Copyright basics

A short introduction to copyright laws

What is copyright? Why should I care?

Copyright is a monopoly granted by the law over a work of authorship, for a limited time: the rightsholder has the exclusive rights to perform and authorize some actions on the work.

Whenever software is created, copyright laws come into play, one way or another (with very very few exceptions). As a consequence, in order to correctly deal with software (be it free or proprietary), a basic knowledge of copyright laws is needed. Creating or contributing to free software requires some more knowledge. Assessing the freeness of a piece of software involves even more understanding of copyright concepts.

Differences across countries

Copyright laws vary across jurisdictions, but some harmonization has been established by a number of international treaties. The most important treaty on copyright is probably the Berne Convention: it applies in almost all jurisdictions, establishing mutual recognition of copyright among signatory countries and constraints that must be complied with by the specific copyright law of each jurisdiction. As a consequence, although the details may significantly vary across different jurisdictions, the basic principles of copyright laws are fairly similar in almost all countries.

The aim of this essay is to briefly describe the basic principles of copyright laws, without exploring all the specifics that are studied by lawyers and law scholars.

For all the interesting (but lengthy) details, the reader is referred to the above mentioned Berne Convention and the copyright laws of each country, such as, for instance, the U.S. copyright law, the U.K. Copyright, Designs and Patents Act, the Italian law on authors' right, ...

Subject matter of copyright

Copyright applies to a number of categories of works of authorship: these are, in general, literary and scientific writings, musical and cinematographic works, theatrical and choreographic works, works of drawing, painting, architecture, sculpture, photographic works. Computer programs are treated as literary works.

In other words, almost all software works are covered by copyright, along with some other material works (such as sculptures, architectural works, ...). Some special categories of works may be excluded from copyright coverage, but this varies across jurisdictions.

It should be noted that copyright applies to the expression of a work, not to the ideas behind it. In some jurisdictions this is explicitly stated by the copyright law.

Modified versions of a work (obtained through a creative process) are called derivative works or adaptations: the modifications are covered by copyright, without prejudice to the copyright in the original work.

Collections of works are considered intellectual creations, as long as the selection and arrangement of contents is creative. Such collections are covered by copyright, without prejudice to the copyright in each of the collected works.

Rightsholder

The person who enjoys the exclusive rights for a work is called rightsholder or copyright owner.

Initially, this person is the author of the work, but the (economic) exclusive rights may be later transferred to another person (gratuitously or for a fee).

The Berne Convention establishes that no formality is required in order to enjoy the exclusive rights for a work: the creation of the work itself is enough.

In some cases the (economic) exclusive rights are automatically owned by someone other than the author of a work. This may be the case of the so called works made for hire, which are works created under contract or by an employee within the scope of his/her employment: the copyright owner of these works is not the author, but the employer.

Copyright notices

A copyright notice is a short text included in a work that describes the claim of copyright ownership for the work itself. It includes the copyright symbol © and/or the word "Copyright", followed by the year of first publication and the name of the copyright owner. Derivative works may include multiple copyright notices, each corresponding to one published version of the work (copyright notices which only differ for the year are usually conflated together with a list of years).

The presence of an appropriate copyright notice in a work is a formality that used to be required in the past by the copyright laws of some countries (most notably the USA), in order to enjoy the exclusive rights for the work itself. As explained above, the Berne Convention establishes that no formality can be required: as a consequence, copyright notices are now not (or no longer) required in any Berne Convention signatory country.

Although optional, copyright notices are still often included in works of authorship as a useful means to clarify who is the copyright owner and when the work has been published.

Copyright registration

Another formality that is not (or no longer) required in order to enjoy the exclusive rights is copyright registration. Obtaining registration of a copyright claim from a national copyright office is now optional, although it may give some advantages in case of lawsuits.

Exclusive rights

The rightsholder has the exclusive rights to do and to authorize any of the following actions:

to reproduce the work in copies
to distribute copies of the work to other people
to create derivative works based on the work
to perform or display or broadcast the work publicly

These exclusive rights are called economic rights.

Moral rights

In addition to the economic rights, the author of a work also has some moral rights.

Moral rights are independent of the economic rights and are enjoyed by the author, even after he/she has transferred the economic rights to another person. Moral rights cannot be transferred to anyone else: they are inalienable rights.

Moral rights vary across jurisdictions, but the most common ones are: the right to claim authorship of the work and the right to object to any derogatory mutilation of the work which would harm the author's reputation.

Duration of copyright

Economic rights do not last forever: they expire after a certain time. When this happens, the work is no longer covered by copyright and is (usually) said to enter the public domain.

The duration of copyright significantly varies across jurisdictions, and may be different for some special categories of works. However, in a good number of countries and for most works, the economic rights expire 70 or 50 years after the death of the author.

Limitations on exclusive rights

There are some actions that may always be performed by anyone on a work, without the need for any permission from the rightsholder.

These actions are permitted by the copyright law through specific limitations on the exclusive rights enjoyed by the rightsholder. Depending on the jurisdiction, this is called fair use, or fair dealing, or ...

One permitted action is making short quotations from a published work, provided that the source and the author of the work are clearly indicated. There may be other permitted actions, but they significantly vary across jurisdictions.

Other laws

Besides copyright, there are other laws that might need to be taken into account, when dealing with software.

For instance, patents may apply to software works in some jurisdictions. Trademarks may also come into play. Moreover, there are jurisdictions where some database rights and/or semiconductor mask rights are established by law.

However, these legal concepts, although sometimes part of the same law that defines copyright, are beyond the scope of this essay.

Francesco Poli

This work is free software: you can redistribute it and/or modify it under the terms of the GNU General Public License, version 2. It comes with absolutely no warranty. See the license text for details.