Tuesday, August 3, 2010

Copyright: A very basic outline

As a basis for creative income, a professional author licenses or sells part or all of the property right generally known as copyright. In reality, copyright is actually a bundle of rights, any of which may be licensed or sold. The word licence is used to cover the rights that may be granted, for example, the right to publish an author’s work as a book, or the right to first publish an article in a magazine.

Because it is a property right, copyright can be bequeathed and inherited as well. However, copyright differs from rights covering tangible property such as real estate or possessions in that the works it covers can be copied or otherwise used easily without the knowledge of the owner.

In English Common Law, which forms the basis for the Australian legal system, copyright developed as a means by which a copyright owner retained some control over use of their work. Before the advent of the printing press, books were created by hand, a labour intensive process that limited both the number of books and the ability of authors to obtain any economic return from their creation. Authors either had to have a patron or be in a religious order. There was no income from authorship per se. Mass production of books by a printing press, however, offered authors the opportunity for a payment for each copy sold.

However, where there is commerce, there is also theft. Piracy evolved along with the technological innovation of the printing press. Unscrupulous printers could quickly produce unauthorised copies that offered no payment to the author or, and more importantly in political terms, the original publisher.

To counter such piracy the Crown was urged by to regulate the book trade, especially as the number of printers in the United Kingdom increased with the uptake of the new technology. In 1556, Catholic Queen Mary Tudor granted a charter to the Stationers' Company, a London guild of printers, bookbinders, and booksellers, which gave the Company exclusive powers. As always, there were mixed motives for the Crown’s action. Mary’s aim probably was to prevent the spread of the Protestant Reformation. Therefore, in return for preventing the publication of books deemed heretical or seditious the guild's members received a monopoly over the printing industry as only Stationers’ Company members could print books. To reinforce their monopoly the guild was also granted the power to search, seize, and burn all prohibited books and to imprison anyone printing without a licence. Using the Star Chamber, the Crown continued to exercise authority over the Stationers' Company and printing until the Chamber was abolished in 1641, when the English Parliament began to take issue with the power of the Crown and civil war broke out, leading to the execution of King Charles I in January 1649 and the abolition of the House of Lords.

These political changes had little effect on the monopoly of the Stationer’s Company (the guild). The way the system worked was that Company members bought perpetual monopoly rights in an author’s work. While guild members could purchase a manuscript from an author, authors could not become members of the guild and were not entitled to any royalties or additional payments after purchase. Additionally, guild members were allowed to buy and sell rights over authors’ works to each other. The Stationers' Company developed a system to keep track of which members claimed rights in what works and for handling disputes between members by recording transactions in a registration book at the Guilds' Hall.

Despite the major changes in power in the period, Parliament continued to extend the Stationers' Company's censorship/monopoly arrangement through a series of ordinances and Licensing Acts between 1643 and 1692 (the monarchy in the person of Charles II had been restored in May 1660). The Licensing Act of 1662 also required printers to deposit a copy of each work with the guild to prevent changes to the work after it had been reviewed by censors.

The Stationers’ Company’s monopoly was threatened when the last Licensing Act expired in 1694. From that point English booksellers faced an unregulated influx of cheap books printed outside Britain. After years of lobbying Parliament by authors and members of the Company, the Statute of Anne (named after the Queen who came to power in 1702) was passed into law on 10 April 1710. It was the first copyright act in the world. Its promulgation was justified as a matter of responding to piracy (the unauthorised copying of works) as much as anything else, but there were other forces at work. While it was argued that the passage of the Statute of Anne was a major victory for authors’ rights (as indeed it was), for those in power, the open dissemination of unfettered information was most likely seen as a much greater problem. As with Mary’s monopoly, the new act continued to regulate what was published.

Nevertheless, the Statute of Anne, “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors and Purchasers of such Copies, during the Times therein mentioned” to give it its full title, gave authors some rights in their works while continuing control over publication. Fundamentally for authors, the act introduced two new concepts. An author was recognised as the owner of copyright, and the Statute created a 21-year term of copyright for all works already in print at the time of its enactment and a 14-year term for all works published after. The concept of legal deposit was also enshrined in the Statute in that printers were also required to provide nine copies to the Stationers’ Company for distribution to the Royal Library, the libraries of Oxford and Cambridge universities, the libraries of the universities of St Andrews, Edinburgh, Glasgow and Aberdeen, and Sion College and the Faculty of Advocates library in Edinburgh. When Ireland became a part of Great Britain in 1801 Trinity College and King's Inns libraries in Dublin were added as further depositories. In Australia, the legacy of this legal deposit provision lives on with publishers in New South Wales, for example, required to send a copy to the State Library of New South Wales, Fisher Library at the University of Sydney, the NSW Parliamentary Library and the National Library of Australia. Other states have different legal deposit requirements.

Subsequent legislation introduced copyright protection for other works and also extended the term of protection. Australian copyright law currently is governed by the Copyright Act 1968 (as amended), which is very firmly wedded to the principles and legislative precedents developed in the UK from the Statute of Anne onwards.

Copyright law in the US particularly has continued to follow the course of reacting to commercial imperatives and hence has not always looked to protect the rights of creators. Copyright legislation was first enacted in the US to protect the American publishers who had pirated the works of British writers such as Charles Dickens. The Copyright Extension Act promoted by the pop-singer and Californian Congressman Sonny Bono on behalf of the American music and motion picture industries, passed by both houses of the US legislature on 7 October 1998 and signed into being by President Bill Clinton on 27 October 1998, extended the term of copyright for 70 years after the death of the author and for 95 years if the work was the product of a corporate author (the Walt Disney character Mickey Mouse was a major beneficiary of this change). Bono himself had died on 5 January 1998 as a result of injuries received in a skiing accident and his wife Mary, elected as his congressional replacement, oversaw the passage of the bill.

As a result of Australia signing the United States-Australia Free Trade Agreement (USAFTA), the Australian Copyright Act 1968 was amended from the beginning of 2005 to bring the term of copyright into line with US law. Currently in Australia copyright lasts for 70 years after the death of the author (although it is only 50 years for works where the author died before 1 January 2005). The countries that are members of the European Union extended the term of copyright to 70 years from 1993.

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