Summary: Recent court cases involving copyright law have caused many to consider this branch of intellectual property a sword for big businesses. However, copyright law benefits individuals and companies of all sizes. In this column, Doug Isenberg discusses why the Digital Millennium Copyright Act and the U.S. Supreme Court's opinion on the Copyright Term Extension Act should not be feared as much as critics would like us to think.
Author: The author of this column, Douglas M. Isenberg, is founder of the GigaLaw.com website and author of the book, "The GigaLaw Guide to Internet Law." A former news reporter and magazine editor, he practices intellectual property and Internet law in Atlanta. He also speaks and writes frequently on Internet law, including columns for CNET News.com and The Wall Street Journal Online, where a version of this column was previously published. He is licensed to practice law in the state of Georgia. E-mail: disenberg@GigaLaw.com.
Copyright Law Amended
Chances are, you are -- or your company is -- a copyright owner. Or, even if that's not true, undoubtedly both you and your company are users of works protected by copyright law. In any event, the ubiquity of copyrights, and the increasing number of news events about them (especially as they exist on the Internet), means that every business has an interest in how the courts and Congress are shaping copyright law, yet this important branch of intellectual property often remains misunderstood.
For example, the U.S. Supreme Court's ruling on January 15 upholding the Copyright Term Extension Act (89-page PDF) -- a 1998 law that extended copyright protection for 20 years -- was criticized by many who said the law benefited corporate America at the expense of consumers. Yet many of those same critics refuse to recognize that the law applies equally to every copyright owner, from starving artists to The Walt Disney Company, as well as everyone in between. Yes, it is true that Disney favored the law and that the late entertainer and Congressman Sonny Bono of California advocated it because Disney's copyright on the "Steamboat Willie" cartoon was nearing expiration; but, it is narrow-minded to think that the law benefited only this one corporation.
Similarly, the Digital Millennium Copyright Act (DMCA) (18-page PDF) -- which revised existing U.S. copyright law in several respects in response to the Internet and new forms of high technology -- is perhaps the law most reviled by consumers in the computing industry; yet it, too, benefits copyright owners of all sizes, not just large software and hardware manufacturers. And while cyber-libertarians like to speak of the law's potential Draconian effects, the courts thus far have told us these warnings are without merit.
Copyrights Everywhere
The U.S. Constitution informs us that the purpose of copyright law is to "promote the Progress of Science and useful Arts," yet many people believe copyrights are solely promoting the bottom line of corporate America. That is not true. By giving copyright owners exclusive rights to their works, copyright law gives all creators an incentive to create. Although there is considerable room for argument about how long those exclusive rights should last, blind arguments over the Supreme Court's recent decision would have us think that copyright law as a whole actually stifles creativity -- a patently absurd notion.
Copyrighted works are everywhere, yet for some reason many people mistakenly believe that only the so-called "entertainment industry" owns them. Employee manuals, client presentations, compilations of customer data, software, package designs, advertisements, maps and even toys all can be protected by copyright law. And, to the surprise of many, so is much of the e-mail we all write everyday.
Under U.S. law, copyright protection typically arises whenever an "author" creates an original work and "fixes" it in a tangible medium of expression. Unlike patents, copyrights need not be registered with a government office. And unlike trademarks, copyrights are not limited by geography without widespread use or registration. Although there are some benefits to attaching a proper copyright notice to a creative work (which would include the well-recognized circle-C symbol), a qualifying work is copyrighted and protected by copyright law even without it.
For these reasons, it is easy to see that copyrighted works are in our midst, and that many of us are unwittingly copyright owners. That many people don't exploit or get paid directly for creating their copyrighted works doesn't mean the works are any less deserving of protection than major motion pictures.
Just as many people are unaware of their status as copyright owners, many are unaware of their status as copyright infringers as well. Though some limited copying of most copyrighted material is permitted under the "fair use" doctrine, there are few blanket rules in this area of the law. So, for example, a company that regularly photocopies articles from industry journals and files them away for future research could be committing copyright infringement -- as Texaco learned a decade ago when its scientists did just that. The technological ease with which copying can occur today -- via e-mail, peer-to-peer music-sharing services or digital video recorders -- does not make copyright infringement any more legal; it only makes it more widespread.
No "Copyright Police"
Still, there are no "copyright police." Some copyright chicken littles would have us believe otherwise by citing the interesting case of a computer programmer who along with his company was criminally charged under the DMCA in 2001 for creating a software program that circumvented technological protections on e-books in the Adobe format, even though neither the programmer nor the company actually copied any e-books. But, charges against the programmer were dropped, and a jury in December 2002 found the company not guilty. Apparently, copyright law has not run amok.
Though the Digital Millennium Copyright Act and the Copyright Term Extension Act -- the two most recent important amendments to U.S. copyright law -- are understandably controversial, they have not turned this essential branch of intellectual property law into a dangerous sword to be wielded by corporate Goliaths. Instead, they are merely modern revisions to a 300-year-old legal structure that benefits us all.