Chapter 3
The Copyright Rights: The Coin of Copyright
What precisely do we mean by copyright? The copyright law sets down six exclusive rights of owners:
- The right to reproduce the work.
- The right to prepare derivative works based on the original.
- The right to distribute copies to the public.
- The right to perform the work publicly.
- The right to display the work publicly.
- The right to copy, publicly distribute, and prepare derivative works that are digital audio sound recordings.
To copyright purists, these rights are expansive and embrace every conceivable way in which a work can be copied. Therefore, as technology revolutionized modern communications, copyright kept pace. Whether on radio and television, photocopy or fax machines, the Internet or transnational digital satellite signals, copyright law applies.
These six rights, and all exploitation associated with them, are within the exclusive province of the copyright owner. They represent economic gold, the coin of copyright, because they can be sold, licensed, or loaned for a fee. They can also be given away for nothing. These rights define copyright interests. But read the listing carefully. They also set parameters: If a third party wants to use another's copyrighted work in a way not embraced within these rights broadly defined, then copyright law may not apply.
The most significant area open for discussion is the public vs. private distribution, performance, and display of works. This area is at the focal point of a current digital debate to which we often return, namely, whether transmitting copyrighted works via e-mail or the Internet is an exempt private distribution or a public transmission (and thus a copyright infringement). Some courts have already ruled that unauthorized electronic transmissions via bulletin boards are copyright infringements. The debate over the right of Napster.com to facilitate file sharing of music is covered by this issue, as is the matter of downloading movies from renegade websites somewhere in cyberspace. However, during the DMCA debate, there was sufficient uncertainty in the interpretation of “public distribution” that copyright owners supported amending the copyright law to make it clear that electronic transmissions are public distributions.
We now take a closer look at these crucial copyright rights (Figure 3-1).
Reproduction Right
The reproduction or copying right is what most people think about when copyright comes to mind. The ability to control copying is the signature of the act. Copying can be done in different formats, and copyright law has something to say about each type. Traditionally, copying meant grabbing a pencil and paper and writing down what someone else wrote. As technology has advanced, it has come to mean the ability to record by film, tape, and photocopy machine. In today's digital environment, the copying issue has become rarefied. It is easy to understand that duplicating a floppy disk is copying, so too is storing a work on a hard drive. However, when a computer is turned on and a working copy is entered into a computer's random access memory (RAM), that, too, is a reproduction (albeit a temporary one that disappears when the computer is turned off). Indeed, the copyright law was modified in 1980 to ensure that a licensee or owner of a software program has the right to put that computer program into his or her working files without violating copyright law. It is a simple concept, and one that is essential to the smooth operation of technology, but it still required an act of Congress to accomplish the result.
Figure 3-1 Copyright Rights
In broadcasting, the analogous issue is called the ephemeral copy. When radio stations play music, it is often necessary to make a copy of the tape or disk to permit smooth access for on-air play. Stations that promise “10 hits in a row, with no commercial interruption” prepare the tapes in advance so they can mix and match songs and themes. These stations, which are licensed to perform works by performing rights societies—the largest of which are American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music Inc. (BMI), and the Society of European Songwriters, Authors and Composers (SESAC)—are not separately licensed by those societies to reproduce them. However, the Copyright Act offers an option. It allows broadcast stations licensed to perform music to make ephemeral, or short-term use, copies to facilitate their transmitting activities. We have more to say about music rights issues in broadcast and cable in a later chapter. For now, it is sufficient to understand that the copyright law allows responsible but limited use of those copies.
Derivative Works Right
Under copyright law, once you create a work for one medium, your rights extend to all media. Adaptations, translations, updating, and sequels—all are embraced within the derivative copyright. The paradigm example is a successful book that has many incarnations. The author of the book holds rights to all its progeny—a movie, a play, a television series, a video game, a theme park ride, a book on tape, a sequel, posters, note cards. Often, the book itself is derived from a shorter piece, such as an article, treatment, or poem. Like a precious jewel, a successfully copyrighted work has many cultural surfaces. Copyright law allows the author to claim all facets of creativity.
But, even as the derivative right offers the copyright owner multifaceted entitlements, residing in the jewel is a copyright flaw: the idea/expression dichotomy. While the preparation of a derivative work belongs exclusively to the owner, copyright law does not find fault with a third party who only takes the mere idea and then creates a distinct work. In the media, this translates into the honored art of catching up with the leader. When CBS had the hit series Survivor capturing viewers every week, Fox came along with Temptation Island. When ABC drew huge audiences with Who Wants to Be a Millionaire? NBC responded with a quiz series of its own, The Weakest Link. In the 1980s, prime time soap opera Dallas spawned Dynasty. Different personalities, characters, and plot, but a similar idea—prime time, soaps, game shows, artificial reality shows, with money at the core.
When the movie Twister opened to long lines and public fascination in summer of 1996, local television newscasts began running reports on violent weather, while some movie studios were racing to develop themes about natural catastrophes. To take the Michael Crichton book and replicate it would violate the derivative right; however, taking the theme of scientists chasing weather phenomena and creating stories about hurricane hunters or volcano trackers is borrowing only the idea. If the new work is invested with such novel expression, it is copyrightable.
Public Distribution Right
As we have seen, for most of American copyright history—that is, until 1978— copyright law was a twofold system: common law copyright and federal copyright. The dividing point was publication. If a work was published, it was subject to federal controls and granted a copyright term embracing a limited number of years; if it was unpublished, it could be owned by its author forever. Public distribution was a legal synonym for copyright publication.
The statute defines publication as a distribution of copies to the public or other transfer of ownership by means of sale, lease, loan, or otherwise giving away copies of a work. Offering copies to a group of people for further distribution, public performance, or public display also qualifies. Thus, the ability to provide a single work to a multiplicity of people, even if no money changes hands, constitutes public distribution. Good Samaritans, who believe the world would be better off if people could receive free copies of video, software programs, or CDs of popular music from leading bands, actually violate copyright law, even though they do not profit, because they are wrecking the legitimate, public distribution market of the copyright owner.
This issue reached a boiling point in the world of electronic communications. Copyright owners are so nervous about the capacity of new technology to create perfect digital copies of original works and the mindset of ardent advocates of freeware on the Internet that they convinced Congress to adopt a new set of rules governing communications in the digital, electronic world. The advocates of reform fell short of their goal of enshrining the principle that any transmission or electronic communication is a public distribution, which would have broad implications for all kinds of communications, not just digital ones. Nevertheless, the reforms achieved in the DMCA will play a vital role in the exploitation of all content in the next decade. We discuss these implications throughout the book.
Public Performance Right
There is no copyright right more central to stage and screen, radio and television, even educational lecture halls, than the public performance right. Everything people associate with these institutions involves performing works for the public. In the case of stage and screen, while copies may or may not be made of works (as a practical matter, virtually all content, even news reports on live telecasts, is recorded in some fashion), programs sent out over the airways or by wires to a public audience, as well as live performances to adoring audiences, constitute public performances.
For the television, film, and theatrical industries in particular, copyright clearances are the protein of its life system. Knowing that the broadcasting station has the right to transmit programs to the public is essential to operation. Acquiring interests that fall short of public performance means that the ability to telecast is in question. Due to the breadth of material used on the air, in film, and in theaters and the fact that public performance rights to the various elements of a program may be held by many parties, it is necessary to ensure that all pertinent copyrights have been cleared. This may be a tedious task but one vital to the smooth operation of all media.
The public performance of a work occurs in most face-to-face performing environments, such as in a nightclub, concert hall, convention hall, or at a street fair. The copyright law fully embraces the delivery of works by individual speakers, as well as musicians and performers, in all public settings. In fact, any rendition before an audience in a public place or beyond a normal circle of family and friends is covered.
Describing the public performance right is useful in mentioning three related concepts. First, copyright law makes it clear that performance is not distribution. The cases that developed this maxim predated video recording devices; nevertheless, the concept is sound. Merely performing a work for the public in no way means that the public is entitled to retain a copy of the work. Conversely, being allowed to perform a work publicly does not mean that one holds the right to give copies of that work to others. As a result, the ubiquitous warnings that accompany many telecasts, such as “No reproduction, distribution, or use of the telecast may be made without the express written consent of Major League Baseball” or the warnings in theaters or other venues against using tape recording devices or even taking still photographs mean that the publicly performing entities may not hold the additional rights to distribute copies or to prepare derivative works. In simple terms, the right to perform does not ensure the right to distribute copies. Anyone publicly performing a work must approach a request from the public to make copies of the performance with great care.
Second, we must distinguish “performers' rights” from “public performance right.” Under copyright law, the people who deliver the work to the public in a performance—in particular, the actors and actresses or the musicians and the singers—hold no copyright to their performance. This means that, even though the people who wrote the words and the music for all compositions aired on the radio are entitled to copyright royalties whenever their songs are performed (see Chapter 21 for a discussion of the funds collected by the music performing rights societies), there is no comparable statutory right for the singers and musicians. While their contracts may allow them a spot of revenue whenever their rendition of the work is performed on the air, they are not copyright owners of their own performances.
Periodically, there is talk in Congress about amending the copyright law to extend rights to performers. Throughout the 1990s this movement received renewed attention because some other countries have granted more expansive rights in this area. As a result, internationalists pressed for increased protection in the United States for the actual performances of actors and actresses. Among the first concessions were provisions in special compulsory licenses adopted for use of digital sound recordings. A fraction of funds go to performers, lead and backup (see Chapter 4). At some point in time, the performer's right and the rights of all who participate in making films and videos may be even better defined under copyright law.
Nevertheless, protection purists have a different body of law that offers collateral rights for individuals. We discuss these rights in more detail in Chapter 16, dealing with the rights of publicity and privacy. For now, it should be noted that rules covering publicity, a body of law designed to permit celebrities to control their names, images, and voices, give protection where copyright law does not.
Right to Publicly Display
Placing works in public places for people to view is a time-honored raison d'être of museums. For many in the traditional media, the display right was ignored. The computer revolution changed all that: Public display takes on new meaning in the digital world. When electronic transmissions are received on many computer screens, the operative principle is that they are displayed. We already mentioned the flexibility of copyright law to adjust to new technology and define certain uses and practices as coming within the scope of recognized rights. However, the question posed by digital transmission, which are directed to individuals on their private computers, is whether the transmission, once received, constitutes a public display. Certainly, it is a far cry from an Andy Warhol painting hanging in the local museum.
Rights in Sound Recordings
Finally, there is the notion of a performance right in sound recordings. We have more to say about this issue in the discussion of musical content in broadcasting and webcasting, but, briefly, record label companies have long claimed they deserve royalties when their recordings are played publicly. Copyright protection for these companies is only relatively recent. Copyright law first recognized certain rights of sound recording companies in 1972, when an amendment was passed in response to a wave of piracy of audio cassettes. To stem the tide of bootlegged tapes, Congress granted makers of sound recordings (in those days, LPs, 45s, and cassettes, later CDs and digital audiotape [DAT] machines) the right to control copying, public distribution, and preparation of derivative works. Importantly, no public performance right was granted by the 1972 amendment. In other words, when radio stations played tapes, they still did not have to clear the performance with the sound recording company like they had to with ASCAP, BMI, and SESAC.
Despite the new rights, the sound recording companies did not rest. They sparked a debate that raged for almost two decades. When digital came of age, the battle was won. Arguing that digital technology permits the making of perfect copies that duplicate the best sound quality, RIAA persuaded Congress to act. In 1995, Congress established a public performance right in digital audio transmissions. This amendment, coming just as the Internet and e-commerce were coming into public consciousness, gives the big record companies a crucial basis for exercising more control over digital exploitation of their works. Coupled with changes enacted in the DMCA, including the prohibition on circumvention of technological measures designed to limit access to content and a new compulsory license covering the use of sound recordings in webcasting, the RIAA membership gained gigantic legal clout, which it has used against many digital foes like Napster. We have much more to say about these changes in the chapters dealing with music and performing rights.
In sum, these are the copyright rights. They are statutorily defined grants, which means that they are creatures of our legal system. In a world where the intellectual property of the United States is one of the hottest commodities of commerce, these rights are the building blocks for exploitation. Other nations define them differently, but thanks to international treaties, most of the elements of U.S. law are replicated all over.
The copyright rights, however, come with strings attached. Attached to each right, and therefore attached to each work, are a series of exceptions or limitations. These qualifications are the way the law reconciles copyright principles of exclusivity and economic exploitation with competing public interests such as free speech, library and educational entitlements, and the complex needs of cable television and broadcasting. We turn our attention to these limitations.