Further Dissecting Copyright --- And Its Attached Intrigue

Copyright Has a long Tail

I have posted numerous times on the new conundrums RE copyright brought on by all the new tech and resulting media formats and platforms.

But, tonight, let's really examine and define the damn concept as it is applied in the United States.

I think the exercise will make copyright clearer in the minds of many.

The overview I have chosen is concise, yet detailed, with many informative links to the appropriate sections of the constitutional law.

From Cornell University Law School:

copyright: an overview

The U.S. Copyright Act, 17 U.S.C. §§ 101 - 810, is Federal legislation enacted by Congress under its Constitutional grant of authority to protect the writings of authors. See U.S. Constitution, Article I, Section 8. Changing technology has led to an ever expanding understanding of the word "writings." The Copyright Act now reaches architectural design, software, the graphic arts, motion pictures, and sound recordings. See § 106. As of January 1, 1978, all works of authorship fixed in a tangible medium of expression and within the subject matter of copyright were deemed to fall within the exclusive jurisdiction of the Copyright Act regardless of whether the work was created before or after that date and whether published or unpublished. See § 301. See also preemption.

The owner of a copyright has the exclusive right to reproduce, distribute, perform, display, license, and to prepare derivative works based on the copyrighted work. See § 106. The exclusive rights of the copyright owner are subject to limitation by the doctrine of "fair use." See § 107. Fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research is not copyright infringement. To determine whether or not a particular use qualifies as fair use, courts apply a multi-factor balancing test. See § 107.

Copyright protection subsists in original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. See § 102. Copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery. For example, if a book is written describing a new system of bookkeeping, copyright protection only extends to the author's description of the bookkeeping system; it does not protect the system itself. See Baker v. Selden, 101 U.S. 99 (1879).

According to the Copyright Act of 1976, registration of copyright is voluntary and may take place at any time during the term of protection. See § 408. Although registration of a work with the Copyright Office is not a precondition for protection, an action for copyright infringement may not be commenced until the copyright has been formally registered with the Copyright Office. See § 411.

Deposit of copies with the Copyright Office for use by the Library of Congress is a separate requirement from registration. Failure to comply with the deposit requirement within three months of publication of the protected work may result in a civil fine. See § 407. The Register of Copyrights may exempt certain categories of material from the deposit requirement.

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How long does copyright protection last?

Copyright Reinstatement Deemed Legal for Certain Works --- What Happens to Public Domain?

Supreme Court -
 "Right or Wrong, That's
My Ruling!"  

First, the definition of public domain RE literary or artistic works:

Public domain is the status of a literary work or an invention whose copyright or patent has expired or that never had such protection --- In other words, all initially accrued rights to the creator have expired. (I often wondered why they should ever expire ... but, I can see the other side to this, mainly for educational purposes).  


Many professions, researchers and teaching professionals (think libraries) rely on free access to works in the public domain to carry out their missions. So, what happens if a great old masterpiece has its copyright reinstated ? What is the fallout ?
 
You know what I think the supreme court did here ? The thing they always do the best --- create a clusterfuck !
 
Meaghan Hemmings Kent, writing on Lexology.com for Venable LLP has this insight:  
 
On January 18, 2012, the Supreme Court confirmed 6-2 that certain works that had entered the public domain could have their copyright restored. Golan v. Holder, Case No. 10-545. The works affected are estimated to number in the millions and could include films by Alfred Hitchcock, such as The Birds; books by Virginia Woolf, such as Mrs. Dalloway; symphonies by Prokofiev, such as Peter and the Wolf; and paintings by Picasso, such as Guernica.

The decision will not only affect the copyright owners, but also anyone who relies on public domain works, particularly those creating derivative works, reprint publishers, musicians, orchestra conductors, teachers and film archivists.

The case considered the constitutionality of a portion of the Copyright Act, 17 U.S.C. § 104A, that was enacted in 1994 by Congress in order to comply with the international accord, the Berne Convention. Section 104A allows for certain works that had previously entered the public domain to have their copyright reinstated. The types of works are non-U.S. works that were protected in their country of origin, but were not protected in the U.S. for the following three reasons:

1.They were exempt from copyright protection at the time of publication (i.e., Soviet-created works).

2.They were sound recordings fixed before 1972 (the U.S. did not protect sound recordings prior to 1972).

3.The author did not comply with U.S. statutory formalities of copyright under the old 1909 Copyright Act (such as the old requirement of copyright notice).

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Intellectual Property: Removal of Masterpieces from the Public Domain - Good or Bad Idea?

As intellectuals (or wise old farts) realize, the U.S. Supreme Court is correct in its rulings maybe half the time :)

Well they just upheld a sweeping congressional amendment to the U.S. Copyright Act that "restored" copyright in works including some of the world’s most beloved masterpieces.

This post has some interesting history on the beginnings of copyright law.

These details from the global law practice of Hogan Lovells through http://www.lexology.com/:

The fight for Peter and the Wolf: U.S. Supreme Court upholds the removal of masterpieces from the public domain

USA

January 27 2012

United States Supreme Court, Decision of 18 January 2012, No. 10-545, Golan v. Holder

In a 6-2 vote, the United States Supreme Court upheld a sweeping congressional amendment to the U.S. Copyright Act that "restored" copyright in works including some of the world’s most beloved masterpieces.

Countless works, including Pablo Picasso’s La Guernica, Sergei Prokofiev’s Peter and the Wolf and C.S. Lewis’s The Chronicles of Narnia, were once in the public domain in the United States but have since had their copyright restored by a congressional amendment to the U.S. Copyright Act. This amendment and its far-reaching impact on those whose work depends on the free, unrestricted use of materials in the public domain were at the heart of a decade-long dispute in Golan v. Holder. The case reached its final conclusion on January 18, 2012 by a 6-2 vote of the U.S. Supreme Court.

The genesis of the case reaches back to 1886, when the Berne Convention for the Protection of Literary and Artistic Works was signed into force. The Convention, which now includes 165 contracting parties, established an international copyright system based on mutual recognition of copyright between member states. The United States did not accede to the Convention until 1988 when Congress enacted the Berne Convention Implementation Act, which went into effect on March 1, 1989. At that time, Congress expressly declined to implement Article 18 of the Convention, which effectively required copyright restoration for works of foreign authorship still under copyright in their source country but never copyrighted in the United States.

A few years later, Congress reversed its position. As part of multilateral trade negotiations in connection with the General Agreement on Tariffs and Trade (GATT), the United States agreed to implement Article 18, incorporating it as §514 of the Uruguay Round Agreements Act (URAA). Section 514 amended the U.S. Copyright Act to extend copyrights to foreign works (first published between 1923 and March 1, 1989) for the term of protection those works would have been granted had they been copyrighted in the United States in the first place.

Effective January 1, 1996, a large number of foreign works, including works such as Prokofiev’s Peter and the Wolf once freely performed by school orchestras like the one led by Lawrence Golan, the named petitioner in Golan v. Holder, had their copyright restored in the United States. High and, in certain cases, prohibitive permission fees imposed for the use of such newly copyrighted works soon followed – a circumstance denounced by the Golan dissent, "If a school orchestra or other nonprofit organization cannot afford the new charges…They will have to do without – aggravating the already serious problem of cultural education in the United States."

The Golan petitioners challenged the constitutionality of §514 of the URAA. They argued that: (1) §514 exceeded the authority granted by the Copyright Clause of the Constitution, which empowers Congress: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors…the exclusive Right to their…Writings." Congress, they contended, had set the “limited time” of copyright for pre-March 1, 1989 foreign works at zero years when it previously denied those works copyright protection, and nothing in the Copyright Clause authorizes Congress to restore that limited term once the works were allowed to fall into the public domain; (2) the removal of public domain works abridged their pre-existing First Amendment right to use those works freely for their expression; and (3) copyrighting works created decades before does not promote the creation of new works.

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Prominent French Publisher, La Martiniere, Reaches E-Book Detente with Google

La Martiniere, the third largest publisher in France (behind Hachette and Editis), fought a five year battle to stop Google from scanning and selling (mostly out-of-print) copyrighted works willy-nilly ... and they have successfully reached a detente.

I wouldn't have thought it would be so hard, even for out-of-print works, given that they are supposedly copyrighted for life ... unless the copyright ownership was in question.

Anyway, publishing intrigue is alive and well and shouting all over the place and across formats and platforms.

This from Barbara Casassus as reported in TheBookSeller.com:

La Martinière and Google sign agreement

French publisher La Martinière has dropped its legal action against Google and signed an agreement with it to scan specified out-of-print French language titles.

The publisher was locked in a five-year long legal battle against Google for having digitised copyrighted books without permission. The pact is similar to the one finalised last month with Hachette Livre, which was aimed to serve as a model for other French houses.

The difference is that La Martinière and Google will draw up a catalogue including both the titles already scanned in partnership with American libraries and those to be covered by the latest deal, a Google France spokesperson said. The publisher will decide which titles will be withdrawn and which will be scanned.

Several thousand titles could be involved, La Martinière c.e.o. Hervé de La Martinière said. The group will be able to sell the scanned books through the Google e-books platform on a revenue-sharing basis, with the publisher earning the undisclosed majority share, the Google spokesperson added.

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Publishing Piracy Intrigue: China Stepping on Japan Copyrights...Oh, and Apple is Bad Boy Too!

Not only is China violating some of Japan's copyrights through it's huge internet search beast Baidu (on it's Baidu library)...but, Apple iPad is also stomping all over portions of Japanese copyrighted material.

And guess what? The Chinese Baidu search beast has made a successful effort at policing it's copyright infringements whereas Apple has NOT! Interesting, no?

This intriguing story unfolds on the Japan & China 'Realtime' Report blogs of the Wall Street Journal:

The publishing business may be in the throes of the unknown, but one thing is for sure: Japanese publishing giants aren’t afraid to pick up the sword – or pen — in the name of copyright protection.

The consortium of four Japanese publishing associations that joined forces to take on Apple Inc. has expanded the reach of their sword to China. The associations requested Baidu, the beast of Internet search in China, to take steps to prevent illegal uploads of copyrighted material on “Baidu Library.” In the absence of effective policing and preventive tactics pirated versions of Japanese manga, anime and novels have run rampant on the free document-sharing service where users can upload and surf files for free, according to a joint press release on Monday. It was signed by the Japan Book Publishers Association, the Japan Magazine Publishers Association, the Electronic Book Publishers Association of Japan and the Digital Comic Association.

“Authors and publishers have made removal requests to Baidu each time the existence of these ‘digital bootlegs’ is discovered, but there is no end to the illegal uploading of data and the cat-and-mouse-game continues,” said the statement, adding that “Baidu bears grave responsibility for this problem.”

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