Fundamentals of Copyright Law

Copyright is the combination of legal rights that are exclusive to those who have made original creative contributions through literary, artistic, and certain scientific works. Once these are created and fixed in a tangible medium they can be protected by copyright, the aim of which is to protect the expression of an idea of the creator, not the idea itself.

What rights does copyright confer?

Copyright grants the following rights over a determined work:

a) Right to reproduce b) Right to distribute c) Right to perform d) Right to display e) Right to create works that derive from the original work over which one has copyrights

a) Right to reproduce:

The holder of a copyright has the exclusive right to reproduce the specific work. They may authorize, limit or prevent others from reproducing or copying the work as a whole or substantial parts of it.

This right is by far the most important right granted to the holder of a copyright, being only limited by Fair Use.

b) Distribution rights:

The holder of a copyright has the right to determine in what way, if any, access to the work is going to be given or offered to third parties (the public). This is limited to the “first sale” of a copy of the work; posterior distribution of the specific copy previously acquired by a buyer is to be freely determined by the owner of the acquired copy.

For example: A specific book can only be sold in hardback and acquired in determined stores or locations. However, due to the “first sale” principle, once they have bought the book, the owner of the physical copy may then sell it to anybody they wish.

c) Right to perform:

Owners of copyrights have the exclusive right to perform or allow others to publicly perform their works. Performance from a third party may only be done with prior authorization from the copyright holder.

For example: If a group of people wish to perform a play in public, they need to have the authorization of the copyright holder. Of course, this only applies if copyrights over the play still exist.

d) Right to display:

Owners of copyrights have the exclusive right to display or allow others to publicly display their works. Third parties may only do so after prior authorization from the copyright holder. This right is limited to the following works;

  • Literature
  • Music
  • Choreographies
  • Pictorial, Graphic, and Sculptural Works
  • Images from audio-visual works.

e) The right to create works that derive from the original work over which one has copyrights:

A derivative work is one that uses all or part of a copyrighted work while adding new elements that are copyrightable.

For example: A painting based on a drawing, or a screenplay based on a book.

What can be protected by copyright?

Copyright protects creative works that are original and that have been fixed in a tangible medium. Therefore, works are not protected when they have been merely thought by their creator. These must be exteriorized through a source that allows for others to perceive such creation repetitively, either directly through their senses or through a device (e.g. a record would be the device, the song would be the creative work protected by copyright).

Is software protected by copyright?

Yes. All software is a combination of code (source code) being executed (object code). The unique code that is the base for the software is protected by copyright. Nevertheless, it is important to consider that if your software includes other software or code, these may have open licenses that may lead the resulting code to be open source, and therefore not giving the creator copyrights over his creation.

Some types of software-related innovation may be eligible to be protected as a patent in some jurisdictions, if these are indivisible from an invention that may be patented. However, to check if such software is patentable, you should consult with a specialized attorney from the country or countries where the patent would be applied for.

Are works in digital formats protected by copyright?

Yes. Works that can be protected by copyright will be protected if they are fixed in any tangible medium, even if they are created and maintained in digital format. Therefore, a painting, drawing, article or book that has been created and stored in a computer, but never actually printed, will be protected by copyright just as would a painting or drawing that has been done on a canvas or an article or book that has been published on paper.

Can ideas be protected by copyright?

No. Protection is not granted for the idea itself, but rather for the way in which the idea is expressed. For example, the person who first wrote about Zombies does not have the right to prevent others from using the concept of flesh-eating corpses that walk around spreading panic in their works; however, one will have protection over the storyline and the way the story is expressed.

Copyright authorship and ownership

In most countries only a natural person (human being) can have authorship over a work or creation that may be protected by copyright. It is important to make the distinction between authorship and ownership of a work protected by copyright. Although both titles may belong to the same person (and usually do), it is possible for a person different from the author to have ownership over a work (and therefore copyrights). The title of ownership may be held by a legal entity or company.

Is being the owner of a work the same thing as being the author of a work?

Authorship and ownership are two different concepts. Generally, the creator of a work is referred to as the author or originator. The person, company or entity that holds publishing rights, rights to modify the work, rights to republish the work, etc. are referred to as the actual owners. Although as a general rule ownership and authorship go hand in hand, in some cases the author of a work may not be the owner of the rights that copyright grants.

For example, in most jurisdictions if someone is hired specifically to make a work, or an employee creates a work for his employer, authorship will still be held by the actual creator, but copyrights and ownership rights will belong to the employer. In the United States, the employer may even be considered the author under determined circumstances.

What is co-authorship?

Co-authorship exists when two or more persons collaborate and contribute directly in a substantial way on a single indivisible work. Although authorship is limited to natural persons (human beings) in most countries, the number of persons that may hold the title of author (Co-authorship) has no limit.

Who owns a copyright?

As a general rule copyrights will belong to the author or creator of the work. However, exceptions do exist.

Who has copyright over works published anonymously or under a pseudonym?

The Berne Convention for the Protection of Literary and Artistic Works, of which 168 countries are members, states that if the author has published his works anonymously or under a pseudonym, they still will be the holder of the copyright. However, the publisher of the work will be considered as his representative and will have the power to enforce such rights. Evidence may be presented to show that someone else has been appointed by the author to act as their representative in copyright related matters.

Who is the owner of a copyright if you create a work for an employer as an employee?

The employer would own the copyright over the creation made by the employee hired to do the specific work.

What consequences relating to copyright exist when a person is hired to make a work (“Made for Hire” works)?

In this case, the copyright would be owned by the one who did the hiring and not by the person who created the work.

Copyright Validity and Registration

Original works are protected by copyright as soon as they are created and fixed in a tangible medium that allows for them to be perceived by others, either directly (work on a paper) or through the assistance of a device or machine (Mp3 recording). It is NOT necessary to register a work for copyright to exist nor does it need to be made public. However, registration is recommended and may grant additional rights in certain jurisdictions.

Works created have protection during the entire life of the author and for a determined period of time after the author’s death, during which copyrights will be held by his or her heir(s).

The period of time varies depending on the country where the work was first published or on the nationality of the creator. The duration for which copyright will be protected depends on the country of origin of the work; the vast majority of countries establish that the period of protection after the death of the author is between 50 to 90 years. In the US and EU member countries, the period of copyright protection after the author’s death is 70 years.

In works where co-authorship exists, the period of protection after the death of the creators will begin after the death of the last author.

In the case of works that are created for a legal entity, "work made for hire" or works created anonymously or under a pseudonym, the period of protection will be for a determined period of time from the date of publication or creation, whichever is shorter.

Is registering a work necessary to have copyright protection?

No. Registering your copyright is not necessary for protective rights to exist. However, for practical reasons it is highly recommended. Registration provides a public record and will serve as evidence of validity and ownership.

In the case of the USA, registration is necessary to sue third parties if they have infringed on your rights. Whether it is already registered in another country or not, it will also have to be registered in the USA to be able to sue someone for infringing your copyright. Furthermore, you will only be able to claim statutory damages and attorney’s fees in cases of copyright infringement if it is registered.

Why is registering your copyright recommended?

In the United States having registered a work is necessary in order to eventually initiate legal actions against someone who is infringing on your copyright, or at least for such actions to be worthwhile. Only holders of registered copyrights may be awarded statutory damages by a court in the United States.

In most other countries voluntary copyright registration can be done through government offices. The general benefit and reason one should seek copyright registration is to acquire a presumption of ownership. Disputes may arise regarding who is the creator of a work and holder of the copyright. In these cases, having your copyright registered in a national office in the jurisdiction of interest may prove beneficial if a dispute is to arise, as registration will grant presumption of ownership and a date of creation. However, such presumption is rebuttable if evidence proving the contrary is presented.

Does copyright automatically have worldwide recognition (international copyright)?

It’s important to remember that copyright exists as soon as a work is created and fixed in a tangible medium. There is no such a thing as international registration of copyrights. However, the vast majority of countries are a part of the Berne Convention or other international treaties that have allowed foreign works, for the most part, to be protected by copyright regardless of the country of publication or the author’s nationality. Only a handful of countries (e.g. Eritrea, Ethiopia, Turkmenistan) don’t have any apparent copyright legislation or have not signed international conventions regarding this subject.

Are there exceptions or limitations to the rights granted by copyright?

Yes. The following are general exceptions recognized by most jurisdictions or countries.

  • Works in the public domain. They are works that are no longer protected by copyright and can be freely used, in any way, by anybody.
  • Works whose creator or copyright holder renounces or forfeits his rights over the work.
  • Works whose period of copyright protection has expired.
  • Names of persons, objects or geographical locations are not protected by copyright.
  • Titles and slogans are not protected by copyright (but may be protected as trademarks).
  • Ideas and facts are never protected by copyright. Copyright can protect the way an idea or fact is expressed.

Fair Use/Fair Dealing

Fair Use is a set of exceptions established by a country’s law (in the U.S.A., it is a doctrine) in which third parties may freely use copyrighted works for a determined purpose, without prior authorization from the copyright holder, without infringing on the copyright. It is important to bear in mind that some countries are more lenient in what may constitute fair use.

Examples of generally accepted practices of fair use/fair dealing:

  • Criticism and commentary: One may quote or show elements or reasonable portions of a work when this is done with the purpose of commenting on such work or criticizing it.
  • Parody and Satire: Parts of works that are copyrighted may be used for parody and satire. However, parody and satire should not affect the work’s economic value.
  • News reporting: Copyrighted work may be used to illustrate news reporting or commentary of current or past events. It may also be used as proof or substantiation of points that are being addressed in the news report. Inclusion of copyrighted works in these cases should be meaningful to the audience and serve the purpose of illustrating or as basis for the news being presented.
  • Incidental Inclusion: When part of a work is included in another unintentionally.
  • Accessibility for someone with a visual impairment: Many countries have their own legislation or are part of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. If copyrighted works, such as books, have not been made available in a format that allows the visually impaired to have access to them (Audio Books or Braille), copies in these formats can be made without the authorization of the copyright holder.
  • Library Archiving: Most jurisdictions allow libraries to make copies of works without the copyright owner’s authorization. In the U.S., libraries can make an additional copy of a work that is already part of their collection, as long as no additional commercial gain is had. Such copies must be accessible to the public and include a notice of copyright.

The © symbol and “All rights reserved” mention in works

Adding the © symbol and “All rights reserved” mention in works is a formality to claim protection. Although it is usually included in works, it is not compulsory. If the symbol and declaration are not added, the copyright holder will still benefit from all the legal protection and recognition that national and international law grants.