Archive for December 2009
Acknowledging Copyright’s Complexity
Core Copyright’s mission is to simplify U.S. copyright law and policy in a reliable, unbiased, and knowledgeable way so that anyone who is affected by the law can understand what it means. While we take our mission seriously, we realize how difficult it will be to fulfill it consistently because of how complicated copyright law is.
I am aware there exists a recurring (and we think, reasonable) argument among some copyright scholars that contends one big reason copyright law has become so problematic is because it never was intended to be widely applicable to citizens. Instead, the argument continues, copyright was developed to govern commercial transactions that involve creative and fixed works; historically, it never (and never was supposed to) govern how individuals relate with or use those same creative and fixed works.
I generally attribute this argument to Jessica Litman, whom I have heard make this argument in speeches and in several of her writings, including her book Digital Copyright. More recently, Jacqui Lipton, a law professor at Case Western, captured the essence of Litman’s argument in rhetorical question she posed in a recent post on Madisonian.net:
Is there any point in having a law that potentially affects things we do everyday that no one understands?
What Is Copyright?
This question seems so obvious and simple as to be undeserving of any scholarly attention. “Copyright” has a long history, tracing back to the early 18th century in Britain –- which includes the variants “copy right” and “copy-right” — so the term is not new. Yet this question is important to ask and answer for several reasons.
First, copyright no longer is a backwater discipline relegated to the inspection of nerdy specialists. Instead, it is now central to the everyday activities of most American citizens.
Second, many people –- lawyers and lay persons alike -– often conflate copyright and “intellectual property.”
Third, there are some important theoretical and political considerations that influence definitions of copyright. While these considerations are advanced issues we are more likely to address over on Copycense than here, they are important these days because of the rhetoric and framing that is being used to position copyright law and policy in one direction or another. I will summarize copyright law’s main theories in a future post, and we will devote extensive coverage to the theory of copyright in upcoming articles on Copycense.
The Difference Between Copyright & Plagiarism
Last week, I addressed a common problem in which lawyers and non-lawyers conflate copyright and intellectual property (IP). In this post, I address another common confusion — the conflation of copyright (or copyright infringement) and plagiarism — and rationalize why I think being the subject of plagiarism allegations is much more damaging.
In order to distinguish copyright and plagiarism, it would be helpful to establish operative definitions for both concepts. I assiduously have avoided defining copyright thus far — I did not define copyright in the post on intellectual property — because I believe the term (and its defining parameters) should be defined carefully, particularly given the contemporary use of rhetoric and framing in this area of the law. Therefore, readers should consider as temporary the copyright definition I provide in this post, a placeholder I am using to complete this comparison. I will update this post later to reference the operative definition of copyright that we will be using throughout this publication.
Why Copyright Is Important
Copyright used to be a topic that interested a nerdy or specialized few, and affected a limited amount of works and creators. This post outlines some reasons why copyright’s scope, breadth, and applicability has expanded, and why this area of intellectual property has become so important.
Core Copyright 