The Scope of Copyright

Once a person has established a copyright, there are a number of rights that he can exercise. In a manner similar to patents, these rights are "exclusive" in that they permit the copyright holder to exclude others from engaging in certain activities. Probably the most fundamental right granted to a copyright holder is the right to exclude others from making reproductions of the work. In addition, though, the copyright holder may exclude others from preparing derivative works and from distributing copies of the work. Depending on the type of work, there are also provisions for excluding others from public performances or displays of the work.31

Also similar to patent rights is the fact that the rights granted to a copyright holder are of limited duration. But in the case of copyrights, the term is considerably longer: in the United States, the copyright in a work expires only seventy years after the death of the creator. Works created by young individuals can easily persist for well over a hundred years.

Someone's copyright is infringed when one of these restricted activities is performed without the permission of the copyright owner. The potential penalties are varied, ranging from the payment of modest financial damages to seizure of the infringing work and potential imprisonment under criminal statutes—as anyone who has ever rented or purchased a movie has duly been warned.

The breadth of possible responses to copyright infringement is entirely appropriate. It is a reflection of the fact that lines are not always easy to draw when assessing creative works. If something is an exact copy of a creative work, it is almost certainly a knockoff and its theft should be punished appropriately. But in most cases, copies are not exact. Instead, there are a variety of ways in which some new work is similar to some preexisting work and a variety of ways in which they differ. When has the later work merely been "inspired" by the earlier work but includes its own creative content, and when has the creative content been taken wholesale from the earlier work with the addition of superficial cosmetic changes to make it "different"? How are the meaningful creative and noncreative portions of works identified, and who decides where to draw these lines?

These are not easy questions. The law provides a form of compromise, though, by explicitly authorizing the "fair use" of copyrighted material. There are four factors that are to be assessed in deciding whether a particular use is "fair" (Figure I.16).32 This structure does not remove the need to exercise judgment when considering copyright issues, but it does provide a structural framework within which that judgment should operate.

Purpose and Character of the Use

Educational Commercial

Nonprofit Work Transformed

Nature of the Copyrighted Work

Creative Works Factual Works

Nonprinted Works Printed Works

Nature of the Copyrighted Work

Creative Works Factual Works

Nonprinted Works Printed Works

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