What is copyright?

The term “copyright” (or sometimes “author’s rights”) refers to rights in relation to original artistic and literary works such as novels, writing, music, paintings and sculptures, films and technology-based works such as computer programs and electronic databases. It protects the particular form of expressing an idea: it does not protect the idea or cultural expression itself.  This distinction between the idea and the protected tangible expression is often problematic for Indigenous, traditional and local communities because it provides protection for the document and documented form, not the oral expression from which the documented form captures.

Copyright protection comes into existence automatically upon the creation by the ‘author’ of an original work and the author is not required to register his or her copyright. The author of a work, the initial copyright owner, has a bundle of “exclusive rights” to do certain restricted acts in relation to his work. These may include: copying the work; publishing, issuing or selling copies of the work to the public; performing the work in public; playing the work in public; showing the work in public; broadcasting the work or including the work in a cable program service or digital media; making an adaptation of the work or doing any of the above activities in relation to an adaptation; and authorizing any other person to do any of the restricted activities listed above.

In the United States (title 17, U.S.Code) copyright is offered to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • reproduce the work in copies or phono-records;
  • prepare derivative works based upon the work;
  • distribute copies or phono-records of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio visual works;
  • display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural  works, including the individual images of a motion picture or other audio visual work;
  • perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission.

In addition, certain authors of works of visual art have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act, Visual Arts. It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright. These rights, however, are not unlimited in scope. Sections 107 through 122 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of “fair use,” which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.