0.2 The scope of copyright law

The Berne Convention permits individual countries to determine which of these rights may be exercised and in what circumstances. However, it requires that they should not be applied in a way that would negatively affect an author’s moral rights.

Back to the case study

Nadia should first tell Angela that until she records the lectures (or writes them down) she does not have any copyrights in their contents. As soon as she records them, however, she owns the copyright in them, even if she has not applied copyright notices to the tapes. Nadia should next tell Angela that the musical compositions she is considering performing are probably sufficiently old that they are no longer covered by copyright. (Nadia should check her local copyright statute and the dates the compositions were first published to be sure.) However, it is possible that those compositions are subject to special rules governing folklore and traditional knowledge. Nadia might volunteer to research this issue further, advising Angela to wait until she has done so before making the recordings -- and certainly before making them publicly available.

As to whether Angela should charge other music professors and students for access to her recordings, Nadia suggests they postpone discussing that issue. (Further relevant information will be presented in  Module 6: Creative Approaches and Alternatives ).

Additional resources

Major treatises that include extensive discussion of the coverage of copyright law include  Nimmer on Copyright  (authoritative, but astronomically expensive) and  Goldstein on Copyright  (more concise, and somewhat less expensive).

A much shorter discussion of how the scope of copyright law has increased over time may be found in William Fisher, "Geistiges Eigentum - ein ausufernder Rechtsbereich: Die Geschichte des Ideenschutzes in den Vereinigten Staaten," in Eigentum im internationalen Vergleich (Vandenhoeck&Ruprecht, 1999), 265-91 (English version available as:  The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States ).

A more recent and more extended discussion of the same topic is  James Boyle, The Public Domain: Enclosing the Commons of the Mind  (Yale University Press 2008) (available for free online).

The best commentary on copyright law in general and its scope in particular remains a book published in 1967 by Benjamin Kaplan:  An Unhurried View of Copyright . Sadly, it is only available in print.

A good discussion of the concept of originality in copyright law, juxtaposing the versions of the concept used in the US and in the EU, can be found in Software Freedom Law Center,  Originality Requirements under U.S. and E.U. Copyright Law

A thorough discussion of the genesis of the "work for hire" doctrine can be found in Peter Jaszi, "Toward a Theory of Copyright: The Metamorphoses of 'Authorship,'" 1991 Duke L.J. 455.

Cases

The following judicial opinions explore and apply some of the principles discussed in this module:

Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991)  (originality)

Beckingham v. Hodgens, High Court of Justice (Civil Division), 2 July 2002  (joint authorship)

Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) (employment relationships)

Case C-240/07, Sony Music Entertainment (Germany) GmbH v. Falcon Neue Medien Vertrieb GmbH (2007)

Eldred v. Ashcroft, 537 U.S. 186 (2003)  (duration)

Computer Associates v. Altai, 982 F.2d 693 (2nd Cir. 1992)  (computer software)

Assignment and discussion questions

Assignment

1. What is the copyright term in your country? List some of the authors whose work will fall in the public domain in your country on January 1 of the coming year.

2. How do you think copyright law should apply to situations in which many people contribute small amounts to an online resource? For example, suppose that  Wikipedia  had not adopted a formal copyright policy. How should contributions to it be treated?

Discussion question(s)

Comment on the answers of your colleagues

Contributors

This module was created by  Inge Osman . It was then edited by a team including  Sebastian Diaz ,  William Fisher ,  Urs Gasser ,  Adam Holland ,  Kimberley Isbell ,  Peter Jaszi ,  Colin Maclay ,  Andrew Moshirnia , and  Chris Peterson .