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The Book as Intellectual Property: IP & Copyright

The United States Copyright Office defines copyright as "a form of protection provided by the laws of the United States (title 17, U.S. Code) to authors of 'original works of authorship'". The owner of the copyright has exclusive rights to authorize publication and distribution of their work. The law has gone through a number of revisions over the past two centuries.

Intellectual Property & Copyright: The Connection

Although the terms "intellectual property" and "copyright" are relatively recent, concerns about authorship and providing credit for creators has been around for a long time. The right to copy, share, and circulate books has been a concern since the time of Gutenberg. Who can and should profit from creative works? How do increasingly restrictive forms of copyright impact cultural expression?

Laws governing intellectual property have evolved differently in different countries leading to complex issues as the world becomes more global. However the problems and controversies regarding intellectual property began well before modern laws.

According to Hesse (2002, 26),

"The concept of intellectual property - the idea that an idea can be owned – is a child of the European Enlightenment. It was only when people began to believe that knowledge came from the human mind working upon the senses rather than through divine revelation, assisted by the study of ancient texts that it became possible to imagine humans as creators, and hence owners, of new ideas rather than as mere transmitters of eternal verities. "

Rose (1993, 2) states that "copyright is founded on the concept of the unique individual who creates something original and is entitled to reap a profit from those labors." Rose (1993, 3) continues that "copyright - the practice of securing marketable rights in texts that are treated as commodities - is a specifically modern institution, the creature of the printing press, the individualization of authorship in the late Middle Ages and early Renaissance, and the development of the advanced marketplace society in the seventeenth and eighteenth centuries."

In Authorship and Copyright (1992), David Saunders explains that intellectual property rights began as an attempt to protect the economic rights of producers. He notes that it wasn't until the 19th century that the connection between the copyright holder and the content creator was established.

Loewenstein (2010, 21) distinguished between the "law of intellectual property" and the "cultural experience of intellectual property". He states that "at any given cultural moment the institutions regulating intellectual property may conflict". What benefits came from having access to intellectual property? How has access to intellectual property changed? How does public access change the dynamic of society and allow the masses to move up in society? These are questions that shift the focus of intellectual property from a discussion of the rights of authors and publishers to the rights of users and readers in a society.

readRead!
Read Moore, Adam D. (2013). Concepts in Intellectual Property and Copyright. In, M. Suarez & H.R. Woudhuysen, The Book: A Global History. Oxford University Press. IUPUI students can view the article online.

readRead!
Read McGill, Meredith L. (2013). Copyright and intellectual property: the state of the discipline, Book History, 16, 387-427. IUPUI students can view the article online.

The Copyright System

Alina Ng (2012) views that copyright system as having three distinct parties: authors, publishers, and the public. Each party hold separate interests in the work. While authors create the works to advance knowledge or arts, publishers provide a channel for authors to deliver their work to readers. Some authors create works for profit, while others have noneconomic motives. However publishers typically are focused on the economics of printing and dissemination. Ng questions why our copyright laws treat the needs, interests, and expectations of authors and publishers the same.

Alina Ng (2012, 545-546) also stresses the connection between literary property rights and copyright laws.

"The author's literary property right in the work does not cease to exist simply because copyright statute or judicial decisions do not explicitly acknowledge that right exists by law - a natural right exists even without legal affirmation... the express recognition of particular statutory privileges to publish and sell a work exclusively should not be taken to suggest that these privileges constitute all of the rights that authors have in their work. Nor should it be assumed that literary property and statutory copyright are mutually exclusive principles protecting separate interest of an author at different times along a seamless continuum of events that begins at the inti ti al conception of a creative idea and that ends with the dissemination of the expression to the public. It is important to see how the distinction between an author's natural interest in how the work is used and economic interests, naturally arising from the work's publication and public dissemination, is blurred when courts state that literary property only protects a right to first publication before a work is published and that statutory copyright protects the authors' exclusive rights to print and sell the work post-publication. Literary property would be an interest that authors continue to have even after a publisher commits to publishing and disseminating their work."

readRead the Introduction (531-532) and Conclusion (567-577) to Alina Ng's article titled Literary Property and Copyright from Northwestern Journal of Technology and Intellectual Property. Then, skim the rest of the article. IUPUI students can view the article online

In Barbara Ringer's 1974 lecture on copyright titled The Demonology of Copyright, Ringer (1974, 5) begins

"In choosing to give this lecture the rather enigmatic title of "The Demonology of Copyright," I do not mean to suggest either that copyright itself is a form of devil-worship or, conversely, that copyright offers a form of salvation from the powers of darkness. Like any other law, copyright is a pragmatic response to certain felt needs of society and, like any other law, must change in scope and direction as these needs change. But changing any law is never an easy matter, and the case of copyright is made much more difficult by the religious fervor and theological arguments thrown at each other by the contending parties. The personal anger, the emotion, the presentation of viewpoints in stark black-and-white terms, are quite different in degree and character from what one might find in disputes over, say, admiralty or insurance law."

The image below shows how the terms of copyright changed from the 1790s to today.

term

readBrowse Notable Dates in American Copyright, 1783-1969 compiled by Benjamin W. Rudd.
Create your own list of the dates you find most important.

Defining the Key Concepts

Let's explore some of the key ideas and definitions related to intellectual property and copyright.

Rights refer to the exclusive privilege of literary property ownership. This includes the right of first publication, volume rights, and reprint rights. Subsidiary rights include translation, foreign publication, quotation, and adaptation. It's possible to transfer rights through sale from one person or entity to another.

The term copyright refers to the exclusive legal rights granted to a creator or publisher by a government. These rights include producing, publishing, disseminating, and selling copies of works within a set of guidelines. The copyright law also addresses the creation of derivative works, reproduction of works, and performance rights.

In many cases, the phrase all rights reserved is found on the verso of the title page of a book. This phrase provides a formal notice that all rights under existing copyright laws are retained and legal action may be taken against infringement.

The author of a book is the owner of the copyright of a work under U.S. copyright law. However in the case of work for hire, other arrangements may have been made. For instance, in some cases a university may own the rights to the work of a professor or a company may own the rights to work done by employees.

Public domain works include materials that have never been copyrighted or are no longer protected.

Under U.S. Copyright law, an individual who has purchased a work (known as the first sale doctrine) is allowed to sell, trade, rent, loan, or donate the item without permission of the copyright holder. Without "right of first sale", libraries would be unable to lend books and individuals wouldn't be able to donate their books to the library.

A pirated edition is a book issued in violation of copyright law. This often occurs outside the country in a location with weak copyright restrictions.

Plagiarism involves duplicating or closely imitating the work of an author without permission or credit. The copyright law makes plagiarism a federal offense.

Forgery involves the physical duplication of a work such as a book to deceive someone into thinking it is the original. For instance, faked first editions are forgeries and their sale is illegal.

In addition to copyright laws, there are also moral rights associated with intellectual property. The right to publish anonymously; the right of attribution; and the right to protect a work from distortion, alteration, or mutilation are legally protected.

Understanding Intellectual Property through Primary Sources

When studying intellectual property, scholars often search the records associated with the law such as acts, amendments, and court proceedings and decisions. They may also examine legal contracts.

Letters among authors, patrons, and publishers can also be useful in examining issues related to intellectual property.

try itTry It!
Primary Sources on Copyright (1450-1900) provides a wonderful set of primary source documents associated with different points in copyright history. To view the documents click the date, then click the IMAGE. In some cases you can view a PDF version of the document. Compare the perspectives of different people during the same time period. Or, examine changes in thinking over time.

readRead!
Read The Nature of the Book by Adrian Johns. The book is available as an e-book through IUPUI. IUPUI students can view the book online.

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