How Copyright Protects Authors
In the mid-5th century AD, while the Saxons were just getting comfortable post-invasion on a small island off the coast of Normandy, farther west the Irish were laying down what is arguably the first recorded copyright case law. The (later) sanctified St Columba copied an illuminated psalter text that had been translated by his teacher St Finian and then refused to return it. Taking his grievance to the High King of Ireland, King Dermott, gave St Finian justice for this unauthorised copying and, in the King’s words, ruled “to every cow its calf, to every book its [author]”.
Today the shape of copyright protection for authors is created by international treaties such as the Berne Convention, which binds its signatory nations, other later international instruments, and domestic legislation in its many forms. There are two predominant legal traditions that regulate copyright; the common law tradition where copyright is an economic right designed to protect investment either by an author or by an organisation. This system operates in the USA, the UK (with some adjustments from the European Union, for the present) Australia, New Zealand, South Africa, some “Commonwealth” countries and, to an extent, Canada. The other framework is known as “Droits d’auteur” and is, as “authors’ right” suggests, focussed more upon rewarding the unique expression of the creator. This system is found in Roman Law countries such as in Europe and Latin America.
Copyright is a term that describes a bundle of rights that come into being when an author creates a work that the law protects as property. To get protection as a copyright work, the work does not normally require registration. Copyright comes into being once a work is fixed in a material form – including digitally.
Copyright does NOT protect an idea. It protects the form in which that idea is expressed. For music, literature, art and drama, that idea must be original. The forms which are generally protected around the world and that are discussed here on Fairness Rocks are:
- written works (a book, song lyrics) called literary works
- musical works – the tune
- a dramatic work (a film script, a play, choreography)
- a film – film, a television programme, an animation, a computer game
- a sound recording – a CD, vinyl, an MP3 file, a digital file of a track
- printed editions – such as sheet music
(Photographs, paintings, sculpture, and broadcasts are also protected by copyright but we will not consider them here.)
The first owner of a copyright work – a book, a painting, a song, an orchestral piece or a lyric is the author – the person who creates it – known as the “author”. If, however, they are genuinely employed to perform the function of writer, artist composer or songwriter, the ownership of the copyright in the work will belong to the employer.
The copyright remains with the author unless and until all or part of the copyright is passed by contract to another party. When the copyright passes by contract to another party on an exclusive basis, the creator remains the author, but the owner will be the other contracting party.
Even though copyright is property one cannot actually see, it can be traded in ways similar to (but not the same as) those that apply to a house, or a bicycle. For example it can be traded by region, by usage or by period of time. One key difference is that when you sell a bicycle you do not have the bicycle any more. But one can give permission for someone to use a copyright work in a particular way, yet still retain the right to allow another person to use that same work in a slightly different manner.
Copyright is not a solid thing. It is made up of individual strands. These strands identify the way an owner can control the use of the work they own. There are 6 basic strands and they represent the things that require the owner’s permission before they can take place. So the owner must give permission for a song or a film, a book or a recording to be:
- copied (hence the outmoded term “copyright”)
- for copies to be issued to the public – selling CDs for example,.
- performed in public
- rented or lent to the public – a video library for example
- adapted – by, say arranging a popular song for orchestra or translating lyrics, or adapting a novel as a script and film
- communicated to the public (by TV or radio broadcast, for example, or streaming on the internet). There is a subset of the right of communication which is “made available to the public” which is when the audience chooses the time and place of accessing the work. So online streaming when the song is “pushed out” to the audience at a time that the audience cannot choose, will be communication. But when the audience accesses a work and “pulls” the work at a time of their own choosing, this is “making available”. This distinction is important because it affects the way in which, and the amount that, singers, songwriters and musicians are paid and by whom.
By combining the division of a work by region, by usage, by period of time and according to the different uses of the work (copying, performing, communication etc) many, many different licensing strands can be created. The more licences, the more money in licence fees flows back from users to the owner.
P.S. Check out the Fairness Rocks Library for articles about the current position for contracting screenwriters, directors and songwriters/composers