The Fundamentals of Copyright Law

Written By Amelia McCann
Inkredible.

Copyright consists of a bundle of exclusive economic rights, which under the Australian Copyright Act 1968 include the right to ‘copy, publish, communicate (e.g. broadcast, make available online) and publicly perform the copyright material.

Under Part IX of the Copyright Act 1968, creators of copyright works also have three core moral rights: 

  • the ‘right of integrity of authorship’ (per Division 4), 

  • the ‘right of attribution of authorship’ (per Division 2), and 

  • the ‘right not to have authorship of a work falsely attributed’ (per Division 3).

The enforceability of both economic and moral rights is difficult in an age of increasingly accessible digital technologies that can be used to copy, alter or otherwise ‘remix’ copyrighted works.

However, they are still highly significant in the modern public sphere, impacting the ways in which people are able to consume and build on published creative materials. 

Key moments in the historical origins of copyright

  • 1557 – A UK royal charter was granted to the Stationers’ Company, which had monopolised the publishing industry, and which sought government protection of this monopoly. Following the charter, the Stationers’ Company developed registration methods for stationers, leading to the creation of a copyright system in which individual members were granted the exclusive right to publish a specific work in perpetuity, meaning no other members had the right to copy the work. 

  • The Statute of Anne (1710) – Legislation which established the public domain, and established copyright as a form of trade regulation.

  • Donaldson v. Becket (1774) – Key legal case which rejected the perpetual common law property right to copyright ownership of a work. 

While this trajectory indicates copyright’s early steps moving in a somewhat less propertarian direction, it remains the case that copyright was originally established more as a publisher’s right to exclusively copy and profit from existing texts, rather than an author’s exclusive right to profit from their own works. 

Philosophical rationales

2 core philosophies for rationalising copyright are:

The propertarian approach:

An example being the ‘neoclassical economic theory’ basis for intellectual property:

  • Focuses on creative works as private property and economic commodities over which owners have primary dominion. 

  • Copyright = a mechanism for ‘moving existing creative works to their highest socially valued uses.’

  • Copyright = a way to ‘determine what creative works are worth and thus to create a guide for resource allocation.’

The democratic approach:

An example being ‘the democratic paradigm’: 

  • Focuses on creative works as public goods whose development and dissemination should not be limited to state or elite organisations.

  • Copyright fulfils 2 key functions:

    • The production function: encouraging ‘the creation and public communication of original expression.’

    • The structural function: supporting ‘a sector of expressive activity that is independent from state and elite patronage’ and setting ‘limits on private control of creative expression’.

Copyright over-protection is often connected more with the propertarian approach, which favours the property privileges of owners, than the democratic paradigm approach, which is more oriented towards the public interest in creative and democratic expression. 

However, even when oriented towards serving the production and structural functions of the democratic function, copyright is still a legal mechanism aimed at the prevention of copying, and thus concerns persist about its capacity to limit the right to quote or remix creative works.

Copyright overprotection

Examples of ways in which copyright over-protection can occur include: 

  • Over-extending copyright duration 

    • Extending copyright far beyond the realm of supporting or incentivising creative individuals. 

    • Example: the United States Copyright Term Extension Act of 1998, which extended copyright to ‘author’s life + 70 years or ‘120 years after creation or 95 years after publication’ for works of corporate authorship’. 

  • Over-extending copyright scope

    • Extending the power of copyright law into different areas of life with potentially harsh consequences that may constitute overreach. 

    • Example: the Digital Rights Management support under the US’ 1998 Digital Millennium Copyright Act, which (with limited exceptions) makes it criminally unlawful to ‘circumvent a technological measure that effectively controls access’ (Title 17 U.S. Code s. 1201) to certain copyrighted digital works, and which has created problems for the sharing of a broad range of works online. 

The key direct dangers of over-protecting copyright recognised by US intellectual property legal scholar and activist Lawrence Lessig include:

  • Constraining creators 🡪 by causing uncertainty in a legal system that is already inaccessible to everyone but the few with the resources needed to take on litigation. 

  • Constraining innovators 🡪 by creating an overly punitive regulatory system. 

  • Corrupting citizens 🡪 by making millions of ordinary people criminals for engaging in common and relatively harmless actions such as downloading music.

Notable issues connected to copyright over-protection include: 

  • Consolidation of power 

    • Specifically, the consolidation of power by a limited number of powerful copyright owners, who are predominantly the media corporations responsible for publishing (or simply purchasing the rights to) creative works, rather than the individuals responsible for actually creating them. 

    • An example of criticism on these grounds: copyright scholar Neil Netanel’s assertion that ‘if copyright extends too broadly, copyright owners will be able to exert censorial control over critical uses of existing works or may extract monopoly rents for access, thereby chilling discourse and cultural development’.

  • Harmful impacts for both culture and community

    • Lessig explains the value of remixing past works for two core reasons: 

      • Community 

        • ‘…people create and show each other what they have made, where ‘that showing is valuable, even when the stuff produced is not’ as ‘participation happens with others. They form the community. That community supports itself’.

      • Education 

        • ‘…remix is…a strategy to excite “interest-based learning”’, meaning ‘the learning driven by found interests,’ whereby ‘doing something with the culture, remixing it, is one way to learn’.

  • Copyright over-protection that limits people’s ability to quote, alter or otherwise remix creative works can therefore undermine the cultural value of creative expression in the areas of community and education. 

  • A realm that seeks to address this danger is the existence of the ‘fair use’ (US) or ‘fair dealing’ (Australia) doctrines, which create exceptions to copyright infringement in an acknowledgement of the value of some of these kinds of remixed or transformed works for the sake of culture and community.

    • However, while the ‘fair dealing’ doctrine under Australia’s Copyright Act 1968 is relatively clear and prescriptive in its consideration of exceptions to copyright infringement – including ‘research or study’ (s 40), ‘criticism or review’ (s 41), ‘parody or satire’ (s 41A), ‘reporting news’ (s 42) and the provision of legal ‘professional advice’ (s 43) – the US ‘fair use’ doctrine is broader and less clearly defined, opening it up to different conceptions of ‘fairness’. 

Given its historical origins as a publishers’ right and the prevalence of neoclassical economic theory as a theoretical framework for justifying it in terms of investment and profit on property, it is in many ways unsurprising that the current copyright regime leans more towards copyright over-protection than under-protection. 

This means that the dangers of copyright over-protection, such as the consolidation of power to large media conglomerates, as well as restrictions to democratic and creative expression that benefits an evolving culture, are important to be aware of when navigating the complicated modern copyright landscape.

References

  • Lessig, L. (2004). Free Culture: How Big Media Uses Technology and The Law to Lock Down Culture and Control Creativity. Penguin Press. Link: Free Culture (ibiblio.org) 

Amelia McCann
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