Definition: Copyright; Copyrights; Copyrighting;

Definition: Copyright; Copyrights; Copyrighting;  | Glossary entry

Copyright; Copyrights; Copyrighting;

The general meaning of copyright
International agreements and the rights embodied in law
Duration
Ownership
Fair use provisions
The problems with copyright
Copyright marking and notices
Enforcement
Disclaimer
Links

The general meaning of copyright

The concept of Copyright theoretically provides the creator of an original work the exclusive rights over how it is used. Copyright statutes have been included in law worldwide and as part of international agreements.

Copyright is a type of intellectual property (like patents, trademarks, and registered items). It may apply to a wide variety of forms or media. Publications, images, sounds, public performances, or unique information that is substantive and which are original works can all be given copyright.

A copyrighted work is normally created as the result of being an original creation made involving labour, skill, judgement or talent. Copyright applies to the outcome of the act of creation. It does not cover the idea behind the creation.

The aim of copyright is help the creation of new works by giving the creator control of the copyrighted work. This normally applies to the country in which the creator of the work resides. However, the existence of international agreements (two in particular) has extended the protection of individuals holding copyright beyond their home territory.

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International agreements and the rights embodied in law

The “Berne Convention for the protection of literary and artistic works” is the most widely accepted international agreement. The Berne Convention lays down a common framework and agreement between countries/nations on intellectual property rights, most notably copyright. One hundred and sixty four countries are currently signed up to the convention. The Convention protects nationals or residents of countries in which the copyrighted work is published.

In general, copyright under the Berne Convention gives the copyright holder certain rights including:

  • The “right to copy” or reproduce the work.
  • The right to be credited for their work.
  • The right to object to any treatment of the work that is ‘prejudicial to his honour or reputation’ (eg. Right to object to derogatory treatment).
  • The right to control who may use their work.
  • The right to authorise public performances and/or broadcasts.
  • The right to determine who may perform or direct a work.
  • The right to determine who, if anyone, may adapt the work.
  • The right to authorise translation of the work.
  • Other related rights.

The inclusion of these rights in the law of any one country is determined by the country being signatory to the Berne Convention although other international copyright agreements may also apply. None of the actions covered by these rights may be carried out without permission given by the copyright holder, their appointed agents or their exclusive licensee.

The Universal Copyright Convention (UCC) was originally created as an alternative to the Berne Convention. This was because a number of countries disagreed with the latter, most notably the USA. In that country copyrighted works required registration with the Library of Congress and had to be marked by the international copyright symbol “©”. After changing a number of its laws the USA signed up to the Berne Convention in 1989. Although, copyright registration is still a requirement for USA citizens, authors from other countries are copyright protected under the Berne Convention in US law.

Countries that are signatories to the UCC have agreed to provide the same cover to foreign published works as they do to their own authors works. They also have agreed to treat foreign copyrighted works as if they had been registered in that country provided they carry the © symbol. The UCC also sets a minimum copyright duration of 25 years from publication and not less than 25 years from the death of the copyright owner. However, photographic works are one of the exceptions under the UCC – minimum copyright protection in the case of photographs lasts for only ten years.

The existence of international copyright agreements has tended over recent history to mean that the idea of copyright in most modern economies embodies many of the standard ideas in copyright protection. In practice the Berne Convention, or the UCC, act as minimum standards for the application of copyright law. Local variations can create significant differences to these protections. The most significant difference is duration of the copyright that applies to specific types of copyrighted material. Seek local advice to be completely clear on detailed variations.

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Duration

Copyright is given to the creators of original works for a specific time. The actual period of time that copyright applies is normally the life of the creator and a further twenty five to a hundred years from the creator’s death. This enables benefits to be passed on through the estate of the deceased. UK law provides for a general 70 year copyright duration after the creator of the work dies. The copyright duration can significantly vary between jurisdictions.

Photographic works may differ in the copyright protection they enjoy, particularly with respect to duration. In the UK the protection of copyright generally lasts for 70 years from the end of the year in which the copyright owner dies. If the work is first publicly released after the death of the creator the copyright will last for 70 years from the end of the year in which the work was first released.

Copyright duration may also vary according to the type of the copyright. For example, in the UK, the copyright duration covering photographs is for 70 years after the creator of the work dies. However, Crown Copyright publications (eg. Acts of Parliament, Government reports etc) have a copyright duration of 125 years.

The way that copyrights apply may differ between individuals and corporations. The duration of a corporate copyright is often for defined periods from the point of creation or a defined date because the lifetime of the author is not applicable. Local laws vary and may modify international agreements (particularly with respect to duration).

Most countries recognise copyright from a specific date. That date is usually defined by the date of creation, registration or publication of the work. In the UK the the existence of a completed but unpublished work or other proof of creation (as established in court) will also normally create a copyright.

Once the copyright has expired on a work it becomes public property and is not protected for the benefit of individuals.

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Ownership

The existence of an original work is not necessarily proof of ownership. Copyright can only be enjoyed where ownership is provably linked to the creator, his exclusive licensee or where the copyright has been sold or inherited.

Ownership is normally assumed to be the individual, group or organisation who exclusively owns the work itself. For individuals in employment or under contract to produce certain works the copyright is assumed to be in the ownership of the employer or issuer of the contract. Freelancers would normally retain copyright (unless an agreement or contract is in place to the contrary). However, copyright can be transferred by inheritance, sale or license.

Ownership is normally the factor that determines who enjoys the rights of copyright. However, contracts, agreements and licences can all provide rights for the protection of certain types of use and control of the copyright. The complexity of the agreements and contracts that affect copyright is beyond the scope of this article and it is advised that specific legal support is sought for such agreements before any negotiations or licensing is undertaken.

Some jurisdictions require registration of a work to establish copyright – particularly countries which are signatories only to the UCC. Critics have suggested that registrations are a cumbersome and bureaucratic instrument. However, it does provide copyright holders with a provable origination for claiming copyright. Unfortunately the system is also open to fraudulent use and corporate abuse of individual creativity. Registration also costs money and takes time to submit – both of which put additional burdens on small businesses.

It may be important to have proof of ownership in order to claim the rights under copyright protection – particularly for photographers. That proof may vary according to the media involved and the type of copyright related to that media. However, it is in the authors interest to retain documentation and information or physical evidence that may help establish that they are the creator and holder of the copyright. To that effect copyright notices on the work itself may be helpful. However, original notes about the creation, digital negatives and other evidence my help to establish ownership in court should a dispute arise. All contract information relation to a work and the employment of the creator may also have relevance in establishing ownership.

In the case of photography the creation of a RAW file or digital negative is a recognisable creation proof. It is inadvisable for photographers to release the RAW file for an image or to publish it. The file can then act as proof that the holder is the original creator. For older images a film negative will often act as the proof of copyright ownership. However, independent means of verification and most particularly date specific information is important in establishing ownership of a created work.

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Fair use provisions

Certain provisions for the “fair use” of copyright are found in most jurisdictions and are provided for under the Berne Convention. These are mostly around personal use, research, partial copies (say, just a few percent of the overall work) and restricted use within a contained situation like a family or personal situations. This means limited copies of certain types of documents and original works may be copied outside of the control of the copyright holder but only for the benefit of personal use. Any widespread publication, like on the Internet for example, would contravene the principle of fair use.

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The problems with copyright

Online copying of files and digital works, especially for fair use purposes, has challenged copyright law around the world. It is difficult if not impossible to trace digital copies of certain copyrighted material even if it is quite widely distributed. This makes it easy for unscrupulous users of works to profit from multiple copies and illegal sales of certain original works.

The difficulty of tracing slightly changed copies of files adds to the problem. The sheer volume of online images in particular and the difficulty of tracing unidentified images among billions of others is a fact of the online world. As a result, the Internet is gradually changing attitudes to copyright. It is also impacting on the creators ability to control their work either locally or globally.

The issue of “user rights” under the fair use provision of copyright conventions may significantly increase in power in the future. They are likely to be affected by copyright legislation changes under pressure from international electronic publishing and transmission of digital assets, particularly via the Internet. For example, it is not clear to what extent personal-use reprints of an image may be reproduced when only one image has been purchased from a website or photographer. Similarly, but more commonly, it may be asked how many copies of a digital sound file may be held by, say, family members for personal use in the same residence.

Some critics of copyright philosophy have argued that big business is protected by copyright law, while small businesses have too few resources to pursue copyright claims and resolve disputes. In a digital world where “fair use” is a growing component of copyright law this is probably a reasonable fear. However, fair use and copyright law is evolving fast and these criticisms may be answered in time. Recent UK law suggests that it may get easier for the small business to resolve copyright disputes in the future. (See: Copyright infringement situation improved in UK).

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Copyright marking and notices

Copyright marking is not a requirement under the Berne Convention like it is under the UCC. However, copyright marks are often applied to works to ensure they are be obviously covered by a copyright to inform the viewer of the media or work.

The widespread use of the Internet, especially by photographers, makes copyright marking extremely important. It is very easy to lose track of images. So it is advisable that as much contact data and copyright information is provided in every image to ensure the owner is contactable. Without that information it may be assumed that the image is not protected, or that it may be operating under a specific type of licence giving public access. While such assumptions are unfounded in most cases photographers are best protected against this by providing as much information as possible about what is permitted.

In the case of specific copyright types, like for example a variation of a format, copyright marks and accompanying notices often provide specific and detailed contact information or information on how the copyright applies. It is always advisable to provide as much copyright data as possible with your photographs to protect your rights as a copyright owner. That is especially important with respect to images released on the Internet.

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Enforcement

Copyright enforcement is normally embodied in the law as a civil matter. However, specific types of copyright may be treated differently. In some cases criminal law applies to copyright and in some circumstances penal sanctions may apply in specific countries or situations. Caution is advised in dealing with any type of copyright as the force of the law can significantly impact on individuals and companies if copyright is infringed or abused. The most common punishment where copyright infringement is proved in court is a fine. Fines may be substantial, especially where damages and actual loss of income can be proven.

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Disclaimer

Local national copyright law, and the impact of international copyright agreements, is a complex area of the law. You are advised to take advice only from legal professionals who are able to interpret your local laws and the context of your particular legal situation. The above survey of copyright is intended to be only a broad guide to the field of copyright. The author of this article makes no claim to the legal status of any of the points made here or to their actual legal relevance in any jurisdiction.

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By Damon Guy (author and Photokonnexion editor)

Damon Guy - Netkonnexion

Damon Guy (Netkonnexion)

Damon is a writer-photog and editor of this site. He has run some major websites, a computing department and a digital image library. He started out as a trained teacher and now runs training for digital photogs.
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