This is the third post in a series about the Copyright Wars (previous posts here and here), which I’ve written given the growing interest regarding copyright prompted by the rise of generative AI. This is a rather basic list of things that I see people getting wrong all the time, and is in part inspired by similar guides and lists that have existed through the ages (I still remember fondly ‘10 big myths about copyright explained‘). This is not intended to be a comprehensive list, but will go through some of the most common errors and misconceptions.
Copyright basics
Copyright is a limited property right, this means that it grants the owner certain exclusive rights over their creative work, but only for a specific period of time and with several limitations. The core subject matter of copyright is literary, musical, artistic and dramatic works, with many other types covered under categories and subcategories, such as film, sound recordings, broadcasts, typographical arrangements, photographs, etc. Whether this list is exhaustive or not depends on the jurisdiction, and has become an interesting point of discussion given recent case law, particularly in Europe. The exclusive rights of the author vary as well, but the main ones are reproduction, adaptation, distribution, performance, and communication to the public.
Copyright is limited in time, the standard under Berne is that it lasts for the lifetime of the author plus 50 years, but most countries now have extended it to 70 years. This duration has a lot of variation depending on the type of work. It’s also limited in the sense that all rights contain a number of exceptions and limitations, known as fair use or fair dealing. More on that later.
Another important basic concept is that there are two types of rights: economic rights and moral rights. The exclusive economic rights are described above (reproduction, distribution, etc.), while moral rights of the author exist to protect the personality of the author, such as the right to attribution and the right to prevent distortion or mutilation of the work. Moral rights are often inalienable and linked to the creator’s reputation. Economic rights, on the other hand, allow the creator to financially benefit from their work by controlling how it’s used, distributed, sold, or licensed. Economic rights can usually be transferred or sold to others, while moral rights generally remain with the creator.
Legal systems
Another important concept that can help people to understand copyright better is that there are two main legal traditions in the world: Civil Law and Common Law systems, with a few countries that have mixed elements from both.
These systems apply to almost all aspects of law, but they’re also important when it comes to copyright. Civil Law, prevalent in continental Europe, emphasises moral rights and views copyright as a natural right. It provides stronger protection for creators and their personal connection to their works. Common Law, found in Anglo-American jurisdictions, focuses more on the economic aspects of copyright and treats it as a limited right granted by statute. These philosophical differences lead to variations in copyright duration, transfer of rights, and the balance between rights across jurisdictions.
Infringement
Copyright infringement occurs when someone uses a copyright work without permission or legal justification, violating the exclusive rights of the author. This can include copying, distributing, displaying, or performing the work, or creating derivative works, without the copyright holder’s consent. Infringement may happen even if the work is not used for profit, and it applies to various forms of expression, including written, visual, audio, and digital content.
While infringement itself is easy to understand, it is relevant to contrast it with two words that are often used interchangeably in its place: plagiarism and theft. Quite simply, theft is a legal concept that applies to tangible property, and it is a criminal offence. Copyright protects intangible works, and so we use the term copyright infringement, which is also mostly treated as a civil offence (with exceptions). This happens because copyright works are non-rivalrous, that is, one person’s use or consumption of a work does not diminish another person’s ability to use or enjoy the same work. If you have an apple and I eat your apple, I’m depriving you of the enjoyment of the apple, and it is theft. If you have a song and I make a copy, you still have the song.
Plagiarism is also a different concept; it is an ethical violation, where someone uses another person’s work or ideas without giving proper credit, regardless of whether the work is copyrighted. This is because ideas are often not subject to copyright protection, but if you take someone’s idea you would be plagiarising. There can be an interface; an act of plagiarism could also be copyright infringement, but for the most part these are different.
Exceptions and limitations
Copyright is not an absolute right like ownership of physical property. It balances the creator’s control over their work with the public’s interest in accessing and using creative content. This balancing act is because of other potentially competing rights, such as freedom of speech, privacy, education, etc.
The balance is performed by a system of exceptions that limit the application of copyright law in specific situations. These exception vary from one jurisdiction to another, but all of them have to comply with what is known as the three-step test:
- The exception must be limited to special cases.
- It should not conflict with the normal exploitation of the work.
- It must not unreasonably prejudice the legitimate interests of the rights holder.
Whether an exception fulfils this test has to be determined by national courts, and the quashing of an exception tends to be rare (see this case).
There are two systems of exceptions, open and closed. An open-ended system is fair use in the US, which provides a set of principles that are to be examined by the courts. Most other countries follow a closed system of exceptions called fair dealing, this is an exhaustive list of exceptions, and new exceptions have to be adopted by law.
Sources
The matter of the hierarchy of legal authorities and sources of law can be useful when looking at new legal developments in the area. There’s a lot of theory on the sources and hierarchy of law, with Kelsen’s pyramid of norms always being a favourite of mine. The traditional pyramid places the constitution at the top, followed by international treaties, laws, ordinances, decrees, case law, administrative acts, and academic commentary (doctrine). Of course, the order of sources changes from one jurisdiction to the other, for example as the UK has no written constitution the order of norms is the law, statutory instruments, case law, parliamentary conventions, customs, academic commentary, and expert opinions. EU member states also have to consider the sources of European law as well.
The hierarchy of laws changes as well, for the purpose of copyright usually this means laws in the shape of enacted legislation at the top, with a number of administrative laws and other such instruments underneath. What happens if there is a gap in the law, or a norm is not clear, also depends, but there are a number of other secondary sources that can be used to interpret the law, this includes recitals, legislative discussion, official reports and white papers. In principle courts can’t create new law, but in Common Law systems judges tend to have a bit more leeway, and they can also sometimes look at opinions from other Common Law systems for guidance (foreign decisions are a secondary source of law).
Common Law systems place higher importance on case law, and it’s relevant to stress the importance of the hierarchy of courts. Lower courts tend to decide things in first instance, and as matters are appealed these tend to go up the hierarchy, all the way to constitutional courts and the like. There’s no such thing as an International Copyright Court, but in EU countries national courts can refer questions of law to the Court of Justice of the European Union, which makes a judgement and sends it back to the national court. Some countries with federal systems may also have different rules between state and federal law. Another useful concept here is that courts are only bound by decisions of the upper courts in their own tree, so it is possible for different states (or federal districts in the US) to have different case law in similar areas of law. A final important concept when citing law is to look at whether new decisions by a higher court have changed the law in a specific area. An important case in the past may no longer be good law, but it may still present interest for historians and researchers.
Jurisdiction
One of the most difficult concepts when dealing with international issues is that of jurisdiction and applicable law. With the Internet in particular, we re often consuming copyright works from various countries, so knowing where to enforce rights is vital.
IP law in general is strictly national, quoting Prof Raquel Xalabarder, “there is no “international” copyright law, just numerous domestic laws applied within the boundaries of their respective domestic territories”, a point that is shared by Prof Wadlow in an often cited work. Sure, there are a myriad of international treaties and conventions dealing with various aspects such as recognition of foreign works, as well as bilateral, regional, and worldwide treaties, but copyright remains territorial in nature. It is important to remember here the hierarchy of laws cited above, some international treaties are a source of law in some countries, but that usually means self-executing treaties. In copyright most treaties have to be read as national law if they have been incorporated into national legislation, which many important treaties such as Berne or the WIPO Copyright Treaties have.
So the matter of where to sue, and which law applies, becomes extremely important. There are general two types of rules on this, national copyright laws, and international private law rules. When it comes to choice of law, the Berne Convention is useful, as it offers some guidance with the principle of national treatment, foreign nationals from signatory countries receive the same treatment as nationals, and the applicable law may be the law of the country where protection is claimed (lex fori protectionis). This approach is compatible with other private international norms such as Rome II. It’s not the intention of this blog post to provide a lengthy discussion of this, there’s a wealth of literature on the subject, but for the most part lex protectionis prevails.
Jurisdiction can be a bit trickier as Berne doesn’t contain a jurisdiction provision. There are lots of different principles at stake, but for the most part copyright holders can sue in their own country, or in the country where the infringement took place (lex loci delicti), this depending on a variety of factors, and it is very fact-dependent. For a while it was discussed that server location would be important for internet cases, but this has almost been abandoned.
This is another extremely complex area, so I won’t go into much detail, but suffice it to say for the purpose of copyright that inevitably the US tends to be a good location in which to make an infringement claim, mostly because of the potential size of damages, as well as it being the country of domicile of large corporations that tend to own large amounts of content. Something else to be consider is the practical issue of suing people outside of your jurisdiction, which can be quite expensive. For the most part, smaller players will try to sue in their own jurisdiction, while larger owners have resources to sue anywhere an infringement has taken place.
Concluding
This is an extremely basic introduction of some of the most basic concepts that are often misunderstood when talking about copyright by members of the public. Of course, there’s much more detail here, and I’m merely generalising to the point of being insulting. I hope that readers will find this short guide useful. Needless to say, this is not legal advice, otherwise it would have an invoice attached.
Now I need to consider if the llama in the picture is the dummy, which would also make me a dummy. My head hurts.
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