Copyright Law Regulation Debate

Topic: Intellectual Property Words: 3879 Pages: 14

Table of Contents

Introduction
Definition of Copyright
How to get copyrights
Lack of homogeneity in copyright law
Effect of technological advancements on copyright law
An argument against copyright law
Fair use doctrine
Conclusion
Bibliography
Footnotes

Introduction

Copyright is one form of intellectual property that is naturally used for making an economic analysis of law. Intellectual property is very vital especially when you consider its aspect of a public good. The cost of coming up with an idea and its subsequent production for use is usually very high, however, reproducing it by the owner or by others is relatively low. This means that an individual can sacrifice his resources to come up with something of an economic value only for others to seize it and reproduce it cheaply. That is why copyright protection becomes important to discourage this practice. In this essay, we will examine the extent to which copyright law can be used to promote efficient resource allocation and protect copyrights.

Definition of Copyright

To clearly understand what copyright law is, we will have to understand what is meant by copyright. Copyright is defined simply as a legal mechanism used to protect individuals credited with creating works by giving them exclusive rights to control how their work is to be used. Mostly, this right is enshrined in constitutions of different countries where original works that can be tangibly expressed are protected. Copyright law is, therefore, a set of legislations put in place to protect published and also unpublished work. This can be of a literary, artistic, scientific nature or any other form in which a piece of work is expressed so long as the particular work has a material or tangible form. This means that if a material can be seen, heard, or touched, then it qualifies for protection. In essence, copyright law is specifically concerned with the legal interests of the creators, performers, and producers of different works. It also covers those who market or sell products and services that are produced. Furthermore, because the end-users of the works are also affected, copyright law ensures that they are not exploited or harmed by those producing and selling them. National and international laws on copyrights were set up to make sure that there is a fair balance between the different interests. Others define copyright law as a set of legal measures established to provide the creator of a piece of work the right to determine and control how it is to be used. This is done with the sole intent of giving creators of innovations, incentives to come up with new works thereby advancing the development of knowledge.¹

Initially, copyright law was established solely to protect the creators and publishers of pieces of work so that their work was not copied without their consent. This purpose slowly changed with time and the scope of the law also increased. For instance, in the 19^th century, work was seen to be immaterial and therefore any means of reproducing the work in any other form was taken to illegal. Therefore, anyone found copying someone’s work or producing its form without permission was regarded as an infringer liable for legal measures. To effectively enforce copyright law, the people have to clearly understand and know what is and what is not to be copyrighted. As already shown in the definition of copyright, work can be copyrighted if it is tangible and has an original expression. A verbal piece of work with no record does not qualify for copyrights because it is not tangible.²

The above explanation means that for something to be copyrighted, it has to meet some basic requirements. The first requirement is that it must have at least some fixed value. A piece of work can be fixed on paper or with the development of technology; it can be on a computer disk or any other storage form. The second requirement is that the work must not have existed or been in existence, it should be original. However, this does not rule out works that are adapted, transformed or combined to come up with a new piece of work. Such works also qualify to be copyrighted. The third and last requirement is that for a work to be copyrighted, it has to be slightly above the original. This means that original work can be used to come up with new ideas or concepts that are also subject to copyrights. Works that can freely be found in the public realm do not qualify for copyright protection.³

Many people tend to group all forms of intellectual thus assuming that they all have the same legal aspects. It should, however, be understood that copyrights are different from the other forms of intellectual property. One difference is that copyrights do not give anyone a legal monopoly over something as it only protects the form in which an idea is expressed, but not the idea. This means that if someone else comes up with a different creation of the same idea, then he will not be in any breach of the law. The other difference is that, unlike the other forms of intellectual property, copyrights do not need any registration because protection usually occurs automatically so long all the other requirements of copyrights are met. People have often equated copyrights to other violations such as plagiarism, this is not the case. Copyrights govern different areas of intellectual rights; neither does it overlap with trademark legislations. It should also be understood that infringements on copyrights are not the same as stealing as many people especially those in the legal sphere have always referred to it.⁴

Another important issue that should be understood in copyright law is that a piece of work does not need to be published to qualify to be copyrighted. Once an individual has been granted the right to copyright, then he or she will be free to reproduce the work in form, come up with other works using the copyrighted work, and will also be allowed to trade in his work by distributing, selling or even transfer his ownership to another party. A copyright owner is also free to carry out any activity that involves his work like displaying, reading or performing the whole of it or in portions depending on his interests without fear of legal consequences. This means that a copyright owner can do just about anything with his work, however, this won’t be possible if ownership has been transferred to someone else. The giving of the owner of copyright material exclusive rights over it has been termed by many as creating a distribution monopoly.⁵

How to get copyrights

How then does one get copyright? From the discussions above, an individual will get copyright once he or she expresses his or her ideas in a form that conforms to one of the stipulated forms of expression under copyright law. Once this is done, then the individual will automatically be under the protection of the copyright law. What this means then is that copyrights do not require any procedure to be given to works. International copyright legislations call upon countries to provide copyright protection to their people freely without procedural formalities as it is done when providing other forms of IP rights. However, there are countries where private companies provide copyright protection for some charge such as Australia. In such a situation, owners of copyright material are supposed to evaluate the benefits they will get from a company that offers to protect their copyrights.⁶

This is critical because, as it has already, been shown if a piece of work qualifies for protection by copyrights, then this protection will be provided automatically. Therefore, paying for copyrights will not do an individual any good if the work does not qualify for copyright protection in the first place. Registration or no registration does not alter a material’s copyright status. However, registration can provide evidence in case of a legal dispute that a particular work existed from the date of registration. However, some certain works cannot get automatic copyrights. Works that are exclusively made for hire do not get copyrights. These include work done by an individual while in the course of his or her employment, also work done as a contribution to teamwork such as in a movie, provided it was laid down that it is for hire.⁷

Lack of homogeneity in copyright law

The world has a range of legal apparatus that is specifically designed to achieve a fair balance between varied interests. This depends on the regions of the world where, for instance, in the European Commission, different directives have been put in place to govern the production, sale and use of audiovisual works in each of the EC member countries. This lack of uniformity in legislation concerning copyrights in the EC serves to show that copyright legislation in the world is not anywhere near becoming homogeneous. Most of the legislation we have today were just put in place to address specific situations and regions. This raises questions, how did such a scenario come about and how it is affecting copyright enforcement in the world today? What measures should be taken to develop better copyright enforcement and many other questions?⁸

The lack of homogeneity in copyright law in the world stems from the fact many of the economic legislations are the obligation of each country as dictated by their individual needs and interests. For example, when the EC was founded, it was clearly stipulated that the laws under the EU should never at any one point prejudice the legislations that enforce ownership of property in member states, copyright law is part of the referred to legislations. It should also be understood that intellectual property has a cultural inclination, which is unique to each society. The many legal provisions for copyright protection reflect the developments being seen in technology especially in media. Technology has paved way for new forms of copyright materials; it has created new uses for the works already in existence, and it has also brought about new ways in which protection is enforced. Technological advancements have also made it more difficult to enforce copyright law. For instance, the internet has allowed people in countries with low copyright restrictions to dodge the authorities.⁹

Effect of technological advancements on copyright law

At the start of the implementation of copyright laws, there were no computers or any technology close to it. It was therefore hard then, to make copies of any piece of work. The advent of computers has made it easy and within reach of people to copy materials that are again readily available. It has become a common practice that even some people find themselves unconsciously doing someone else’s work. This copying is regulated by copyright laws, meaning that the legislation has received more applications today than before. However, regulating information used or stored in computers is not easy. First, information on a computer is not exclusive as it can be accessed by any number of persons who can again use it simultaneously. It is also not possible to determine whether one individual has more information than another. From the very nature of computers, copying is part of their operational functioning. Once commanded to copy, then copies will be made. This copying mostly happens without the user’s permission or control.¹⁰

Copyright law is therefore very hard to be enforced in this era of technological advancement. If at all it is enforced, then it has many implications. Although copyright law was established to protect the public interest, its enforcement is seen by many as impacting negatively to the very public it is supposed to protect. As such, many consequences can accrue from copyright law enforcement. However, for any law to have any power, it must be carried out. That is what copyright law does, legislating against any system that shows the possibility of copying work that is copyrighted. We have just seen that computers are mainly involved in the copying of information which is then distributed by the internet. This means that under copyright law, all network communications should be monitored. This means that transmissions contents through the internet should be inspected to determine if it’s copied or not. Doing this will be invading the privacy of computer users. This is similar to going through someone’s mail at the postal office, which is a federal offence in the US. Inspecting internet and computer content will also eliminate this privacy and is therefore also an offence.¹¹

As was shown, many people use computers and in the process commit violations without knowing. This is infringement, which is prosecutable under copyright law. This means that everyone that uses a computer is guilty and liable for prosecution. The very nature of computers is to copy material and content. Using computers will therefore expose people to copyright infringements, which is prosecuted will affect almost the entire world population. This does not make sense as it will limit people use and therefore, the creation of more technology instead of enhancing as it was first intended when putting in place copyright law. These are among the many reasons why people feel that copyright law does more harm than good to the people. This has created moral confusion with some people trying hard to justify the existence of copyright law and others criticizing it.¹²

As much as copyright law was enacted to provide creators of works, incentives to come up with creative expressions, its scope should be limited just to this goal. There have been many cases in which courts have assumed that because copyright is a property right then it gives the owner the right to claim all the benefits accruing from his work even if he was not responsible for the benefits apart from creating the work. This creates conflicts especially in a situation where there is new technology as we have seen in the case of computers. Many copyright cases today involve the use of new technology. Does this raise the question is to whether copyrights should extend to the material used in new technologies such as the content on the internet? Courts have more often allowed owners of copyright material to have exclusive control including directing their use and how it is sold. They do this basing on the classical argument that the rights to a property only belong to the person who created the property in question. Enforcing this means limiting other people from creating new works that may borrow ideas from existing works. It also limits people from exercising their free use of material for purposes that their real owners didn’t anticipate when creating the work.¹³

An argument against copyright law

It is such complications in copyright law enforcement that make some people argue that copyright protection should be abolished altogether. First of all, it is too expensive to carry out copyright enforcement especially when one considers the fact that rights mostly deal with intangibles. Copyright law started back in the early 16^th century in England and it provided little protection as compared to the one used today. However, the creation of new works flourished without much hindrance. Although, it can be argued that during those days, making copies was too expensive and difficult when compared to the present day that is filled with technology that has made it easy and less costly to make copies. Arguing that copyright law is ineffective may have some justification, but consider a situation whereby there is no protection for works. There will be no incentive for those who create, sale and use these works to continue creating, selling or using them. Lack of copyright protection will also destabilize markets. Creators of new works will avoid making earlier advertisements for their work. Those who usually engage in copying will be encouraged to make many copies to capitalize on the cheap costs involved. To avoid copying creators and producers of new works will opt to make works that are not easily copied, or they will decide to sell and distribute their creations privately to avoid the possibility of copying. The costs involved in these efforts exceed those used when there is copyright law.¹⁴

Copyright protection is not at all unnecessary, but if it is used beyond some boundaries, it will become counterproductive by raising the costs used in expressing ideas and innovations. Coming up with new ideas more often than not depends on the existing ideas. If copyright law is made less extensive, creators of new ideas will have more liberty to borrow or use existing ideas to come up with new inventions without worrying about legal actions for infringing someone else’s copyrights. This also reduces the costs involved in coming up with new productions. However, it can still be argued that no protection, no matter how effective it is, will prevent copying from taking place. We have just seen that some technologies such as the computer involve copying in their routine functioning, but the existence of copyright protection will mean that people will not explicitly make copies. They will do a bit knowing that there are legal consequences involved if caught. They will carry out costly research to establish those works that are not copyrighted to copy them, or they will hide or disguise copied material, or worse still, they will be forced to part with some amount to get authorization to come someone’s work. This, in essence, will make copying very expensive. On the face of it, it will help owners of copyrighted material, however, such measures discourage the creation of new works, discourage people from coming up with new expressions, therefore, they reduce the number of new inventions. It, therefore, does not serve its original purpose of working as an incentive to creators of new works.¹⁵

Copyright law has faced stiff criticism when it comes to what is referred to as accidental duplication. This happens in two instances, the first one when an individual makes an independent creation that coincidental is identical or close in resemblance to an earlier creation. The second instance is what is called unconscious borrowing. It is usually very had for copyright material to be inspected in totality to ascertain whether it is copied or not, this is the reason why legal formalities are avoided in granting copyrights. If the copyright enforcers find it hard to ascertain if a work is original or copied, how will a creator of a new work know? The cost that will go into measures aimed at avoiding accidental copying or duplication will be so high and therefore discourage creators of new works from coming up with new materials. It was also shown that one of the reasons copyright law was set up, was to discourage free-riding on other people’s efforts. However, there is no free-riding ion accidental copying because the work will have been created independently without knowledge of similar work in existence. This is why copyright law was established to protect the expression of ideas, but not the ideas themselves.¹⁶

Fair use doctrine

If ideas were to be protected, then we will have a situation where people will rush to create ideas and get their copyrights so that they can use the ideas to get financial gains. For instance, there will be increased cases of renting of ideas or even selling of ideas. However, it is known that coming with ideas is usually hard, but using an existing idea to come up with new ones is easy. If ideas were to be protected, then creators of new works will be discouraged to do so. To try and avoid prosecuting accidental copying, there is the doctrine of fair use that is enshrined in Copyright law to protect creators of new works from unfair prosecutions. This law lays out the guidelines to be used by creators of new works when using other people’s ideas without necessarily getting their permission or paying any fee. It should, however, be understood that fair use does not give anyone the right to use another person’s work. It is only used as a means of defence in cases where people are accused of infringing on copyrights, which they believe they used fairly. Under this law, it is upon the creators of new ideas to prove that their use of other people’s work meets the requirements of fair use. We saw early on those owners of copyrights are legally allowed to restrict any reproduction of their work. They can also legally ask for payments for using their work. Unauthorized use of copyrighted material has its legal consequences, it is, therefore, important for anyone to know to what extent he or she can use another person’s work to avoid going against the stipulations of copyright law.¹⁷

The only undoing of the fair use rule is that it is usually very hard for law enforcers to clearly and exhaustively determine what is and what is not fair use. In anticipation of this complexity, copyright law set up four factors to be evaluated when determining fair use. First, the character of the use must be determined. Then the nature of the work in which the borrowed idea was used is also established. This then followed by determining how much of the borrowed idea or work was used. And lastly, the effect that the particular use will have on the market of the original work. The first three factors are mostly used in determining fair use. Once they meet the requirement for fair use, then there is no need to determine the economic impacts of the use on the original work. This is because if a use of a certain material is found to be fair, then it can not affect the original work, but if unfair, then it will automatically shift the economic position of the owner of the used work. Fair use doctrine, however only applies to the academic aspects of copyright. It can not, for instance, be used in the business sector, a business can use the fair use rule to use another business’ work to promote its own. For this to happen, permission must be given first, otherwise, the business in question will be infringing copyrights. There is also the use of the rule of thumb under fair use. This rule lays down the type and amount of material that can be copied without seeking permission. Note again that this rule applies to the academic use of copyrighted material.¹⁸

Conclusion

We have seen that copyrights were established with the sole aim of providing incentives to creators of new works to come up with more new material for use by society. However, as years went by, developments and new demands increased the scope of copyright law. Its initial purpose and it become more inclined to the economic side than on the incentive side. This has degenerated discourses in the public sphere with some people supporting the use of copyright law and others advocating for its abolition. All these conflicts have existed because of the complex nature of copyrights. It is, therefore, not easy for an individual, especially creators of new ideas to determine or anticipate every copyright situation that they may face in their effort to come up with new creations. Although we have seen that there are incidences of accidental infringement of copyright law, this should not be used as an excuse for using other people’s work without their permission. Copyright law is just like any other, which is respected and followed, will make everyone lively satisfying lives in the society.

Bibliography

Allen Consulting Group. (2003). Economic perspectives on copyright law. CopyRight. Web.

Balganesh, S. (2008). Foreseeability and Copyright Incentives. Law Chicago. Web.

Copyright & fair use (n.d). Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web. Copy Right. Web.

Fair use. (2005). FAIR USE OF COPYRIGHTED MATERIALS. Web.

Ghidini, G. (2010). Innovation, competition, and consumer welfare in Intellectual Property Law. New York, NY: Edward Elgar Publishing.

Landes & Posner. (n.d). An economic analysis of copyright law. Cyber Law. Web.

Long, R. (1995). The Libertarian Case against Intellectual Property Rights. Free nation. Web.

Mubig & Scheuer. (2003). European Copyright Law and the Audiovisual Media: Are We Moving Towards Cross-Sectoral Regulation? London: Oxford.

Nadel, M. (2004). How Current Copyright Law Discourages Creative Output: The Overlooked Impact Of Marketing. Community Wealth. Web.

UK Copyright services. (2011). Copyright, Designs and Patents Act 1988. Copy right services. Web.

World Intellectual Property Organization. (n.d). Understanding Copyright and Related Rights. Free Publications. Web.

Footnotes

Ghidini, G. (2010). Innovation, competition, and consumer welfare in Intellectual Property Law. New York: Edward Elgar Publishing.
Copyright & fair use. (n.d). Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web. Web.
Long, R. (1995). The Libertarian Case against Intellectual Property Rights. Web.
Copyright. (n.d). How to get copyright. Web.
Mubig & Scheuer (2003). European Copyright Law and the Audiovisual Media: Are We Moving Towards Cross-Sectoral Regulation?
Landes & Posner (n.d). An economic analysis of copyright law. Web.
Nadel, M. (2004). How Current Copyright Law Discourages Creative Output: The Overlooked Impact Of Marketing. Web.
World Intellectual Property Organization. (n.d). Understanding Copyright and Related Rights. Web.
Copyright guidelines (n.d). Copyright fair use guidelines. Web.
Fair use (2005). Fair Use of Copyrighted Materials. Web.