Although, under copyright law, the first owner of a work is usually the author, in practice most works are owned by a third party specializing in commercial exploitation, such as a publisher or producer.
(Kretschmer et al. 2009 p.65)
Copyright law serves to give power to the author of a work by facilitating agreements between themselves and a third party capable of exploiting these rights. This gives power to both parties – without the ‘Intellectual Property’ of the author, there is nothing to exploit, and without the means of production of a larger company, there is no means of communicating the ideas to a large audience.
Copyright Law is defined in the UK by the “Copyright, Designs and Patent Act 1988” (CDPA) and in the US by “The Copyright Act of 1976” (USC). Both protect a creative work once it has been recorded (17 U.S.C, 2009, §102(a); Great Britain, 1988, para.3(2)). Both also convey copyright to the recording of the work – for example, once a song is recorded a separate copyright exists on the mechanical recording of the song as well as on the song itself.
Not only can copyright be transferred to new owners (17 U.S.C, 2009, §201; Great Britain, 1988, para.11(2)), but it can also mean that a creation by an employee will belong to the employer (Great Britain 1988 para.11.2). Ownership of a copyright can reside with anyone or any number of people.
The purpose of copyright law is to provide the framework for contracts to exist. As the European Parliament has recognized (2001 para.4), by increasing legal certainty of copyright across the European Market, a higher level of protection of Copyright can be achieved – leading to increased investment. Creative works by their very nature can be a risky investment, and current law seeks to minimise this risk.
A model of copyright exploitation has emerged over the course of the 20th Century. An artist creates a work and sells the rights to exploit to a publisher for a fee via a contract. This publisher takes a risk and uses resources to reproduce copies and distribute these physical copies across a market. Once a member of the public has purchased a copy, they have the right to experience that work how they see fit – as long as they do not do anything that contravenes the legal copyright.
Copyright itself is not an incentive mechanism, but (assuming that it is enforced) it does allow an incentive mechanism to operate, namely contracts.
(Kretschmer et al. 2009 p.16).
Rights can be assigned in writing to another party in whole or part, as exclusive rights or just as a limited duration license to reproduce. Lawyers generate contractual agreements depending on the circumstances, meaning no two copyright agreements are the same (Kretschmer et al. 2009 pp.24, 36, 45). The Law then protects the publisher and distributer in case someone else tries to publish or distribute the same work. For a large portion of the 20th Century, due to the inherent cost of duplication and production, this was unlikely to be a major problem.
As John McCain pointed out in 2003, “5 major companies control 85% of our media sources” (Lessig 2004 p.162). The top 10% of Music creators receive 80% of total income (Kretschmer et al. 2009 p.3). The current industry model has been very successful in obtaining rights and exploiting them.
Digital private copying is likely to be more widespread and have a greater economic impact.
(THE EUROPEAN PARLIAMENT AND COUNCIL 2001 para.38)
U.S. law was amended by “The Digital Millennium Copyright Act of 1998” (DMCA). European Union Directive 2001/29/EC on the Harmonization of Copyright came into being under similar pressure and was enacted in the UK as “Copyright and Related Rights Regulations 2003”(CRRR). The root of these changes, as Lessig (2004 p.157) explains, was lobbying by various Production Studios. Digital technology makes it possible to control how often someone listens to a piece of music or watches a TV Show. It would be impossible to enforce reading a physical book only once, but this is possible and has been applied to eBooks (Lessig 2004 p.144).
Digital Rights Management (DRM) is a technological limitation applied to digital files, which can prevent legitimate use in the process of preventing Copyright Infringement. Some forms of DRM on electronic files limit the transfer of that file, whether for legitimate or illegitimate purposes. The amendments to copyright law (DMCA, CRRR) specifically added rules against bypassing DRM, as well as anything designed to help bypass DRM (17 U.S.C 2009). This means that it is illegal to use a file in a legitimate way if the DRM is preventing you, and illegal to tell anyone how to break it. This is at odds with the spirit of copyright law.
Patry (2009 p.xvii) explains that copyright is a legal right, rather than an inherent right. Authors should not have absolute control over their work, as all work adds to the public knowledge and culture. Certain rights are held back to promote education and creative exchange, such as the limited duration of these rights and the right to fair use.