Lawyers and lay persons alike often conflate copyright with “intellectual property.” Later, I will attempt to define copyright — a proposition that is a bit more complicated than one may think — but in doing so, it is important to explain what copyright is not. To this end, it is important to explain why copyright is not the same as intellectual property.
It remains a bit surprising that “copyright” and “intellectual property” often are used interchangeably, even by lawyers who practice in one or more areas of intellectual property. In his book Copyright’s Highway, Paul Goldstein tells a story involving the legendary copyright lawyer and professor Alan Latman that captures the frequency with which these two terms are confused.
According to Goldstein, Latman once told a group of intellectual property specialists that most people -– even at times judges –- often do not know the difference between copyrights, patents and trademarks. “When I tell a general practitioner that I am a copyright lawyer, he immediately corrects me: ‘You mean patents!’ He then says, ‘Well, anyway, as a patent lawyer you can copyright a name for me, can’t you?’” The subtle joke is that you cannot receive copyright protection for a name or title (but you can receive trademark protection for a name).
In summary, “intellectual property” is a name that describes a class of several different legal regimes that generally concerns creations of the human mind. Copyright is but one of the legal regimes that fall under the umbrella of intellectual property.
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.
Most initiatives like this arise from a Howard Beale moment. Appropriately enough for an online venture, ours occurred on Twitter.
A “follow” of our Copycense feed (see @copycense) posted a story on our mutual timelines about the Motion Picture Association of America (MPAA) shutting down a municipality’s free wireless network based upon an allegation of illegal downloading and distribution of movies. In reading the story, however, several things struck us as odd. First and foremost, we were reasonably confident that there is nothing in the Digital Millennium Copyright Act (DMCA) that seems to sanction disabling of an entire Internet service in the case of alleged or actual illegal downloading, no matter who the purported copyright owner may be. Does the DMCA provide Internet service providers (ISPs) with protection against lawsuits under certain conditions? Yes. But forcing an entire network out of commission? That seemed a stretch.
Another “follow” provided a competing (and seemingly more reliable) story that reported the municipality disabled the network on its own, and the MPAA did not request that the municipality shut down the network. This second story and further research made two things apparent: (a) copyright law had affected the everyday activities of citizens, a municipality, and a newspaper; and (b) the municipality and the newspaper had absolutely no clue about copyright, since the town disabled the network when it didn’t need to, and the newspaper’s reporter totally botched key aspects of the story.
(And don’t blame the reporter from the relatively small newspaper for not knowing any better. I’ve seen reporters from The New York Times routinely report incorrectly on copyright stories as well.)
The bottom line is this: never has copyright law affected so many Americans, yet so few Americans know anything about it. There are several people who routinely and freely discuss copyright law online, including William Patry, Michael Geist, and Ben Sheffner. The information provided through these outlets, however, is for advanced and experienced audiences: lawyers, policy makers, and law professors. In contrast, there really is no introductory material — online or in text — that allows the average person without legal training to access some basic, unbiased, educational information about the U.S. copyright system.
This publication seeks to fill that void. Core Copyright seeks to make copyright, information policy and related issues clear and understandable to the average citizen creator, be it a 7-year-old making a collage, or a 70-year-old creating needlepoint — all while maintaining high standards of scholarly and journalistic rigor. Core Copyright is a complement to Copycense, our sister publication. Copycense will continue to provide scholarly and editorial at intermediate and advanced levels for lawyers, law students, policy makers, lobbyists, and law professors. In contrast, Core Copyright is for citizens who just want to know more about this thing called copyright.
Copyright once was something that only concerned specialists, entertainment corporations, lobbyists and legislators. Now — with the lower barriers of creative production and distribution wrought by computer power, software packages, and the World Wide Web — copyright arguably is as much a citizen’s issue as a corporate issue. Citizens are copyright stakeholders now, as much as corporate copyright owners have been. Our goal is to help citizens understand and appreciate copyright better than they do now. We look forward to exchanging useful dialogue and learning about copyright, information policy and related matters so that all may “promote the Progress of Science and useful Arts” and “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
© Copyright 2009, Core Copyright