The duly noted® blog

Why copyright exists

Imagine this scenario; you build a cottage, say, to your own design. It‟s a beautiful, Tudor-style, thatched roof affair, with a small, well-kept garden, and a breath-taking view of rolling, verdant green hills offering spectacular sunsets in the evening. Now imagine someone finds out about your unique, very attractive cottage one day, and moves in while you‟re out. You come home to suddenly find you can‟t get back in, and this squatter inside is claiming they own your house, that they built it even, and worse, they‟ve started renting out the back bedroom for a pretty penny.

To cap it all, they‟re now building duplicate cottages matching your design down the road to sell and earn even more money. Now imagine there was no law in existence to give you the opportunity to re-claim ownership of your property and no means to stop the usurper or win restitution from them for their actions.

Transfer this – admittedly crude – analogy to creativity, and that‟s why copyright exists.

I like how the Irish Patents Office(5) puts it on their website with regards the Nature of Copyright:

“First, persons who create works of the intellect or who invest in their creation and dissemination are entitled as a matter of human right to secure a fair return for their creativity and investment.

Secondly, unless the rights of creators and investors to a fair return are supported, the community as a whole would be impoverished by the fact that, in many cases, these works would not be created or developed.”

Our civilization progresses through creativity and innovation. But for creators to create, they need to eat, they need to live, earn money, receive recognition for their work and the stimulus to keep striving when the going gets tough. Copyright exists therefore to make this happen and help the innovators earn revenue from their creations. Copyright exists to promote creativity and help creative people live from their creativity. Copyright exists because it makes creative and business sense for copyright to exist. If a writer earns money from their work, they can earn the funds to keep writing. If an artist earns money from the licensing and manufacturing of images of artwork, they have income so they can invest their time productively in more projects. Furthermore, copyright exists to encourage innovation and prosperity, for society as a whole as well as for the individual doing the innovating.

Take copyright away and you effectively tie the hands behind creatives‟ backs. Imagine a world culturally, creatively, industrially and economically deprived because its innovators weren‟t given the reward for – and the power to protect the use of – their endeavours.

With that in mind, let‟s put my cottage analogy of the previous page into proper context now; you‟re a creative person, aren‟t you? Imagine every time you created something, someone could come along and copy it, claim it as their own and very likely make money from it, and without fear of consequences because there was no law making their actions punishable. You‟d very soon give up creating wouldn‟t you? What‟d be the point of all that hard work when others could reap the credit and the reward? Fortunately for us, that‟s not how it is in the real world. Let‟s read again what the Irish Patents Office says; that it‟s a “…human right to secure a fair return for their creativity and investment.” I say again, nicely put.

So that‟s why copyright exists.

But just what is copyright?

Copyright is… If you consider my crude cottage analogy again; it essentially establishes what copyright is… a property right. But a property right that applies, not to land or buildings or vehicles, but to products of the human mind… of our intellect. Creative products, such as literary, dramatic, musical or artistic or filmic work (don‟t worry, I‟ll go into greater detail of work to which copyright applies later). And what can one do with this “intellectual property” right? Well, copyright has some similar but also different entitlements to other forms of property right, specifically allowing the copyright owner (or owners) to:

• copy, lend and distribute their work

• license others (i.e. grant written permission) to use the copyright owner‟s work
• adapt their work or licence others to do so (e.g. adapt a book into a movie)
• sell their created work – their intellectual property – to others, and, importantly…
• have powers to stop wrongful infringement of those rights by third parties, i.e. the copying and exploitation of the copyright owner‟s work without their permission, as well as…
• obtain recompense in the form of compensation or damages for infringement where loss of revenue has been discovered.

This applies to a copyright owner‟s work, whether or not it‟s been published, exhibited or otherwise released to the public for their consumption. Not only this though…

Moral Rights in copyright

A creator and commissioner of a copyrighted work is also entitled under copyright to other rights relating to their work. Called “Moral Rights”, these are:

• the right to be identified as the author (or artist, or photographer, or composer, or director etc.), and to stop a work being falsely attributed to them

• the right not to have their work subjected to derogatory treatment (alteration, re-arrangement or deletion) by others; “derogatory treatment” being where the resulting work is mutilated, distorted, and can damage the creator/author‟s reputation
• the right to privacy when it comes to certain photographs and films (e.g. a commissioner of private photos has the right not to have them published or exhibited to the public where the photos become copyright works)

Here‟s some examples of these above three points:

If you flick open the front few pages of any book, you‟ll see that the author has asserted their moral right to be identified as the author of that book; a right they have under law to do so(7). Were it a fictional book, and it was adapted into a movie, they‟d also have the right to be identified in the movie as the author of the source novel – unless you set aside the right. Conversely, Alan Moore, whose now legendary unhappiness at the treatment of adaptations of his graphic novels and how he feels they‟ve reflected badly on his original work, has prompted him to demand his name be removed from the movies‟ credits, such as Watchmen.

If for some reason, J K Rowling‟s Harry Potter series of books had been knowingly and deliberately credited as my work and not hers by someone else, both she and I could stop it, due to false attribution.(8)

If during the editing of this book, I‟d felt a third party (an editor, a publisher or printer) had done a hatchet job on all my hard work, I could not only let it be known how unhappy I was with this mistreatment, but I‟d have the right to stop it too.(9)

Finally, the photo-portraits of my significant other and I which we paid a professional photographer for, hang on the walls where we live… and nowhere else without our say-so.(10)

See how Moral Rights work?

Now I need to mention there are however exceptions to Moral Rights; they can‟t be asserted when copyrighted works are computer programs or computer-generated work (created without human intervention), or for a typeface design. Also, if the creator/author hasn‟t asserted their right to be identified as the creator/author if that right applies, the Moral Right hasn‟t been violated. In addition, if the creator/author works for an employer who does/will own the copyright of the work you produce, you will not have this right either.

5 – Irish Patents Office: http://www.patentsoffice.ie. Copyright – a brief history: http://www.patentsoffice.ie/en/student_copyright.aspx
6 – Copyright – a brief history: http://www.patentsoffice.ie/en/student_copyright.aspx5
7 – The Copyright, Designs & Patents Act 1988, Chapter IV Moral Rights, sections 77-79.
8 – The Copyright, Designs & Patents Act 1988, Chapter IV Moral Rights, section 84
9 – The Copyright, Designs & Patents Act 1988, Chapter IV Moral Rights, sections 80-81
10 – The Copyright, Designs & Patents Act 1988, Chapter IV Moral Rights, section 85