2. What Are Intellectual Property Rights?
A. Intellectual Property Rights in the United States (continued)
Trademark confers a protection for words, short phrases, names, symbols, and other devices that identify and distinguish goods and services. It signals a "flag of recognition in the marketplace . . . a source of a product or service, an indication of quality, or an association with a person, company or institution."4 McDonald’s™, Coca Cola™, and Disney™ all have trademarks on their names and their distinctive corporate logos. A patent is a form of protection for an invention that excludes others from making, using, or selling the invention without permission. For a patent to be granted, the invention must be new, not obvious, and useful. Patents have been granted for items as variable as machines, software features, and genetically engineered mice. Copyright is a protection for "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works fixed in a tangible medium of expression. Ideas, concepts, procedures, and processes cannot be copyrighted until they are converted from a mental construct to a physical form. In other words, copyright vests in the form that conveys a thought, not in the thought conveyed.5
Because copyright is the intellectual property regime that cultural organizations most frequently encounter, it is the regime referred to in the remainder of this report. Trademark and patent address a different set of intellectual property rights, and merit separate and specialized consideration outside the scope of this report.
The primary objective of copyright in the United States is to "promote the progress of Science and the Useful Arts."6 However, current debates and challenges increasingly emphasize economic aspects, which obscure the Enlightenment values from which copyright emerged in the United States more than two hundred years ago. These values fostered the nurturing and distributing of ideas that would serve as the impetus for new creative pursuits. Copyright was perceived as a balance of rights between creators’ needs for an economic return on their efforts and society’s need for a free exchange of ideas to ensure the production of more creative efforts. The economic aspect was simply an incentive to promote continued creative works, and was envisioned as only one part of the equation.
Today, much of the dialogue about copyright in the United States emphasizes the economic rights of creators, recognizing that they will have little incentive to create if they will not be remunerated for their work. This peculiarly American view of copyright has been termed a "cultural bargain" based on a "conviction that encouraging individual creativity by personal gain is the best way to advance the public welfare."7 Thus creators are given a finite monopoly on their works as an incentive or encouragement to produce and make available more creative works that can be used for the public good. In other countries, the underlying emphasis of the legal code for copyright is the natural or "moral rights" of the creator–those rights that guard the integrity and association of works and their creators more than their economic interests.
Under current U.S. copyright law, a creator of a work is given exclusive rights, for a limited period of time,8 to reproduce the work in any form, create derivative works based on the work, distribute copies of the work, perform the work, or display the work in public. Copyright is endowed from the moment a work exists in a fixed or tangible form of expression (e.g., in a publication, work of art, a performance, a recording, etc.), whether the creator registers it with the U.S. Copyright Office or not.
Copyright is granted to the creator of a work; it is a right that exists separately from the work itself. Thus ownership of a work does not include copyright, unless the creator has explicitly transferred the copyright, in writing, with the transfer of ownership.9 This distinction is important, particularly for cultural and educational institutions. The role an institution can play in managing the intellectual property in its care is determined by whether it owns the work, owns the copyright to the work, or serves as custodian of works whose copyright and ownership belong to others.
Some of the rights associated with ownership of intellectual property include the right to sell, transfer, or dispose of it, as well as the right to display it where it is located. Those who own the copyright on intellectual property have the right to reproduce it, to distribute it to the public, to perform it publicly, to display it publicly, and to create derivative works from it. Institutions that own intellectual property, but do not own its copyright, can assert their ownership rights but cannot assert the rights of copyright ownership. Conversely, institutions that own copyright to intellectual property, but do not own the intellectual property itself, can assert the rights of copyright but not the rights of ownership. Those institutions that serve as custodians for intellectual property whose copyright and ownership belong to others can assert neither set of rights. These latter institutions are highly constrained in how they use and manage the works in their care, and can do little more than store and safeguard the intellectual property unless they seek permission from owners and/or copyright owners.
For the vast majority of cultural heritage materials, copyright resides with the creators of works or their estates, has never existed, or has expired and the works are in the public domain. With works in the public domain, owners or caretakers cannot assert copyright ownership, but they may have access policies that effectively restrict or hinder the use of the materials in their care. Museums, for example, often prohibit photography in their galleries, or limit research access to bona fide scholars only. As owners or legal caretakers of these materials, they are within their rights to do so, unless other obligations (such as federal funding, donor conditions, etc.) prohibit them.
U.S. copyright law has recently been expanded to include rights of integrity and rights of attribution for certain works of visual art. The right of attribution allows artists to claim authorship of their works and to have their names used in conjunction with a display. It also allows them to prevent the use of their names on a work that was not created by them, or to have their names removed from their work if it has been mutilated or distorted. The right of artistic integrity prevents any intentional distortion or modification of a work that is prejudicial to the honor or reputation of the artist.10
Several exemptions to copyright exist under the U.S. legal code. The most well known of these is the doctrine of "fair use." This exemption allows for the use of copyrighted materials, without permission of the creator or copyright owner, in a limited number of contexts and for certain purposes, including "criticism, commentary, news reporting, teaching. . . , scholarship or research. . . ."11 In determining whether a use falls within this exemption, a series of criteria, popularly called the "four factors," identified in copyright law are to be applied when determining whether a particular use is a fair use. These factors, and a brief explanation of the issues embedded within them, are:
• The purpose or
character of the use
What is the work being used for, and who is using it? Teaching and research
uses are more likely to be considered fair use than is a commercial endeavor.
Works that are "transformed" in their use rather than merely
reproduced are also more likely to be favored as fair use.
• The nature of the copyrighted
work
What forms or attributes are unique to the work, and how does this uniqueness
come into play as it is used? Is the work original, a compilation, or
a derivative work? Factual compilations are more likely be seen as fair
use than are fictional works.
• The amount and substantiality
of the portion of the work used in relation to the copyrighted work as
a whole
How much of the work is being used, and is this portion the most substantive
segment of the work? Is a single chapter from a book being used, or the
entire book? If a chapter, is it the "heart" of the entire book?
Fair use is more likely to be accorded for modest portions that are used
rather than complete or nearly complete works. This interpretation is
problematic for images, which by their nature do not lend themselves to
be used in "portions" or "segments."
• The effect of the use
on the market for the work
Will the use interfere with the present or potential ability of the creator
or copyright owner to make a living from the work? This factor requires
some predictions or assumptions about the potential market for a work
or the economic value of the work.
Fair use is a highly interpretive concept, and the simplistic description outlined here is intended only as a summary. Actual rulings are much more complex.12 The scope of fair use has been argued both broadly and narrowly by various constituencies because the doctrine, although codified in the law, is not specifically defined. Thus proposed instances of fair use always require a case-by-case analysis.
The fair use exemption is generating resurgent controversy as the impact of copyright in the digital world is debated anew. In 1994, the Conference on Fair Use (CONFU) was created as part of the Clinton Administration’s efforts to identify and debate intellectual property rights issues in the digital arena.13 Before it concluded, CONFU issued a series of guidelines on fair use that were highly debated, and that many U.S. cultural and educational communities refused to endorse.14 Despite its failure to result in agreed-upon guidelines for fair use, CONFU did provide the catalyst for a continuing series of discussions and examinations that have increased awareness of fair use issues among the cultural and educational communities.15