What’s difference between an idea an the expression of an idea? What’s the difference between borrowing and stealing? What’s covered under Copyright and what’s not? If you want clear answers to those questions, hire a layer! If you want a basic understanding, keep reading.

The interwebs should not be a replacement for proper legal advice. We created this article with the help of Wikipedia and Nina Paley’s “Mimi and Eunice” not to replace the need for an attorney, but to give you basic understanding of copyright and its limitations and exceptions. Also check out other Filmmaking Terms Explained in this ongoing series.

Threshold of originality

The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. In this context, “originality” refers to “coming from someone as the originator/author” (insofar as it somehow reflects the author’s personality), rather than “never having occurred or existed before” (which would amount to the protection of something new, as in patent protection).

In United States copyright law, this principle was invoked in the 1991 ruling of the United States Supreme Court in Feist Publications v. Rural Telephone Service. The court opinion stated that copyright protection could only be granted to “works of authorship” meeting this minimum threshold of originality. As such, mere labor, if not original, was not copyrightable. This legal interpretation was derived from the Copyright Clause of the United States Constitution, which grants Congress 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.” This requirement sets a very low bar for originality under U.S. law. For example, the expression of some obvious methods of compilation and computation, such as the Yellow Pages or blank forms, cannot receive a copyright (demonstrated in Morrissey v. Procter & Gamble). However, if such works contain some copyrightable elements — e.g. a paragraph describing the Yellow Pages, or random designs on the blank forms — then those elements can receive copyright protection.

Sweat of the brow


Sweat of the brow” is an intellectual property law doctrine, chiefly related to copyright law. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or “originality” is not required.

Under a “sweat of the brow” doctrine, the creator of a copyrighted work, even if it is completely unoriginal, is entitled to have his effort and expense protected, and no one else may use such a work without permission, but must instead recreate the work by independent research or effort. The classic example is a telephone directory. In a “sweat of the brow” jurisdiction, such a directory may not be copied, but instead a competitor must independently collect the information to issue a competing directory. The same rule generally applies to databases and lists of facts.

Civil law jurisdictions have traditionally used the similar but not identical concept of droit d’auteur. On a European level, some Guidelines of European Parliament tend to harmonize the protection of Intellectual Property throughout Europe and the doctrine gains more influence. A good example is the Databases Directive 96/9/EC – in this Directive, the member states of the EU are obliged to confer protection on non-original databases, that is on those that embody no creativity, but are a consequence of substantial investment (financial, labour etc.).

Scènes à faire

Scène à faire (French for “scene to be made” or “scene that must be done”; plural: scènes à faire) is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.

For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects. These elements are not protected by copyright, though specific sequences and compositions of them can be.

As another example, in programming, it is often customary to list variables at the beginning of the source code of a program. In some programming languages, it is required to also declare the type of variable at the same time. Depending on the function of a program, certain types of variables are to be expected. If a program deals with files, variable types that deal with files are often listed and declared. As a result, variable declarations are generally not considered protected elements of a program.

After the release of the film Fort Apache, The Bronx, author Thomas Walker filed a lawsuit against one of the production companies, Time-Life Television Films (legal owner of the script), claiming that the producers infringed on his book Fort Apache (New York: Crowell, 1976. ISBN 0690010478). Among other things, Walker, the plaintiff, argued that: “both the book and the film begin with the murder of a black and a white policeman with a handgun at close range; both depict cockfights, drunks, stripped cars, prostitutes and rats; both feature as central characters third- or fourth-generation Irish policemen who live in Queens and frequently drink; both show disgruntled, demoralized police officers and unsuccessful foot chases of fleeing criminals.” But the United States Court of Appeals for the Second Circuit ruled that these are stereo-typical ideas, and that the United States copyright law does not protect concepts or ideas. The court ruling stated: “the book Fort Apache and the film Fort Apache: The Bronx were not substantially similar beyond [the] level of generalized or otherwise nonprotectible ideas, and thus [the] latter did not infringe copyright of [the] former.”

Another significant case in United States law was Ets-Hokin v. Skyy Spirits (2003), in which scenes à faire was upheld as an affirmative defense by the United States Court of Appeals for the Ninth Circuit. The case involved a commercial photographer, Joshua Ets-Hokin, who sued SKYY vodka when another photographer created advertisements with a substantially similar appearance to work he had done for them in the past. It was established that the similarity between his work and the later works of the photographer was largely mandated by the limited range of expression possible; within the constraints of a photo shoot for a commercial product there are only so many ways one may photograph a vodka bottle. In light of this, to establish copyright infringement, the two photos would have been required to be virtually identical. The originality of the later work was established by such minor differences as different shadows and angles.

Idea-expression divide

The idea-expression divide or idea-expression dichotomy limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.

The case of Baker v. Selden was the first U.S. Supreme Court case to fully explain this doctrine, holding that exclusive rights to the “useful art” (in this case bookkeeping) described in a book was only available by patent; the description itself was protectable by copyright.

In Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985), the Supreme Court stated that “copyright’s idea/expression dichotomy ‘strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.'” (internal citation omitted).

Additionally, in Mazer v. Stein, 347 U.S. 201, 217 (1954), the Supreme Court stated “Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself.”

Some of the criticism directed at “intellectual property” is based on the confusion between patents, which may confer proprietary rights in relation to general ideas and concepts per se when construed as methods, and copyrights, which cannot confer such rights.

An adventure novel provides an illustration of the concept. Copyright may subsist in the work as a whole, in the particular story or characters involved, or in any artwork contained in the book, but generally not in the idea or genre of the story. Copyright therefore may not subsist in the idea of a man venturing out on a quest, but may subsist in a particular story which follows that pattern. Similarly, if the methods or processes described in a work are patentable, they may be the subject of various patent claims, which may or may not be broad enough to cover other methods or processes based on the same idea. Arthur C. Clarke, for example, sufficiently described the concept of a communications satellite (a geostationary satellite used as a telecommunications relay) in a 1945 paper that it was not considered patentable in 1954 when it was developed (independently) at Bell Labs.

In the English decision of Donoghue v. Allied Newspapers Limited (1938) Ch 106, the court illustrated the concept by stating that “the person who has clothed the idea in form, whether by means of a picture, a play or a book” owns the copyright. In the Australian decision of Victoria Park Racing and Recreation Grounds Company Limited v. Taylor (1937) 58 CLR 479 at 498, Latham CJ used the analogy of reporting a person’s fall from a bus: the first person to do so could not use the law of copyright to stop other people from announcing this fact.

Some courts have recognized that there are particular ideas that can be expressed intelligibly only in one or a limited number of ways. Therefore even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only. In the United States this is known as the merger doctrine, because the expression is considered to be inextricably merged with the idea. United States courts are divided on whether merger constitutes a defense to infringement or prevents copyrightability in the first place, but it is often pleaded as an affirmative defense to copyright infringement.

Fair use

Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test. The term fair use originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Fair dealing

Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations.

Fair dealing is an enumerated set of possible defences against an action for infringement of an exclusive right of copyright. Unlike the related United States doctrine of fair use, fair dealing cannot apply to any act which does not fall within one of these categories. In practice, common law courts might rule that actions with a commercial character, which might be naïvely assumed to fall into one of these categories, were in fact infringements of copyright as fair dealing is not as flexible a concept as the American concept of fair use.

United States

The parallel concept in United States copyright law is fair use. The term “fair dealing” has a different meaning in the U.S. It is a duty of full disclosure imposed upon corporate officers, fiduciaries, and parties to contracts. In the reported cases, it usually arises in the context of the “implied covenant of good faith and fair dealing,” which underlies the tort cause of action for insurance bad faith. See, e.g., Davis v. Blue Cross of Northern California, 25 Cal. 3d 418 (1979) (health insurer breached covenant by failing to meaningfully advise insureds of arbitration clause).

Berne three-step test

non-commercial

The Berne three-step test is a clause that is included in several international treaties on intellectual property. It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws.

It was first applied to the exclusive right of reproduction by Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works in 1967. Since then, it has been transplanted and extended into the TRIPs Agreement, the WIPO Copyright Treaty, the EU Copyright Directive and the WIPO Performances and Phonograms Treaty.

The test is included in Article 13 of TRIPs. It reads,

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

(The three steps are in bold for emphasis.)

The technical legal reasoning which has been applied to suggest how this wording should be interpreted is arcane (see the references below). To date, only one case (before a WTO dispute settlement panel, involving U.S. copyright exemptions allowing restaurants, bars and shops to play radio and TV broadcasts without paying licensing fees, passed in 1998 as a rider to the Sonny Bono Copyright Term Extension Act) has actually required an interpretation of the test.

The three-step test may prove to be extremely important if any nations attempt to reduce the scope of copyright law, because unless the WTO decides that their modifications comply with the test, such states are likely to face trade sanctions. Exceptions to copyright protection are required to be clearly defined and narrow in scope and reach. For instance, the three-step test was invoked as a justification for refusing certain exceptions to copyright wished for by members of the French parliament during the examination of the controversial DADVSI copyright bill.

TRIPs Article 30, covering limitations and exemptions to patent law, is also derived from the three-step test.

The ‘three-step’ test can also be found in Article 10 of the WIPO Copyright Treaty, Article 6(3) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, Article 6(3) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases and Article 5(5) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

Right to quote

Right to quote is a legal concept in continental Europe, which some people consider similar to fair use. It allows for quoting excerpts of copyrighted works, as long as the cited paragraphs are within a reasonable limit (varying from country to country), clearly marked as quotations and fully referenced, and if the resulting new work is not just a collection of quotations, but constitutes a fully original work in itself. In some countries the intended use of the work (educational, scientific, parodist, etc.) may also be a factor determining the scope of this right.

Public domain

Works are in the public domain if they are not covered by intellectual property rights at all, if the intellectual property rights have expired, and/or if the intellectual property rights are forfeited. Examples include the English language, the formulae of Newtonian physics, the works of Shakespeare and Beethoven, and the patents on powered flight.

In a general context public domain may refer to ideas, information, and works that are “publicly available”, but in the context of intellectual property law, which includes copyright, patents, and trademarks, public domain refers to works, ideas, and information which are intangible to private ownership and/or which are available for use by members of the public.

Works not covered by copyright law

The underlying idea that is expressed or manifested in the creation of a work generally cannot be the subject of copyright law (see idea-expression divide). Mathematical formulae will therefore generally form part of the public domain, to the extent that their expression in the form of software is not covered by copyright; however, algorithms can be the subject of a software patent in some jurisdictions.

Works created before the existence of copyright and patent laws also form part of the public domain. For example, the Bible and the inventions of Archimedes are in the public domain, but copyright may exist in translations or new formulations of these works.

Expiration of copyright

The expiration of a copyright is more complex than that of a patent. Historically the United States has specified terms of a number of years following creation or publication; this number has been increased several times. Most other countries specify terms of a number of years following the death of the last surviving creator; this number varies from one country to another (50 years and 70 years are the most common), and has also been increased in many of them. See List of countries’ copyright length. Legal traditions differ on whether a work in the public domain can have its copyright restored. Term extensions by the U.S. and Australia generally have not removed works from the public domain, but rather delayed the addition of works to it. By contrast, a European Union directive harmonizing the term of copyright protection was applied retroactively, restoring and extending the terms of copyright on material previously in the public domain.

Government work

Works of the United States Government and various other governments are excluded from copyright law and may therefore be considered to be in the public domain in their respective countries. In the United States, when copyrighted material is enacted into the law, it enters the public domain. Thus, the building codes, when enacted, are in the public domain. They may also be in the public domain in other countries as well. “It is axiomatic that material in the public domain is not protected by copyright, even when incorporated into a copyrighted work.”

Definition

The definition of public domain is not uniform and may not only include completed works, but also permitted uses of works still covered by intellectual property rights, such as for example the right to excerpt short quotations in a review. This definition divides areas of private property from areas of the public domain. For example, Mozart‘s music is public property, and Britney Spears‘ music is private property.

Orphan works

An orphan work is a copyrighted work for which the copyright owner cannot be contacted.

Types of orphan works

In some cases the name of the creator or copyright owner of an orphan work may be known but other than the name no information can be established. Conversely, the work is not orphaned when copyright owners protect their identity but provides means to contact them. Reasons for a work to be orphan include that the copyright owner is unaware of their ownership or that the copyright owner has died or gone out of business (if a company) and it is not possible to establish to whom ownership of the copyright has passed.

Examples of orphan works

Despite a recognition that a vast number of orphan works exist in the collections of libraries, archives and museums precise figures are not readily available. In April 2009 a study estimated there to be around 25 million orphan works in the collections of public sector organisations in the UK. Examples of orphan works include photographs which do not note the photographer, such as photos from scientific expeditions and historical images, old folk music recordings, little known novels and other literature.

Impact of orphan work

Orphan works are not available for use by filmmakers, archivists, writers, musicians, and broadcasters. Because the copyright owner can not be identified and located, historical and cultural records such as period film footage, photographs, and sound recordings can not be incorporated in contemporary works. Public libraries, educational institutions and museums, who digitise old manuscripts, books, sound recordings and film, may choose to not digitise orphan works, or make orphan works available to the public, for fear that a re-appearing copyright owner may sue them for damages.

Causes

According to Neil Netanel the increase in orphan works is the result of two factors: (1) that copyright terms have been lengthened, and (2) that copyright is automatically conferred without registration or renewal. Currently only a fraction of old copyrighted works is available to the public. Netanel argues that copyright owners have “no incentive to maintain a work in circulation” or otherwise make their out-of-print content available unless they can hope to earn more money doing so than by producing new works or engaging in more lucrative activities.

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