Copyright Issues in Research

Copyright Law

Copyright law protects various forms of creative work for a limited period of time. Creative works range in depth and complexity including literature, music, computer programming, art, and academic monographs. It is important to think about copyright within the umbrella of property law because it informs the collective desire to protect content. Property law protects the real, physical forms of property (like houses, horses, and other material objects) whereas intellectual property protects the intangible assets of a person or group. Intellectual property law is a type of property law and there are three types of intellectual property law: trademark, patent, and copyright. Trademark is, by comparison, a relatively new form of intellectual property that works through a registration system to denote a specialized logo or form of sign to identify a particular service. Trademark is unique because of the system of registration that allows a company to maintain a trademark for centuries. For example, the German beer company Löwenbräu has maintained its trademark since the 14th century. Patent law protects scientific and technological invention for a limited period. Currently patents last for 20 years after the claim is filed.

Patent was the earliest form of intellectual property going back to 16th-century Europe. Early patent control was regulated by a royal decree called Letters Patent, from the King or Queen of England to a selected manufacturer, publisher, or group, in the early 13th century. Copyright was codified during the British Restoration and later borrowed by the framers of the U.S. Constitution, who established Article 1, Section 8, the Copyright Clause. Copyright law has been revised several times to address changes in technology and distribution. Most notably, copyright law was revised three times in the 20th century, meaning that copyright law changed more in the last 100 years than it did in the first 400 years of its existence.

Copyright is significant because of two elastic clauses within its most recent revision that guide [Page 262]the law: “fixed in any tangible medium of expression” and “limited term.” The phrase “fixed in any tangible medium of expression” allows for a great deal of space for technology and human ingenuity to change how creative work is produced. Books and other forms of writing are well-worn forms of copyright protection, but programming languages and works that are captured by digital video required similar language to protect them. It is notable that the phrasing “fixed in any tangible means of expression” was established in the 1976 revision to copyright law, which addressed the long-overdue protection of film, video, and television. The legislators understood that what could be protected under copyright law needed to be broadened. One problem with this elastic clause is that it can be too inclusive. If copyright law protects any fixed work in any tangible medium, that means the tiniest creation is protected: grocery lists, film clips, and song snippets. The problem is that copyright infringement cases protect the smallest violation with the same energy as sizable thefts.

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