Glossary of Terms: Copyright

Last updated September 24, 2007 by Michael Z. Newman.  This document is also available as a PDF.

This is my gloss on some basic terms used in discussing copyright and related issues in media regulation and digital culture.  Unless otherwise noted, the links are to Wikipedia and the words are mine (in the sense that they are not passages copied verbatim from any source).

Copyright is an assertion of legal property rights over creative work such as writing, software, music, film and video, and art.  Copyright laws prohibit the unauthorized use of this creative work for a specified term, including copying, adapting, transforming, or republishing.  As I write, the term of copyright in the United States is the life of the author plus seventy years for an individual, and ninety-five years from the date of publication or 120 years from the date of creation, whichever comes first, for a corporation.  When the copyright term expires, a work passes into the public domain and anyone may use it in any way they like. 
    Some copying of copyrighted works is permitted under the law.  For instance, you are allowed to quote portions of copyrighted work in a review of that work.  Exceptions such as this one are called fair use.  Under current U.S. law, copyright does not need to be registered--all creative work is covered by the law.  Even your e-mail messages to your mom and your three year-old cousin's scribbles are protected.  Owners of copyright may give or sell the right to use their works as, for example, when the author of a book sells the rights to adapt it into a movie.
    Copyright is a form of media regulation and its purpose should be to balance two competing interests: an interest in giving creative people the incentive to create by fairly recompensing them for their work, and the interest in giving the public the largest possible benefit from their culture.  Copyright is a property right, but in some significant ways it is different from other property rights.  When you copy or otherwise use a creative work without paying for it, you do not deprive the owner of that work but only of the right to sell it to you.  Thus copyright is not so much about the protection of property as it is about the regulation of commerce in creativity.

The Copyright Clause (Article I, Section 8, Clause 8) of the United States Constitution states that the Congress has the power "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."  The Copyright Clause thus requires that the law protect creative work and states the reason for doing so as the promotion of creativity.  It also states that this right is not absolute--it is "for limited Times".  This means that Congress may not pass an indefinite extension of copyright.  Advocates of copyright reform believe that the recent copyright extensions such as the Sonny Bono Copyright Extension Act are in violation of the Copyright Clause because they prevent copyrighted works from passing into the public domain.  The Supreme Court has ruled that since the SBCTEA allows for a limit on the term of copyright, it is not unconstitutional.

Fair Use is otherwise-prohibited use of copyrighted works, such as copying and adapting, that is protected under the law.  Two kinds of fair use that are generally protected are quotation from copyrighted works and parodies of copyrighted works.  It is important that society support criticism and debate, so it must be possible to use copyrighted works in the process of discussing and arguing over them--even of making fun of them.  Without fair use we would have no Mad Magazine or Saturday Night Live.  There is considerable debate about what constitutes fair use.  Advocates of copyright reform believe that it should extend to a wide range of media practices; advocates for the major media industries believe it should be narrowly construed.

Public Domain is the designation for creative works that are past their term of copyright.  Works in the public domain face no restriction in their use; anyone may copy and sell them, remix them, adapt them, etc.

Piracy, as a synonym for "theft," is a term the major media industries use to refer to copyright infringement.  This may include a wide spectrum of practices, from the mass distribution for profit of illegally copied videos in China, where this kind of infringement is rampant, to file sharing across p2p networks.  Copyright reform advocates generally reject the notion that p2p sharing is a form of piracy, but the major media industries are active in lobbying government to crack down on all forms of media distribution that they deem to be instances of the theft of their property.

Orphan works, according to the U.S. Copyright Office website, are "copyrighted works whose authors are impossible to identify or locate."  Because of this impossibility, there is a disincentive to make new creative work that uses orphan works in ways that would violate their copyright.  For instance, if you want to make a film that incorporates footage from an orphan work, you cannot claim copyright clearance and you risk the possibility of being sued for copyright infringement should the copyright owner materialize.  Orphan works are a problem because the law does not require that copyright be officially registered (as it used to do).  Dealing with this problem is one central concern of proponents of copyright reform.

Copyright reform is a movement to change the current copyright legislation in the United States to allow for greater use of protected works and to limit the power of the major media industries to exploit their products and control their uses.  One copyright reform group is the Electronic Frontier Foundation (this link is to their page on fair use and DRM ).  Another is Free Culture, who take their name from the title of a book by Lawrence Lessig, a major proponent of copyright reform.

The RIAA (Recording Industry Association of America) and MPAA (Motion Picture Association of America) are trade organizations representing the major media companies in music and film/television, respectively.  They seek to influence government in favor of the media industries' interests, for example, by supporting the extension of copyright terms.  In recent years they have been especially active in defending their industries against media piracy.  They do so by promoting encryption technologies called  Digital Rights Management (DRM) that prevent users from being able to copy and share digital versions of music or movies/television.  The RIAA has taken legal action against individuals who circumvent DRMs.  Both organizations support legal actions against copyright violators, and the RIAA has brought several highly publicized suits against corporations and individuals.  Both are currently mounting major publicity campaigns against media piracy.  Official sites: RIAA, MPAA. 

p2p stands for peer-to-peer and refers to computer networks that allow individuals to share digital media files across the network.  Some p2p networks are Napster, Gnutella, and BitTorrent.  Although they can be used to share material that is not protected by copyright, such as open source software or media distributed under a Creative Commons license, their most frequent use is to distribute copyrighted media products, such as movies and music, illegally.  Thus the RIAA and the MPAA are lobbying government to pass laws to prohibit p2p sharing.

Open source originally referred to a form of software development that allowed any user of an application to view its source code and to rewrite it to fix bugs or improve functionality.  Its opposite is proprietary content, or software that users cannot freely adapt to suit their needs.  In operating systems, the best examples of open source and proprietary software are, respectively, Linux and Windows.  Compared with Windows, Linux is relatively bug-free and easily adaptable because it has been developed by a large number of coders (or hackers, as some like to be called) who share their work across computer networks.  More recently, open source has been used to describe any large-scale creative collaboration such as Wikipedia.  In principle, open source creativity is antithetical to copyright protection, since the creative work in question is the product not of a single author or corporation, as with proprietary content, but of a community of users who constantly rework and adapt the product to suit myriad, various needs.

Remix Culture refers to creative work that is derivative of other creative work.  Examples include hip-hop music, which samples beats and riffs from existing records, and musical mashups that take two (or more) existing pieces of music and combine them to form a third.  See for instance the website of mashup artist DJ Earworm, who wrote a book about how to create this kind of work called the Audio Mashup Construction Kit (Amazon).  Remixing has always been part of creativity--Shakespeare remixed existing narratives to create many if not all of his plays--but in recent years new technologies have made it much easier to sample and quote bits of text, music, or video.  Remix culture is often in violation of copyright laws.

A mashup is a creative work made up of a combination of existing creative works, usually in such a way that their combination creates new meanings or uses.  Mashups include songs (see Remix Culture above), videos (e.g., recut movie trailers that combine music from one movie with images from another, as in Brokeback to the Future, a video circulated widely on YouTube), and web applications like Google Maps mashups that combine Google's map application with other programs (see the blog Google Maps Mania for examples of these; one is findbyclick, a Starbucks locater).  As a kind of remix culture, mashups are often in violation of copyright laws.

DRM stands for Digital Rights Management and refers to an encryption that prevents users from copying a movie, software application, or other creative work that they own in a digital form.  The major media industries (those represented by the RIAA and MPAA ) are using DRMs to prevent piracy of their content and control users' access to it.  The Digital Millennium Copyright Act of 1998 makes it a crime to interfere with DRMs, even if you do not then profit from the sale of the encrypted content.

The Digital Millennium Copyright Act (DMCA) of 1998 makes it a crime to produce or distribute technologies that circumvent digital rights management (DRM).

The Sonny Bono Copyright Term Extension Act (SBCTEA) of 1998 extended the term of copyright by twenty years, from fifty to seventy years after death for individuals, and from seventy-five to ninety-five years for corporations.  It effectively made it impossible for any new works to enter the public domain  until 2019.  Many critics call it the Mickey Mouse Protection Act because Disney lobbied for its passage as a way of keeping its still-profitable copyrighted work from the early 20th century from passing into the public domain.

Creative Commons (website) is a non-profit organization that "provides free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry."  By adopting a Creative Commons license, you can set the terms by which others may use your work.  For instance, this web page has an "attribution-noncommercial-share alike" license.  That means that anyone may use this page however they like as long as they give attribution to the source.  They may not use it in a commercial context (e.g., by selling it or placing it on a page that has advertising) and they must adopt the same copyright terms.  This license gives users more freedom than they would have otherwise under current United States law.