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FOSS Licensing/Copyright Basics

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Why do We have Copyright?

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Compared to other legal concepts, copyright is a relatively new invention in human history. The development of copyright regulation reflects the social and technological transformation around human creative activity and distribution of the resultant profits. While granting exclusive private rights to authors or copyright holders has been considered as a way of encouraging human creative activity, copyright law also claims to recognize the larger public interest, particularly with respect to education, research and access to information.[1]

Copyright law uses various means to balance public and private interests. In the Statute of Anne (1710), the earliest modern copyright law, authorities are allowed to limit and control the price of printed books according to their best judgement. In the United States Constitution, authors are granted exclusive rights to their writings within a limited time. In copyright law, fair use exceptions are specified to avoid the drawbacks of excessive assertion of exclusive rights and to attain a balance between conflicting interests.

What can be Copyrighted?

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Copyright applies to the expression of ideas in different forms, including literary, dramatic, musical, artistic, and other intellectual works. [2] The ideas expressed in such works are themselves not copyrightable. [3] Since the 1980s, the copyrightability of software became internationally accepted.[4]

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Nowadays, copyright law does not require formalities. The author does not need to publish, register, pay a registration fee of any kind, nor attach a copyright notice to his/her/its work, for the copyright to take effect. Copyright is automatically applied to a work once it is created [5] and the creator of the work automatically becomes the copyright holder.

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Copyright is actually a bundle of rights, including the right to reproduce the work, to prepare derivative works based on it, to distribute copies of a work, and to perform and display a copyrighted work publicly. A few other kinds of rights are defined in copyright law. [6] Without the consent of the copyright holder, it is illegal for anyone to perform any of the activities mentioned above.

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Copyright Law has been expanded with time.

The first copyright legislation (the Statute of Anne, 1710):
Compared to other legal systems, copyright law came relatively late in human civilization. The first known copyright legislation was the Statute of Anne, enacted in 1710 in Great Britain.[7] For a newly created work, the Statute of Anne granted the copyright holders the right to print and reprint books and other writings for 14 years.
All-dimensional expansion of copyright law:
We can see from the Statute of Anne that, initially, the scope of copyright was quite limited. The copyrightable works were limited to books and other writings, the rights granted to the copyright holder were limited to printing and reprinting the work, and the length of the protection was limited to 14 years. Now, copyright law does much more. Copyrightable works now include paintings, sculpture, music compositions, music recording, architecture, and software. The bundle of rights granted to the copyright holder have been expanded to include the right to print, reprint, modify, display publicly, perform publicly, and distribute the work. Moreover, the term of copyright protection has been increased to 50 years after the author’s death. (In Europe and the US, it has been expanded to 70 years.)[8]

From National to International

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The expansion of copyright law has not been limited to one jurisdiction; it has become standardized internationally.

Berne Convention:
In the late 19th century, as copyrighted works gradually became important in international trade, the transnational copyright system gradually became a serious issue. The Berne Convention of 1886 first introduced the national treatment principle. This means that signatories to the Berne Convention will treat the work of a foreign copyright holder just as they treat their own citizens’ work. Thus, it created an international standard for copyright regulation.
However, without a dispute resolution mechanism, the Berne Convention offered a somewhat weak copyright, as it will be too costly for copyright holders to claim their rights in a foreign country where they believed their rights had been infringed.
More enforceable international standard: WTO and TRIPs:
In the 1990s, the World Trade Organization (WTO) and the Trade Related Intellectual Property Agreement (TRIPs) sought to establish a stronger international copyright regime. Every economy intending to become a WTO member is required to sign the TRIPs, and every TRIPs signatory must agree to comply with all of the key sections of the Berne Convention. The WTO also provides a dispute-settlement and enforcement mechanism for copyright infringements among member countries. Thus, copyright has become more enforceable internationally.[9]

The Abolition of Formality Requirements

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As set forth in the 1908 Berne Convention, copyright is applied to a work once it is created, without the need for any formality.[10] The author is not required to register, or even to publish a work to enjoy full copyright protection. In Berne Convention signatory countries, the law assumes that all authors claim all rights granted to them unless they explicitly state otherwise.

Copyright laws in different countries have been revised to comply with this standard. For example, anticipating that it would join the Berne Convention Union, the US revised its Copyright Act and abolished formality requirements in 1976.[11]

Footnotes

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