Frequently Asked Questions about Copyrights - Author’s Rights?

Basics

What is Copyright? What are Author’s Rights?

Copyright is one of the various types of intellectual property. It is a set of rights that regulate the use of a particular expression of an idea or information related to artistic creations, such as books, music, paintings, sculptures, films and also related to technology base works such as computer programmes and electronic databases. Copyright protects the original expression of ideas, not the ideas themselves. It doesn’t protect facts or theories. In some jurisdictions of civil law tradition, the expression “copyright” is not employed; the term used is Author’s Rights. In these jurisdictions, beyond the rights to restrict third parties from the act of copying, there is an emphasis on certain specific rights -moral rights- which only the author and their heirs can exercise (such as the right to prevent a distorted reproduction). The differences between the two systems have been well documented.

Copyright, in its general meaning, refers to the whole area of law covering protection of authors, performers, producers and broadcasters but more strictly, the term refers to the protection of authors of creative and original works, but not to the protection of performers, producers and broadcasters, these persons are protected by “related rights” or “neighbouring rights”. This is also the case for jurisdictions of civil law tradition. The two systems (common law tradition of Copyright or civil law jurisdiction of Author’s Rights) have long co-existed and the objective is the same: the protection of the rights of authors over their literary and artistic works.

What are the set of rights enclosed by Copyrights and Author’s Rights?

There are two types of rights in Author’s Rights systems: Economic Rights and Moral Rights. Copyrights systems only recognise Economic Rights.

Moral rights, recognized in civil law jurisdictions, are rights to protect the honour and reputation of an author in relation to his/her works. Moral Rights are based on a French doctrine that considers personality immerse in the original work of authors and creators. In defence of his/her honor or reputation, the author has the right to claim authorship of the work and the right to object to any distortion, mutilation or modification or any derogatory action in relation to his/her work.

Moral rights are an extension of the author’s character and personality, and are intrinsic to the author/creator. As personality is not assignable, authors always retain their moral rights in relation to their work for ever.

Economic rights, both in Copyrights systems and Author’s Rights systems, is a property right that incorporates several exclusive rights like: i) the right to make copies of a protected work (reproduction right), ii) the right to sell or distribute copies to the public (distribution right), iii) the right to create adaptations or prepare new works based on the protected work and iv) the rights to perform a protected work or to display a work in public (performance, display and broadcasting rights).

What is covered by Copyrights/Author’s Rights?

Copyright covers the use of a particular expression of an idea or information related to artistic creations, such as books, music, paintings, sculptures, films and also related to technology base works such as computer programmes and electronic databases.

How do I obtain a Copyright/Author’s Rights on a work?

Copyright protection is free and automatically protects your original works of art and literature, music, films, sound recording, broadcasts and computer programmes from copying and certain other uses.  As soon as the work is fixed in a tangible form, it is protected under copyright law. In most countries, you do not have to place a copyright notice on a work for it to be protected.

The author of the work is automatically the owner of all copyrights in the work unless the work was created in the context of the author’s employment or was work for hire. If the work is employment or commissioned related, the employer/commissioning person owns the work in accordance with the work-for-hire doctrine. In jurisdictions of civil law tradition where author’s rights are followed this doctrine refers only to the economic rights as moral rights cannot be assigned (Germany does not accept corporate ownership of copyright)

In other words, in these jurisdictions the employer/commissioner enjoys an exclusive licence to the economic rights of the work created by employees.

What is a Copyright notice?

A copyright notice is a designation necessary in some few jurisdictions to establish the right, by naming the owner, the year in which the work was created or published and the symbol © (alternatively be written as either (c) or (C)).

Although a copyright notice with the owner’s name and date is not necessary in most countries, it can help prove your ownership, it can also act as a deterrent to potential infringers.

What are registered Copyrights?

Copyrights are granted automatically, but you could register it before the national authority to help prove your ownership. In some jurisdictions, to be able to sue if someone infringes your copyright, it must be register. If you register prior to infringement you are able to sue for additional damages and attorneys fees.

How long does Copyright last?

This varies according to national laws in each country and to the nature of the work and whether or not it has been published.

Depending on the material, copyright for literary, dramatic, musical and artistic works generally lasts 50 or 70 years from the year of the author’s death (post mortem auctoris) or from the year of first publication after the author’s death.

What is the Public Domain?

The expression “public domain” has different meanings depending on the jurisdiction and the context in which it is used. In some jurisdictions of civil law tradition, the expression public domain is used loosely, creating legal controversy because it can refer to the state ownership of assets (also called government ownership or state property) or assets hold by the state on behalf of the community for their use like parks, squares, or roads. It may also refer to community based ownership in natural resource management.

However, for use in relationship to intellectual property the expression public domain generally refers to information, knowledge, and innovations in relation to which no person or legal entity can establish proprietary rights or to which a right that grants protection has expired, allowing anyone to use or exploit it, whether for commercial purposes or not.

Determining what is and what is not in the public domain varies considerably. It may be in public domain in one jurisdiction but not another. In general, when term of protection expires, the information, knowledge, and innovations are released into public domain. With regard to patents, in most countries this term is 20 years. Expiration of copyrights can be a little more challenging to determine as the right remain in force for a certain number of years after the author’s death (post mortem auctoris) or from the year of first publication after the author’s death. There can even be cases of orphan works, where it could be difficult or impossible to contact the copyright holder.

Beyond expiration, there are other ways to release information, knowledge, and innovations into the public domain. Authors and inventors and in general the rightful proprietor may renounce or dedicate to the public the entire or part of the term of the intellectual property right granted. Such disclaimer is binding upon the grantee and its successors and in jurisdictions of civil law tradition this only refers to the economic rights of Author’s Rights since the moral rights of the author are perpetual and inalienable.

In the field of patents, defensive publishing is a mechanism for maintaining intellectual property in the public domain since the publication makes a description of the innovation available for anyone to use, the innovation can no longer be called new and the requirement for novelty in a patent application is no longer met.

Using Copyrighted Works of Others

Why be concerned with other people’s Copyrights?

Unless you know for sure that the action you are taking is covered by an exception or limitation set in the law or know that the work is in the public domain, you would be probably infringing someone’s right. Unauthorised use and distribution of copyrighted works is illegal. When taking a particular action like making copies or reproducing a material you need to make sure that you are not copying work protected by Authors’ Rights or Copyright.

How to determine if it is copyrighted?

As a general rule assume that all text, software, audiovisual works, photographs, digital images and sounds are covered by Copyrights or Authors’ Rights because protection is granted automatically (as soon as the work is created) and do not need to hold a copyright notice to be protected. What you need to determine is if the particular action you are taking with the work is covered by an exemption or limitation or is it in the public domain.

Can I use something that is copyrighted?

There are certain instances were you can use copyrighted material without the authorisation of the owner of the copyright, and without payment or compensation. These are exceptions and limitations on the economic rights, commonly referred as to “free uses” of protected works. For example, quotations and use of works by way of illustration for teaching purpose, or reproduction of newspaper and similar articles for the purpose or reporting current events. International treaties also permit developing countries to implement non voluntary licenses for translation and reproduction of works in certain cases, in connection with educational activities.

Countries are free to determine those special cases and some make exhaustive lists of exceptions and limitations. Other countries mostly from common law tradition, like the USA and some in EU, have developed general guidelines and tests for judges to consider when resolving copyright disputes. The USA follows a doctrine called Fair Use that sets four factors:

• the purpose and character of your use;
• the nature of the copyrighted work;
• the amount and substantiality of the portion taken, and
• the effect of the use upon the potential market

In simple words, with the Fair Use doctrine you should use a small portion of someone else’s work in a way that does not potentially affects the sales of the copied material -non-competitive way- and the purpose for your use is to benefit the public. By contrast, if you take large portions of someone else’s copyright for your own purely commercial reasons, you probably won’t be covered by the Fair Use doctrine in the USA. The EU has a directive with a 3-step-test to determine the cases were you can use copyrighted material without the authorisation of the owner of the copyright, and without payment or compensation. According to the requirements of the 3-step-test, exceptions must be limited to “special cases”, must not conflict with the “normal exploitation” of the work and must not “unreasonably prejudice the legitimate interests of the author.” In simpler words, you should ask: does the copyright holder ordinarily expect a fee?, and determine what are the accepted standards or business practices in the field.

In general countries recognise explicitly or implicitly limitations guidelines (either fair use doctrines tests or three-step tests) to be applied by the courts in the interpretation of the limitations on copyright recognised in their national copyright law. Unfortunately, the only way to get a definitive answer on whether a particular use is covered by an exemption or limitation is to have it resolved in court.

However, if you believe that you are covered by one of these particular cases you are free to use the copyright work without an authorisation. Otherwise, you must seek permission from the copyright owner to use the work providing specific information on your intended use of the work. For instance, you should clarify what work you want to use, is it for educational or commercial use, how many copies you intend to make and how the work will be distributed. Usually works related to artistic creations, may required permission from more than one source.

The owner of the copyright may limit the permission or authorisation to a specific period of time, allow the right to be exercised only in a specific part of the country or world, or require that the right be exercised only in a particular format like a hardcover book, a DVD or a magazine; and may or may not charge a fee to grant the permission. Fees could be one time charge or in the form of royalties (a percentage of the profits) if the permission is granted for commercial use.

How do you retain rights when assigning copyright to a publisher?

Authors in scholarly communities often trade the most important rights, like the right to make copies of their own works, when dealing with publishers. Publishers have their own procedures for negotiating copyright agreements but you can insert new language and there are legal options, at different stages of the negotiation (addendums or amendments) for retaining rights when assigning copyright to a publisher. Among the rights an author should retain, are the right to reproduce and distribute an electronic version of the article for posting on the author’s own Web site in order to make the article available to a particular community. If the publisher is not willing to renegotiate or grant a non-exclusive licence to you to use your own work, you should find another publisher. CGIAR scientists are encouraged to contact to CAS-IP to discuss these legal options during the negotiation with the publisher to retain rights in scholarly articles and to modify publisher’s copyright standard agreements.