Copyright Basics: The Exclusive Rights of Copyright Holders

Copyright law can be confusing. As my last post focused what material is subject to copyright I wanted to focus this post on the next basic concept: The exclusive rights in copyrighted works.

The rights of copyright holders are outlined in 17 §106 and subject to restrictions laid out in §§ 107-122. Because these posts are meant to be short I will not dive deeply into the restrictions, suffice to say they are filled with nuisances that could fill several copyright textbooks.

Copyright holders have the exclusive rights as outline below

1. The reproduction Right

The reproduction right is the right of the author to make copies of his or her work. Thus the owner of a copyright is the only one authorized to make copies of the work and the right is violated when someone other than the holder of the copyright creates a copy of the work. There are certain situations where the statute allows “unauthorized” copying of work such as in the case of libraries making copies for archival purposes, home video recording, and, more recently, recording of copies onto a home DVR device.

2. The right to prepare derivative works

A “derivative work” is another work which is based on a preexisting work. These can be a “musical arrangement, dramatization, fictionalization, motion picture” or other forms of the original work.  Essentially it means that any work which is based on the original that in itself an original work of authorship. It gives the copyright holder the exclusive right to create new works based on the original. Therefore, making a movie version of a book is an excellent example. The copyright in the derivative work in no way extends or enlarges the “scope, duration, ownership, or subsistence of copyright protection in the preexisting material”. Additionally, the copyright in a derivative work extends only to the material “contributed by the author of such work, as distinguished from the preexisting material employed in the work”. Creating a derivative work does not give the author any right in the material on such the derivative work is based.

This means that only the copyright holder is authorized to make derivative works and anyone who wishes to create such work must obtain the appropriate rights from the author in order to do so.

3. The distribution right

The distribution right can be described as the right of the author of a work to distribute to the public copies of work “by sale or other transfer of ownership, or by rental, lease, or lending.” This means that only the copyright holder has the right to sell or distribute their work. This is an area that sees a lot of action these days as lawsuits involving torrent sites and file sharing often assert that this  right violated by hosting the files or allowing others to download them via torrent programs. Therefore, you do not have the right to share music through computer systems as this it can result in some pretty huge lawsuits.

4. The public performance right

This right applies, as indicated by §106, in the case of “literary, musical, dramatic, and choreographic works, and pantomimes, and motion pictures and other audiovisual work”.

For this right to be infringed the work has to be “performed” and it has to be to the “public”. The statute doesn’t define performance but it is not limited to someone standing there and singing a song or preforming a play; it also can apply to playing music in a café.  Performing a work publically means to “perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family is gathered.

Really this just means that the copyright holder has the exclusive right to perform the work or authorize the performance of the work publically; if someone wants to play music at their bar or restaurant they have to obtain these rights and pay royalties to a performing rights society such as the American Society of Composers, Authors and Publishers (ASCAP), and Broadcast Music, Inc. (BMI).

5. The right to display the work publically

This right applies in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or…sculptural works.” This right also applies to individual images of motion picture or other A/V work.  §101 defines displaying a work as showing “a copy of it, either directly or by means of a film, slide, television image, or any other device or process…”

This right is quite similar to the public performance right. That is, the holder of the copyright has the exclusive right to display the work except as limited in §109 and the first sale doctrine

I have decided not to include two rights listed under § 106, the right to perform work by means of digital audio transmission and the right of attribution and integrity. I did this not only for the sake of length but also because the digital performance right is exceedingly complicated by §114 of the act. The right of attribution and integrity, also known as the moral rights, are infrequently enforced and only a part of the copyright act because of the provisions of the Berne convention, most likely I will return to “moral rights” in a subsequent post.

As always, this information is not legal advice. Should you have a legal issue related to copyright please contact an attorney.

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