Copyright Basics: Crash Course Intellectual Property #2

Summary

This Crash Course Intellectual Property video, hosted by Stan Muller, delves into the intricacies of copyright law, exploring its history, the types of works eligible for protection, and the exclusive rights granted to authors. It clarifies that copyright covers original works with minimal creativity and extends to expression, not ideas. The video also discusses the duration of copyright, the concept of 'works made for hire,' and the challenges posed by digital technology, concluding with an invitation for viewers to share their thoughts on copyright duration.

Takeaways

• 📚 Copyright law relates to the exclusive rights granted to creators for their original works, including the right to copy.
• 🏛️ The first copyright law, the Statute of Anne, was passed in 1709, granting ownership rights to authors rather than publishers.
• 🇺🇸 US copyright law is territorial and has its roots in the intellectual property clause of the US Constitution.
• 📝 Original works of authorship are protected by copyright if they are independently created and not copied from other works.
• 🎨 The level of creativity required for copyright is minimal, reflecting the belief that judges are not the best to decide what promotes knowledge progress.
• 🚫 Copyright does not protect ideas, facts, short phrases, titles, or familiar symbols and designs, as these fall outside the scope of copyrightable subject matter.
• 📚 Works must be fixed in a tangible medium to be protected, emphasizing the distinction between the intangible work and its physical copy.
• 📜 Copyright extends to the expression of ideas, not the ideas themselves, meaning that facts and common storylines cannot be copyrighted.
• 👥 The initial ownership of copyright goes to the human author(s) of the work, with special considerations for 'works made for hire'.
• 📊 Authors have a bundle of exclusive rights including reproduction, adaptation, distribution, public performance, and public display.
• ⏳ The duration of copyright in the US is the lifetime of the author plus 70 years, or for works made for hire, 95 years from publication or 120 years from creation, whichever is shorter.

Q & A

What is the significance of the right to copy in copyright law?

The right to copy, or reproduce, is one of the exclusive rights granted by copyright law, allowing the copyright holder to control the making of copies of the copyrighted work.

What is the history of copyright law in the United States?

The history of U.S. copyright law dates back to the Statute of Anne in 1709, which was the first law to grant ownership rights to authors. The U.S. Constitution's intellectual property clause, inserted in Article 1, Section 8, Clause 8, further established the power of Congress to promote the progress of science and useful arts by securing exclusive rights to authors and inventors.

What types of works are eligible for copyright protection?

Copyright law protects original works of authorship, which can be in the form of literary works, musical works, sound recordings, dramatic works, pantomimes, choreographic works, pictorial, graphic, and sculptural works, motion pictures, and architectural works.

What is the minimum level of creativity required for a work to be copyrightable?

For a work to be copyrightable, it only needs to exhibit a minimal amount of creativity, which has been described by judges as a 'scintilla,' a 'dab,' or even a 'glimmer.'

What are some examples of things that cannot be copyrighted?

Examples of things that cannot be copyrighted include words, short phrases, names, titles, slogans, fonts, coloring, mere listings of ingredients or contents, familiar symbols or designs, and facts.

What is the concept of 'works made for hire' in copyright law?

A 'work made for hire' is a work created by an employee within the scope of their employment or certain works specially ordered or commissioned. In such cases, the employer or the company is considered the author of the work, not the individual creator.

What are the exclusive rights granted to authors or owners of copyrighted works?

The exclusive rights granted to authors or owners include the right to reproduce the work, the right to create adaptations, the right to distribute copies, the right to perform the work publicly, the right to display the work publicly, and the right to transmit the work digitally.

What is the term of copyright protection under the most recent version of the U.S. Copyright Law?

Under the most recent version of the U.S. Copyright Law, the term of copyright protection is the lifetime of the author plus 70 years. For works made for hire, the term is 95 years from publication or 120 years from the date of creation, whichever is shorter.

What is the difference between copyright and the physical ownership of a work?

Copyright protects the intangible expression of an idea, not the physical copy of the work. One can own a physical copy of a book but not the copyright to the book's content.

How does copyright law differentiate between ideas and expression?

Copyright law extends only to the expression of ideas and not to the ideas themselves. Until an idea is fixed in a tangible medium, it is not protected by copyright.

What is the role of Patreon in supporting Crash Course Intellectual Property?

Patreon is a crowdfunding platform that allows supporters to fund Crash Course Intellectual Property, helping to keep the series free for everyone. While supporters can receive rewards for their contributions, they do not gain ownership of the Crash Course copyright.

Outlines

00:00

📚 Introduction to Copyright Law

Stan Muller introduces the topic of copyright law, explaining its relation to the right to copy and its role in protecting the reproduction of copyrightable works. He discusses the history of copyright in the United States, starting with the Statute of Anne in 1709, which granted ownership rights to authors. The intellectual property clause in the US Constitution is highlighted as the basis for Congress's power to promote progress through copyrights and patents. The video aims to cover the types of works that can be copyrighted and the rights granted to authors or owners.

05:02

🏛 The Basics of Copyright Protection

This paragraph delves into the criteria for copyright eligibility, emphasizing the requirement for originality and a minimal level of creativity. It clarifies that copyright does not protect ideas, facts, or 'scenes à faire', but rather the expression of those ideas. The paragraph also distinguishes between the intangible literary work and the physical copy, noting that copyright extends to the former, not the latter. It outlines the categories of works protected by copyright, such as literary, musical, and dramatic works, and explains the necessity for works to be fixed in a tangible medium to be protected.

10:04

🤝 Ownership and Rights in Copyrighted Works

The paragraph discusses who can obtain copyright, initially vesting in the human author(s) of the work, with exceptions for works made for hire. It explains the concept of works made for hire, where the employer is considered the author if the work is created within the scope of employment or as part of a commissioned project. The paragraph also covers the exclusive rights granted to authors, including reproduction, adaptation, distribution, public performance, and public display, and how these rights have been adapted to the digital age, including the challenges posed by the Internet.

🕊️ Copyright Duration and Public Domain

This final paragraph addresses the duration of copyright protection, which lasts for the lifetime of the author plus 70 years, or for works made for hire, 95 years from publication or 120 years from creation, whichever is shorter. It mentions the upcoming public domain status of the video in 2111 and invites viewers to share their thoughts on the appropriate length of copyright terms. The paragraph concludes by acknowledging the Crash Course team and Patreon supporters, noting that while supporters can contribute to the series, they do not gain ownership of the copyright.

Keywords

💡Copyright Law

Copyright Law refers to the legal framework that grants creators of original works exclusive rights for a certain period of time. In the video, it is the central theme, explaining the history, purpose, and evolution of copyright law in the United States. The script discusses the exclusive rights granted by copyright law, such as the right to reproduce, distribute, and publicly perform the work.

💡Intellectual Property Clause

The Intellectual Property Clause is a part of the U.S. Constitution (Article 1, Section 8, Clause 8) that empowers Congress to promote the progress of science and useful arts by securing exclusive rights to authors and inventors. The video uses this clause to illustrate the constitutional basis for copyright and patent laws, emphasizing the importance of these laws in fostering innovation and creativity.

💡Original Works of Authorship

Original works of authorship are creations that are independently conceived by an individual and not copied from other works. The video explains that originality, in the context of copyright, requires only a minimal level of creativity and is a fundamental requirement for a work to be eligible for copyright protection.

💡Statute of Anne

The Statute of Anne, enacted in 1709, is considered the first copyright law. The video mentions it as a historical milestone because it was the first to grant ownership rights to individual authors rather than publishers or printers, setting a precedent for future copyright legislation.

💡Copyrightable Subject Matter

Copyrightable subject matter refers to the types of works that can be protected under copyright law. The video outlines categories such as literary works, musical works, and dramatic works, among others, that are eligible for copyright protection, emphasizing the broad scope of what can be copyrighted.

💡Tangible Medium of Expression

A tangible medium of expression is a physical form that can be perceived, reproduced, or otherwise communicated. The video explains that for a work to be copyrighted, it must be fixed in a tangible medium, such as a book, a recording, or a digital file, which allows it to be copied or reproduced.

💡Idea vs. Expression

The video distinguishes between ideas and expression, stating that copyright law protects the expression of ideas but not the ideas themselves. This means that while the specific way an idea is presented in a work is protected, the underlying concept or fact is not.

💡Works Made for Hire

Works made for hire are creations that are considered to be authored by the employer rather than the employee, under certain conditions. The video discusses this concept in the context of employment relationships, where the employer is deemed the copyright holder of works created by employees within the scope of their employment.

💡Exclusive Rights

Exclusive rights are the legal rights granted to copyright holders, which include the right to reproduce, distribute, publicly perform, and display the copyrighted work. The video explains these rights as the bundle of privileges that authors have over their works, which are exclusive to them unless they grant permission otherwise.

💡Public Domain

The public domain refers to works that are no longer protected by copyright and are freely available for use by the public. The video mentions the term in the context of the duration of copyright protection, noting that works will eventually enter the public domain after the expiration of copyright terms.

💡Fair Use

Although not explicitly mentioned in the script, the concept of fair use is a significant aspect of copyright law, allowing limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. The video's discussion of the limits of copyright protection implicitly touches on the principles of fair use.

Highlights

Copyright law relates to the exclusive right to copy, known as the 'copy right'.

The history of U.S. copyright law begins with the Statute of Anne in 1709, the first law granting authors ownership rights.

The U.S. Constitution's intellectual property clause empowers Congress to promote the progress of science and useful arts through copyrights and patents.

Copyright law protects original works of authorship, requiring only a minimal degree of creativity.

Judges and lawmakers are not best suited to decide the worth of creative works, according to Justice Oliver Wendell Holmes.

Works not protected by copyright include names, titles, slogans, fonts, and mere listings of ingredients or contents.

Copyright law does not protect ideas or facts, only their expression once fixed in a tangible medium.

Works created by the Federal Government are not eligible for copyright protection.

The 1976 Copyright Act states that initial ownership goes to the human author(s) of the work, excluding non-human entities.

Works made for hire are considered authored by the employer or company, not the individual creator.

Authors have exclusive rights in their works, which include reproduction, adaptation, distribution, public performance, and public display.

The term of copyright protection is the lifetime of the author plus 70 years, or 95 years from publication for works made for hire.

Copyright law has struggled to adapt to new technologies, such as streaming and digital distribution.

The Supreme Court ruled that Aereo's service constituted an illegal public performance, rejecting the argument of private performance.

Crash Course Intellectual Property is funded by Patreon, but supporters do not gain ownership of the copyright.

The video discusses the ongoing debate about the appropriate length of copyright terms.

Transcripts

Hi. I'm Stan Muller, this is Crash Course Intellectual Property, and today we're going

to be talking about copyright law. As you might have guessed, the law of copyright relates

to the right to copy, the copy right as it relates to copies of copyrightable works. You copy?

[Theme Music]

Right. So, the right to copy or reproduce copyright protected works is only one of the

exclusive rights granted by the law of copyright. We're also gonna discuss what types of things

can actually be copyrighted, what we call the subject matter. But first, let's talk

a little bit about the history of copyright law in the United States. Why the United States?

Not because the US is exceptional and not because I'm a cultural imperialist trying

to erode the identity and fabric of foreign nations. Mostly it's just because we're making

this video in the United States and copyright law is territorial.

So, in 1709, England passed the Statute of Anne, which is widely considered to be the

first copyright law. The Statute of Anne was the first law to grant ownership rights to

individual authors rather than to publishers or printers. Throughout the 18th century,

several of the American colonies adopted copyright and copyright-like laws based on the Statute

of Anne. The drafters of the US Constitution inserted what is commonly called the intellectual

property clause in Article 1, Section 8, Clause 8 and reads, "The Congress shall have the

power to promote the progress of science and useful arts by securing for limited times

to authors and inventors the exclusive rights to their respective writings."

So listed right up there with Congress's power to lay and collect taxes and to declare war

and gather armies is the power to promote the progress of learning and knowledge through

the grant of a limited monopoly to authors and inventors in the form of copyrights and

patents. It is, without question, the coolest of the Congressional powers. Stan, does that

seem biased? Oh, I'm Stan, oh, uh, Mark, does that seem biased? No? Good. The law has undergone

several major revisions in the past 225 years, and it's currently in the process of a major review.

So let's talk about what types of works are eligible for copyright protection and what

rights authors or owners have in those works. Copyright law protects original works of authorship.

Originality in the context of copyright means only that the work owes its origin to the author.

That is, it's independently created and isn't copied from other works.

How creative do these original works have to be though? Not very, at all. For a work

to be copyrightable, there only needs to be a minimal amount of creativity. Adult judges

in court have described in in court as a scintilla, a dab, even a glimmer. So why is the bar for

creativity set so low? Well, it's because lawmakers and judges probably aren't the best

people to decide what types of creative works promote the progress of knowledge. Supreme

Court Justice Oliver Wendell Holmes said, "It would be a dangerous undertaking for persons

trained only to the law to constitute themselves judges of the worth of pictorial illustrations

outside of the narrowest and most obvious limits." Holmes may have been speaking specifically

about pictorial illustrations in this case, but the principle applies to any type of creative work.

Anyway, Holmes clearly feels that judges don't necessarily make the best art critics.

So what does Holmes mean by "narrow and obvious limits"? Well, words and short phrases like

names (John Green), titles (like The Fault in Our Stars), slogans ("one sick love story"),

fonts, coloring, mere listings of ingredients or contents, familiar symbols or designs (like

an 8-ball), none of this is protectable under copyright law. Are they protected by any other

branch of intellectual property? Ask again later.

One quick note: In order for a work to be protected by copyright, it need not in and

of itself promote the progress of science. From literary novels to the most graphic pornography,

it's probably protectable. The courts have concluded that it isn't a question of whether

a work promotes the progress of knowledge but that all works are granted equal protection.

In this way, the law encourages people to create a diverse array of stuff. At the end

of the day, it's the system that promotes the progress of science and not the individual works.

Copyright law protects original works of authorship. Works of authorship fall into any of the eight

categories that are listed in the copyright act. Literary works are basically anything

that can be embodied by letters or numbers, including novels, blogs, computer programs,

websites, databases, and possibly really creative tweets. Musical works refers to the actual

musical notation of a song by say, T-Swizzy. Sound recordings are the actual music embodied

in the record or the CD or an MP3 that extends to things like audiobooks. That's what you

actually hear. Dramatic works, which are basically stage productions like Wicked or Cats or Waiting

for Godot. Pantomimes and choreographic works. Pictorial, graphic, and sculptural works.

Motion pictures, and even architectural works, all of these are considered to be writings.

Congress has indicated that this list isn't exhaustive, and it's vague on purpose, because

humans are coming up with new ways to express themselves all the time. Believe it or not,

this is not the apex of human creativity. So imagining the Guggenheim or a mime routine

as writing can feel like a stretch. In order for any of these works to be considered bona

fide writings in the Constitutional sense, they must be fixed in any tangible medium

of expression, be that a book, an MP3, source code, choreography, a blueprint, or whatever.

The only requirement for a tangible medium of expression is that we as humans either

on our own or by using a computer or some other device be able to perceive it in the form of a copy or record.

This brings up a widely misunderstood aspect of copyright: copyright protection extends

to the intangible material, the literary work, not the physical copy of the work. You may

own the copy of the book, but you don't own the copyright. Also, copyright extends only

to expression and not to ideas. If you come up with a million dollar idea for the best

movie ever made or the greatest novel in history, until you actually write these masterpieces

and fix them in a tangible medium, copyright law doesn't protect you.

And you can't copyright facts. Let's say you do some research and discover that Matthias

Buchinger was born in Germany on June 3, 1674 without hands or legs. He was a famous artist,

calligrapher, and magician. He was called "The Little Man of Nuremberg" and "The Greatest

German Living", and he was married four times, fathered at least 14 children by eight different

women. Even if you spend your entire academic career uncovering these fascinating facts,

facts alone aren't copyrightable. A biography of Buchinger would qualify for copyright protection,

but only the narrative expression would qualify. Subsequent biographers could use the facts

you uncovered in your research but would be prohibited from expressing those facts using

your words. They'd have to make up their own.

"Scènes à faire" or scenes that must be done are not copyrightable either. These are

well-worn storylines like a pair of star-crossed lovers from feuding families or fables or

folklore. This sounds to me like a cliche. You can't copyright stuff like the idea of

a dastardly villain tying a damsel to a train track.

Finally, works created by the Federal Government can't be copyrighted. That's why we can show

you this and this and this, no charge. Thanks, federal employees!

So who can get a copyright? Well, according to the 1976 Copyright Act, ownership initially

goes to the author or authors of the work. One of the only limits to this rule is that

the individual author has to be a human being. If the work is created by an entity other

than a human, like say a monkey or a mindless automaton or an employee, that creator is

not an author. I'm kidding, okay? Employees are humans, but that does bring us very nicely

to the idea of works made for hire. Let's go to the Thought Bubble.

So, if your boss tells you to create something, then your boss or the company you both work

for, is considered to be the author of that something. A work made for hire can be a work

prepared by an employee within the scope of his/her employment, or certain works that

are specially ordered or commissioned. Many employment contracts spell out what constitutes

work made for hire. If they don't or if there's no clear employee/employer relationship, courts

look at things like whether the employee used the employer's computer, created the work

during normal work hours, or was directed by a supervisor during the creation process.

If it seems that there was an employer/employee relationship and the employee created the

work while acting within the scope of that employee's duties, it probably was a work

made for hire. So in these cases, the employer is considered to be the author. The actual

people who created the work have no economic rights in the work, other than the fact that

they were compensated for their efforts. This video is a work for hire. Frank's script,

my performance, Mark's directions, Zulaiha's script supervision, Brandon's editing, Thought

Café's animations, Jason's music, these are all components of this motion picture work

and they all belong to the company we work for. One interesting question here is what

rights, if any, you may have if you support Crash Course via Patreon. Are you as a paying

supporter functioning as our employer? Did you commission this work? Is this a work made

for hire, authored by tens of thousands of supporters? If you participate in a crowdfunding

scheme where subscribers vote on or suggest the direction of the creative work, are you

joint authors? Magic-8 Ball? Huh. Better not tell you now. Thanks, Thought Bubble.

So authors have a bundle of exclusive rights in their copyrighted works. They get these

rights at the moment the work is created. Authors don't have to register their works

to be protected, but there are benefits to registration. For example, authors can't go

to federal court to enforce their copyrights unless they've registered it. The reproduction

right is, put simply, the right to copy. Under US law, reproduction relates only copying

the producer's copy or photo records, which, as we just learned, have to be fixed, tangible,

and intelligible. In a lot of ways, our modern digital world is just an intricate network

of copying. Think about how this video got from me to you. I don't even know where the

actual copy of this work resides. We have a master copy on a hard drive in the closet

over there, but the copy you're viewing has been uploaded and copied to Google's servers

and then it gets transferred and copied from server to server across the Internet until

it reaches you, where an intricate sequence of copying takes place in your device's processor

and memory so that you can stream it and view it. So in this system where damages pile up

for every instance of infringement and statutory damages can be as much as $150,000 every time

an infringing copy is made, get out the confetti cannon, because we are rich! What? Most of

these temporary copies aren't fixed or tangible? Are you sure? We're not rich? Let's get an

employee or a mindless automaton in here to clean up all this confetti. Hey, a Roomba!

Roomba is a registered trademark of the iRobot Corporation.

Okay, so, the adaptation right means that copyright owners have the exclusive right

to create or authorize, "any translation, musical arrangement, dramatization, fictionalization,

motion picture version, sound recording, art reproduction, abridgment, condensation, or

any other form in which the work may be recast, transformed, or adapted." Under the distribution

right, copyright owners have the right, "to distribute copies or phonorecords of the copyrighted

work to the public by sale or other transfer of ownership or by rental, lease, or lending."

This seems pretty straightforward until the Internet happened.

In the digital world, what counts as a distribution? Things like streaming video services, torrent

sharing, even the idea of licensing media for marketplaces like iTunes are fairly new,

and the law has struggled to keep pace with the emerging technology. Really, all we can

do is ask our trusty liquid filled dye agitator. Reply hazy, ask again later. You know, I don't

think this thing is magic at all. These answers are ambiguous and they seem to be arbitrary

and I don't think you should make your decisions based on this.

But anyway, the public performance right allows copyright owners, "to recite, render, play,

dance, or act any copyright protected work, either directly or by means of any device

or process." The Supreme Court recently ruled that Aereo, an online video service, made

an illegal public performance when it let customers view broadcast television over the

Internet. Aereo argued that since each of their customers were assigned an individual

antenna, when they would transmit the over-the-air broadcast to each user, it was a private performance.

The court disagreed. Under the public display right, copyright owners have the exclusive

right to display their works. In 1995, a sixth right, digital audio transmission was created.

This is what comes into play whenever you stream music on Spotify or Pandora.

Under the most recent version of the US Copyright Law, these exclusive rights last for the lifetime

of the author plus 70 years. For works made for hire, terms last for 95 years from publication

or 120 years from the date of creation, whichever is shorter. So that means this video won't

end up in the public domain until January 1, 2111. That is a long time. A lot of people

think that's too long. Some people think that's not long enough. What do you think?

Tell us in comments, and we'll see you next week.

Crash Course Intellectual Property is filmed at the Chad and Stacey Emigholz studio in

Indianapolis, Indiana and it's made by all of these nice workers for hire. If you'd like

to keep Crash Course free for everyone forever, you can fund the series on Patreon, a crowdfunding

platform that allows you to support the content you love. You can get awesome rewards for

your support, but you do not get ownership of the Crash Course copyright. Sorry.

The greatest reward, though, is helping people learn stuff. Thanks for watching, and we'll see you next week.