is not scarce. It's on its way to being everywhere all the time. It is thus becoming almost "valueless" in the traditional sense of value because it will be of no value to me to have it if you have it, too.

The traditional value to me is in your not having it. In addition, of course, you must be willing to pay me for it or for what it empowers me to do that you can't. My maternal grandmother's secret bread recipe died with her. Coca-Cola has built a very valuable business on a secret beverage recipe. To the extent that the Internet spreads, there will be no more secrets in that sense.

It will turn out that Coca-Cola's real advantage (just like my grandmother's) is in the marketing department. To preserve shareholder value, it had better turn out that way because they've outsourced everything else, specifically production and distribution.

Do the old copyright laws still apply?

How should we encourage / reward people for producing intellectual property like songs, music, novels, poems, and web pages? Should we encourage them at all? Why is the government involved?

Throughout human history, almost all intellectual expression was "given away" or sold for a pittance. Laws allowing private ownership of property have depended on individual or legal force, often violent. A thief gets his hand cut off.

Laws allowing private ownership of intellectual property are only a couple of hundred years old. They are designed to be temporary; the law puts everything in public domain unless specifically and temporarily exempted.

In the old days, copyright was a simple matter. Before the Information Age, there was no real distinction between information and its physical form -- a copy, say, of a book. Copyright is a relatively enforceable proposition when you're talking about physical stuff. It's difficult to make good, physical duplicates, so copyright owners have a chance of detecting counterfeits, tracking down the copiers, proving that their rights were infringed, and stopping the copying. By the same token, physical copies have actual value, in proportion to their scarcity.

But here's the Internet, which at a very fundamental level is all about copying. ... Because of that, there's probably no way to enforce digital copyright.

Look at the absurdities

The Internet is by far the largest systematic violation of copyright law. Copyright violation is built into the very nature of the Internet. For example, a copy of every Web page and every image you see is on your PC in your browser cache. Unless you specifically delete it, it stays there for months if not longer.

Early rock music -- 1954 -- is starting to come into the public domain in Europe. Every year, a new group of rock songs will get added. So if I download a song off a European site that is public domain there and still copyrighted here, mix/mash that song, and then upload it to a server back in Europe, have I violated copyright laws? What if I got it from a server in Europe and uploaded it to a server in the US?

We live in an Information Age, yet the Generally Accepted Accounting Principles don't account for the knowledge of an organization even though it is often the sole sustainable competitive advantage in a quagmire of inefficiency. Laying off human beings who carry this knowledge may be exactly the wrong strategy, yet the bean counters insist.

Dickens's 1842 Reading Tour: Launching the Copyright Question in Tempestuous Seas
by Philip V. Allingham
The Victorian Web, January 2001

The first American "pirate" was probably Benjamin Franklin (1706-90), who was, among other things, a Philadelphia printer who re-published the works of British authors in the eighteenth century without seeking their permission or offering remuneration. Novelists, of course, were not the only writers affected. The complaints of poet William Wordsworth, for example, which began quietly in 1808, grew louder and more eloquent over the course of the next three and a half decades;

by 1837 the matter had begun to absorb large amounts of his time and energy. He went to London to lobby the House of Commons, enlisting the aid of the popular dramatist Thomas Noon Talford as his parliamentary champion.

During both his North American reading tours of 1842 and 1867-68, Dickens lobbied the American Congress to recognize the copyright of British authors, but made little headway because American publishing was undercapitalized and needed to be able to plunder British and continental works in order to survive. Indeed, during his first visit Dickens's raising the controversial issue made him anathema in certain political circles and in the American press.

Does Bill Gates consider it "stealing"? This blog entry quotes a Wall Street Journal interview with Bill Gates.

Current copyright law goes too far.

The protections given corporate copyright owners are out-of-whack with consumer expectations.

So everyone ignores the law. Everyone?

Wall Street Journal: You watch physics lectures and Harlem Globetrotters [on YouTube]?

Bill Gates: This social-networking thing takes you to crazy places.

WSJ: But those were stolen, correct?

Bill Gates: Stolen's a strong word. It's copyrighted content that the owner wasn't paid for. So yes.

Fair Use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

When you are making things, it is your obligation to determine whether there are any copyright restrictions and to satisfy them.

This is a similar but separate activity from citing or documenting your sources. Regardless of whether your sources are still copyrighted or have been in the public domain for centuries, you still must acknowledge them, preferably in a standard format such as the MLA or APA formats you used in previous courses. And now that so much is online, a link to the original is a common courtesy.

Derivative works

The "augmented poetry" that you're making for this course is called a "derivative work" in the copyright law. The right to authorize derivative works is one of the rights reserved for copyright holders. Thus, if you want to make a derivative work that involves any, even small portion, of copyrighted work, then you must get the permission of the copyright holder.

A "derivative work," that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an "original work of authorship." Derivative works, also known as "new versions," include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a "derivative work" or "new version."

A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable. WHO MAY PREPARE A DERIVATIVE WORK? Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.

Learn more

The full potential of the NII will not be realized if the legal protections that extend to education, information and entertainment products and their use in the physical environment are not available when those works are disseminated via the NII. Creators and other owners of intellectual property rights will not be willing to put their investments and their property at risk unless appropriate systems are in place -- both in the U.S. and internationally -- to permit them to set and enforce the terms and conditions under which their works are made available in the NII environment.

comic book about the legal barriers documentary filmmakers in particular must hurdle, or simply avoid

A simple idea blinds us, and under the cover of darkness, much happens that most of us would reject if any of us looked. So uncritically do we accept the idea of property in ideas that we don’t even notice how monstrous it is to deny ideas to a people who are dying without them. So uncritically do we accept the idea of property in culture that we don’t even question when the control of that property removes our ability, as a people, to develop our culture democratically. Blindness becomes our common sense. And the challenge for anyone who would reclaim the right to cultivate our culture is to find a way to make this common sense open its eyes.

So far, common sense sleeps.

The Stanford University law professor and cyberadvocate redefines the parameters of the Internet.

Amid the chorus of techies and Web heads proclaiming that cyberspace is inherently immune to regulation, a lone voice has consistently insisted quite the opposite. Indeed, Stanford University law professor Lawrence Lessig has written that the Internet is rapidly succumbing to a triad of ill-considered law, restrictive technology, and commercial monopolization that threatens its very existence as a platform for freedom, innovation, and growth.

Creative Commons provides free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry. You can use CC to change your copyright terms from "All Rights Reserved" to "Some Rights Reserved."

When Rights Collide: Principles to Guide the Intellectual Property Debate
by Clyde Wayne Crews Jr. and Adam Thierer
Cato Institute, June 2001

Digital Rights Management or DRM is an umbrella term for any of several technologies used to enforce holder desired policies for controlling access to digital data (such as software, music, movies) and hardware. In more technical terms, DRM handles the description, layering, analysis, valuation, trading, monitoring and enforcement of usage restrictions that accompany a specific instance of a digital work. In the widest possible sense, the term refers to any such management.

The term is often confused with copy protection and technical protection measures (TPM). These two terms refer to technologies that control or restrict the use and access of digital media content on electronic devices with such technologies installed.

The topic is controversial. DRM advocates say DRM technologies are necessary to allow rights holders to exercise their rights, prevent revenue loss due to illegal duplication of their copyrighted works, and enable more effective market segmentation. DRM critics argue that the phrase "digital rights management" is a misnomer and the term digital restrictions management[1] is a more accurate characterization of the functionality of DRM systems, since the mechanisms allow the enforcement of any restrictions desired by the publishers, regardless of whether those restrictions actually correspond the publisher's legal rights. They claim that transferring control of the use of media from consumers to a consolidated media industry will lead to loss of existing user rights and stifle innovation in software and cultural productions.

a United States copyright law which criminalizes production and dissemination of technology that can circumvent measures taken to protect copyright, not merely infringement of copyright itself, and heightens the penalties for copyright infringement on the Internet.

You paid good money for your CDs, and you expect to be able to play them anywhere, or transfer them to your iPod - or whatever cool gadget comes out next year. However, if the American music companies get their way, such transfers will be illegal. That's right: you won't be able to play your CDs on your music player!

What's going on here?

The Australia-US Free Trade Agreement requires new laws which prevent "circumvention of technological protection measures". Some companies want the government to go further and ban any access that the copyright owner doesn't allow. This means the music companies can decide how, when and where you listen to your music. Worse still, this law would apply to more than just CDs: games, software and movies are all included under the "technological" umbrella.

The Audio and Video Flags: Can Content Protection and Technological Innovation Coexist? | video
Hearing
U.S. House Subcommittee on Telecommunications and the Internet, June 27, 2006

Given the time and money that developing strong DRM can take (and the fact that pirates will crack the format anyway), media companies may simply settle for more basic systems that still exert "good enough" control. After all, if "hacking" can take diverse forms, so can DRM, and the content industry's victory with the DMCA shows that effective control is not simply designed in the laboratory, but in the halls of power as well.

Digital rights management (DRM) technology is rapidly becoming a concrete reality, built into the products that consumers buy and affecting the way people obtain and enjoy movies, music, books, television programs, and other digital content. It is natural that the creators and owners of content are seeking technical locks to protect that content from the piracy that digital networks have made easier than ever. At the same time, those digital locks on content will have a profound effect on how people view, watch, use, and share information - especially through the new and powerful forms of communication offered by computers and the Internet.

The "broadcast flag" - a method for protecting digital television broadcasts - has emerged as one of the first major debates over government mandates for DRM copy protections.

Remember the “Hollings bill” back from 2002? It was a bill that would essentially put a copyright cop in your consumer electronics and PCs—to ensure you didn’t do anything with content that wasn’t authorized by the content industry. The bill put copyright owners in control of innovation.

Here’s the US Senate Draft of the “Digital Content Protection Act of 2006.” Look familiar? It may go about it differently—but the DCPA is essentially the Hollings bill, only in pieces-parts.

Today, you can use any device you like with your television: VCR, TiVo, DVD recorder, home theater receiver, or a PC combining these functions and more. But if the broadcast flag mandate is passed, Hollywood and federal bureaucrats will get a veto over innovative devices and legitimate uses of recorded programming.

The mandate forces all future digital television (DTV) tuners to include "content protection" (aka DRM) technologies. All makers of HDTV receivers will be required to build their devices to watch for a "flag" embedded in programs by copyright holders.

When it comes to digital recording, it would be Hollywood's DRM way or the highway. Want to burn that recording digitally to a DVD to save hard drive space? Sorry, the DRM lock-box won't allow it. How about sending it over your home network to another TV? Not unless you rip out your existing network and replace it with DRMd routers. And forget about using open source TV tools. Kind of defeats the purpose of getting a high definition digital signal, doesn't it?

The radio broadcast flag is gaining momentum. House Representative Mike Ferguson (R-N.J.) is introducing legislation that would establish a broadcast flag for audio and also change the way in which the music industry licenses radio itself. The Audio Broadcast Flag Licensing Act of 2006, H.R. 4861, is quite a shocker. Or maybe not, depending on what brand of cynicism you like with your afternoon tea.

The bill would require all manufacturers of electronics to get approval from the FCC for any device that would enable the recording of digital radio.

Colleges Offer Music Downloads, But Their Students Just Say No; Too Many Strings Attached ...

The on-campus service at Penn State will give students free access to unlimited streams of music or access to "tethered" downloads that can only be used on a few PCs, and which will expire when the student stops subscribing to Napster. Students will have to pay full price--99 cents per song--if they want to keep a permanent download or burn the song to a CD.

As CEO of the Motion Picture Association of America, my principal concern is protecting the magic of the movies. So why should I care about a so-called broadcast flag regulation?

The answer is simple. I want to make certain that the American people will continue to have the opportunity to see our movies and television shows on free television in the digital age.

The digital era presents great opportunities and great challenges. The opportunities come with the high-quality, high-resolution pictures that greatly enhance the viewing pleasure of the consumer. The challenges lie in protecting that content so that it is not stolen and resold or rebroadcast by video pirates.

Without proper protections, it will be increasingly difficult to show movies, television shows or even baseball games on free television.

Broadcast flag technology protects the content of our shows from redistribution over the Internet.

Rights: Who Controls What

GEN 230 Creative Expression: Literary Arts - Fall 2007

Copyright basics