Laws that protect the rights of ownership to intellectual property are balanced against the right of the public to the free flow of information, just as the founders intended
By Marie Griffin
Independence Day brings to mind the ideals of revolutionaries who believed in our inherent rights “to life, liberty, and the pursuit of happiness” in an independent nation. But balancing liberty, or freedom, for the masses with an individual’s right to pursue happiness, including financial success, has produced tension throughout our history.
Although it isn’t perfect, one system that has been designed to maintain that balance is copyright law.
Copyright was one of the rights our founders enshrined in the U.S. Constitution in 1787. Per Article I, Section 8, Clause 8 of the Constitution, Congress was empowered to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
That limited time was set at 14 years in the first federal copyright law, the Copyright Act of 1790, with the option of renewal for 14 years (if the author was still alive).
With this law, Americans were incentivized to use their intellect to create by receiving exclusive rights to their works, based on the assumption that economic development and scientific advancement would follow. A time limit, meanwhile, ensured the public’s right to the free flow of information.
Another limit is that not all types of information are eligible for copyright. The intellectual creations of writers, artists, filmmakers, and others are protected, but the underlying facts, principles, and techniques are not. Neither are works produced by U.S. Government officials and employees as part of their duties.
As the U.S. Copyright Office puts it, “Always keep in mind that copyright protects expression, and never ideas, procedures, methods, systems, processes, concepts, principles, or discoveries.”
Expansions and Limitations of Copyright Law
Over the years, copyright terms have been stretched from 14 years to the lifetime of the author/creator plus 70 years, and the types of works eligible for copyright have expanded as technologies for duplication and distribution have exploded.
The 1790 copyright law only applied to creators of books, maps, and charts. Next came historical prints (1802), musical compositions (1831), dramatic compositions (1856), and photographs (1865). In 1870, paintings, drawings, sculpture, and designs for “works of the fine arts” were added. Works of foreign origin gained protection in 1891. Copyright was granted for makers of motion pictures in 1912.
The Copyright Act of 1976 was the first major revision of copyright law since 1909, and it set the stage for the digital era. It traded the outdated concept of “publications” with the neutral term of “original works of authorship fixed in a tangible medium of expression.” The Act listed seven categories of works but noted that the list was not all-encompassing: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works, and sound recordings.
In 1998, the Digital Millennium Copyright Act (DMCA) tried to inhibit the widespread duplication and pirating of copyrighted material on the internet and through social media. For example, it prohibited technologies like decryption that circumvent digital controls on access to copyrighted material.
The DCMA also established a safe-harbor provision—or a legal shield—that protects internet service providers (ISPs), including social media platforms, from being held directly liable for copyright infringement by their users. In an attempt to empower creators to protect their work, the DCMA devised a notice-and-takedown system whereby an ISP is obligated to remove infringing content after a copyright holder notifies it. The copyright owner must notify each ISPs of each specific violation and identify the Internet address of the poster, who may file a “counter notification” to dispute the infringement. The disputed content then goes back online unless and until a court rules in the content owner’s favor.
Although the DCMA was originally designed to help ISPs grow in the early years of the web without the burden of policing copyrights, it left copyright owners responsible for an expensive, complex, and endless process of identifying infringing content as it flows through multiple ISPs in mind-boggling volume and at warp speed.
The Conundrum of Fair Use
The doctrine of Fair Use, which harkens back to the founders’ desire to protect freedom of expression, first appears in copyright law in 1976. It carves out exceptions for the use of copyrighted material for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. When the use is reasonable in those and similar contexts, the doctrine goes, the user does not need permission from the copyright owner or pay a licensing fee.
The 1976 Copyright Act does not provide a definition of fair use. While it provides the following four factors for courts to consider when determining whether a particular use is fair, they are not meant to be the only considerations. Each case must be decided on its own facts.
- The purpose and character of the use, including whether it is commercial in nature or for nonprofit or educational use;
- The amount and substantiality of the portion used in relations to the copyrighted work as a whole;
- The nature of the copyrighted work, in which a highly creative or expressive work, like a novel or a painting, would be less likely to support a claim of fair use than a work that is primarily fact-based; and
- The effect of the use upon the potential market for or value of the copyrighted work.
The internet has made determining fair use much more complex. Linking to other people’s work is intrinsic to content creation on the web, yet there are no hard-and-fast rules on how to excerpt or attribute another’s content and when permission from a copyright holder is necessary.
Within the past two years, generative artificial intelligence (gen AI) has raised new questions about fair use, especially whether it is fair use to ingest content from the web to train gen AI apps. We’ve written about this topic many times in our Content Licensing Brief—including here, here and here.
As more publishers and creators use gen AI in content creation, questions will arise around how works that have been facilitated by gen AI should be considered in copyright law.
A Lifesaver for Creators and Businesses
Copyright law may have flaws, depending on your point of view, but it has kept many “creative types” and businesses afloat, from book and magazine publishers to musicians and photographers to social media influencers. Overall, it has done its job for the American economy.
In that positive spirit, the U.S. Copyright Office gets the last word. (Cue patriotic music.)
“Everyone is a copyright owner. Once you create an original work and fix it, like taking a photograph, writing a poem or blog, or recording a new song, you are the author and the owner… We are all also copyright users. When we read books, watch movies, listen to music, or use video games or software, we are using copyright-protected works.”
Let’s celebrate our nation today, applaud copyright and continue working together for its protections.
Marie Griffin is an editor and writer with a passion for B2B. She spent seven years covering B2B media as a primary contributor to Crain Communications’ BtoB Media Business, with a stint in the middle as VP/content & programming for American Business Media. Lately, she contributes monthly to the Association of National Advertisers’ online magazine for senior marketing professionals. Earlier, she was editor-in-chief of Drug Store News and 20/20 eyewear magazine.
