What Is Copyright? A Bundle of Rights With an Expiry Date

Copyright protects original works fixed in some tangible form, including literary works, which covers software source code, along with music, drama, artistic works, films, broadcasts and sound recordings. The requirement of originality is low in most systems, meaning the work must originate with the author rather than being copied, and need not be any good. The crucial limit is the idea and expression distinction: copyright protects the particular way something is expressed and never the underlying idea, method, system or fact. A recipe's list of ingredients is not protected while the accompanying prose is. A plot premise is free and a specific sequence of scenes and dialogue is not. A database of facts is protected in Europe by a separate right and in the United States generally only to the extent the selection and arrangement are creative, which is why a telephone directory arranged alphabetically was held unprotectable there. Names, titles, slogans and short phrases fall below the threshold and are dealt with by trade mark law instead.

What an owner holds is a set of separate exclusive rights that can be licensed or sold individually, which is why publishing contracts are long:

• •The right to copy the work in any medium
• •The right to issue copies to the public, which is the distribution right and is generally exhausted for a particular physical copy once it is sold
• •The right to rent or lend it
• •The right to perform, show or play it in public, which is what performing rights societies collect for
• •The right to communicate it to the public, which covers broadcasting and making it available online
• •The right to make an adaptation, including translations, dramatisations and, contentiously, some transformations of software
• •Moral rights in many countries, including the right to be identified as the author and the right to object to derogatory treatment, which in some jurisdictions cannot be sold at all

The term is long and varies by category and country. The common baseline, set by the Berne Convention as a minimum and extended by many states, is the life of the author plus seventy years in the European Union, the United Kingdom and the United States, with the Berne minimum being life plus fifty, which several countries still apply. Works of corporate authorship in the United States run ninety-five years from publication. Sound recordings, broadcasts and typographical arrangements have their own shorter terms. When the term expires the work enters the public domain and anyone may use it, which is why a publisher can print an edition of a nineteenth-century novel freely while the specific translation, introduction or typesetting may still be protected. Term extensions have been repeatedly granted, most famously by a 1998 United States act that added twenty years and was challenged unsuccessfully in the Supreme Court, and the economic justification for extending protection to works whose authors died decades ago has few defenders outside the industries that lobby for it.

Every system permits certain unlicensed uses, and the structure differs sharply. The United States uses fair use, an open-ended standard in which a court weighs four factors: the purpose and character of the use, including whether it transforms the original; the nature of the work; the amount taken relative to the whole; and the effect on the market for the original. Being transformative, meaning adding new expression or meaning rather than superseding the original, has become the dominant consideration. The United Kingdom and much of Europe instead use fair dealing, a closed list of permitted purposes including research and private study, criticism, review, quotation, news reporting, parody and caricature, and a use falling outside the list is infringing however reasonable it seems. That difference explains why advice that works in one country fails in another. Common misconceptions persist regardless of jurisdiction: crediting the author is not a defence, using only a few seconds of music is not automatically safe, non-commercial use is not automatically permitted, and material posted publicly online is not thereby free to reuse.

Because copyright is automatic and exclusive by default, sharing requires an affirmative licence, and standardised licences exist to avoid negotiating each one. Creative Commons offers a set of public licences with modular conditions covering attribution, commercial use, derivative works and share-alike requirements, and free and open source software licences do the same for code, split between permissive licences that ask little beyond attribution and copyleft licences that require derivative works be released under the same terms. Both rely on copyright rather than opposing it, since the obligations are enforceable only because the licensor holds the exclusive rights being conditionally waived. Collective licensing bodies handle situations where individual negotiation is impractical, collecting for public performance of music and for photocopying in schools and businesses, and orphan works, where the owner cannot be traced, remain a genuine unsolved problem that several countries have addressed with limited licensing schemes.

Copyright arises automatically when an original work is fixed, with no registration or symbol required in most countries, and it protects the expression rather than the idea, fact or method behind it. It is a bundle of separable rights covering copying, distribution, public performance, communication and adaptation, plus moral rights in many systems. It expires, commonly seventy years after the author's death, after which the work is free to use. Permitted uses follow an open fair use standard in the United States and a closed fair dealing list elsewhere.