Copyright explained

CopyrightCopyright gives creators the exclusive right to usage and distribution of their creations. There’s a lot of myth and misunderstanding about it. Time to demystify some of that.

First a small disclaimer: I am not a lawyer. I’m barely a writer, let alone an expert on copyright law. I do have experience with copyright both as a writer, and as a software engineer. How much that’s worth, I’ll leave up to you.

Copyright basics

Copyright is a legal right of a creator to be ‘in charge’ of their own work. Each country defines this legal concept in their own way. There are several international treaties about it, but each country has their own implementation of those, and your mileage per country may vary. Since I’m Dutch, I’m most familiar with the Dutch laws and the US laws, because the US is important in software.

The act of creation automatically grants copyright on a work in most countries. You write a book and its automatically copyrighted. Create a movie, same thing. Record a song and copyright applies. However, there are some caveats.

Copyright caveats

First off, automatically having copyright doesn’t mean its automatically enforceable. You’re going to have to prove you created the work, which can be tricky. One solution is to register your work. This is not something you have to do right away. For books, for example, the publisher often handles this after you sell them a book.

Secondly, a derivative work might or might not be considered a copy. If you lampoon a book or review a movie, that is usually protected under fair use (in the US and the EU at least). Again, enforcement and legality are two very different things.

Thirdly, copyright applies to a creation as a whole. Elements of a copyrighted work are not automatically protected. This makes for a large gray area. If you write a book about a boy who is whisked away to a secret school for magic training,thenĀ  you won’t be sued for violating Harry Potter’s copyright.
If you name the main character Harry Potter, though, then you might be in trouble. Although, I just used that name as well, but that is considered fair use. Fan-fiction is also usually left alone. The key is in how transformative the new work is, if the copier is making money, and whether or not it falls under fair use. Harry Potter fan-fiction isn’t making the creators money, or costing JK Rowling, rather the opposite. Yet, were you to create a high-quality feature film based on the Star Trek universe, you’re clearly making money on the coat-tails of a popular copyrighted work.

Patents, Trademarks and Designs

A lot of people confuse copyright, patents, trademarks, and designs. There is some overlap, but these are mostly separate concepts in the intellectual property family.

Patents are about registering a technological innovation and then getting exclusive rights to that technology for a period of time. It differs from copyright in that it isn’t automatic, it’s not about a specific work but about a technological innovation, and it has no fair-use clauses. Drugs – the medicinal kind – are usually patented, for example, which is why drug companies can charge outrageous amounts for years and nobody is allowed to release a version of a drug at cost.
Note that patents are only allowed for non-obvious innovations. You can’t patent existing ideas. That is why a lot of patent litigation deals with ‘prior art’: instances of the innovation that predate a patent request of the innovation.

Trademarks are certain logo’s and names that you register at the trademark office. ‘Apple’ is a trademark, as is ‘Barnes and Noble’, and many others. Trademarks are about branding and distinguishing one party from another. Copying the Apple logo in a different color and slapping it onto your company will not get you sued for copyright, but it will get you sued for trademark infringement.

Finally, there’s designs. When you create a mobile phone that looks exactly like an iPhone, you’ll be infringing on a design. It doesn’t matter if you use your own trademark. This is, like trademarks, about branding and avoiding confusion in consumers. The difference with trademarks is that it’s not about a term or logo, but about the way a product produced by various producers is designed.

The elephant in the room

Of course, the elephant in the room is the large-scale violation of copyright by consumers, and the draconian reactions by various copyright organizations like the MPAA and the Dutch Stichting Brein.

When books were still paper-only, videos only on TV, and music on vinyl, copyright was clear and easy to enforce. Nowadays, you can stream everything, from anywhere in the world, and copy books, music, and video in the blink of an eye. Copyright has always been a legal construct, but it is now a legal construct that is hard to police. Worse, effective enforcement requires massive privacy violations.

That does not mean I think copyright should be abolished. Creators of creative works – me included – are entitled to be paid for their work. It’s bad enough as it is that bank CEOs gambling away people’s pensions make thousands of times as much money as a writer or a musician. Of course, another way of monetary compensation is also fine, but declaring copyright dead is saying that creative arts have no value. And I’m very much opposed to that.

The problem with the current system, in my opinion, is that copyright is not used to allow creators to be compensated for their work. It’s used by distributors to ransom exclusive content through their own distribution channels. You want to watch House of Cards? You have to have Netflix. You want to see Game of Thrones? You have to have HBO. And so on and so forth.

Distributors should compete on their own merits, not hide behind copyright law. Plus, this is damaging to the people that copyright is for: the creators themselves.

Conclusion

To summarize, copyright is a way to protect creators. It’s automatic and it protects a certain work, not an idea. As long as it’s used that way, and not to help the distribution business, I’m fine with it.

Author: Martin Stellinga

I'm a science fiction and fantasy writer from the Netherlands

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