Rights of copyright holder: control of copying, broadcast, and “performance”

Section 106 of Title 17, ch. 1, tells us that

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

  1. to reproduce the copyrighted work in copies or phonorecords;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  5. 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 audiovisual work, to display the copyrighted work publicly; and
  6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Digitizing or re-formatting: The first and second rights listed in the law include the right to digitize or reformat entire works in any way. That is, while a teacher, artist, critic etc. can extract a short clip from a film or a paragraph from a book, under Fair Use, he or she may not digitize an entire film, or copy a VHS onto a DVD, etc. (but see the exceptions for libraries and also, though it does not provide a clear exception, the TEACH Act).

Performance and display: Note the defnition of "to perform" from section 101: "in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible." For "to display" we have: "to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially." The most important exception to this rule is the one for face-to-face teaching.

Section106a reinforces the right of the artist who is the author of a work of visual art to claim attribution and integrity (the work should not be mutilated or destroyed) during his or her lifetime.

Sections 107-122 provide many carefully delineated exceptions to these rules. Before discussing those, however, let's mention some of the principles involved.

Public domain

No short version! Determining whether an older media item is in the public domain (that is, no longer subject to copyright) is not easy. A useful tool is theCopyright Genie from the Copyright Advisory Network.

A media item is in the public domain if the original copyright on it has elapsed. The date of copyright is the date of publication (display, performance, or in some cases creation) of the item.

The term of copyright (how long it lasts after the date of copyright or after the creator's death) varies from country to country and tends to be revised in order to protect the rights of copyright holders. For example, films that had been in the public domain in Europe for many years were brought back under copyright by new European Union laws. In the United States, it is unlikely that Walt Disney's copyrights will ever expire, which means that media contemporary with his earliest works will also remain under copyright protection.

Public domain images: an important contention between museums and users involves reproductions of paintings (2-dimension objects) which are themselves in the public domain. Museums may produce and sell high-quality paper or digital images of their public domain holdings, and they wish to retain copyright on these images. A significant case in the U.S. was Bridgeman Art Library vs. Corel Corp. in 1999. A judge for theUnited States District Court for the Southern District of New York ruled that 2-dimensional "slavish" reproductions of 2-dimensional public domain objects cannot be copyrighted. However, the National Portrait Gallery in London and other museums insist that certain digital reproductions qualify as copyrightable works, perhaps as a kind of "restoration." Note: photographs of public-domain 3-dimensional objects are subject to copyright, since they require the photographer's skill.

A restored media item has a new date of publication and a new term of copyright. In short,as VHS of a silent film, based on the original and unrestored, may be in the public domain, but if someone has restored the film to brand-new condition, that version is under copyright.

Here is a chart that gives an overview of how long it takes for various kinds of works to fall into the public domain. Copyright Term and the Public Domain.

Orphan work: This term has several meanings, but one of them is: a work under copyright whose copyright holder cannot be contacted. This may be because the author is unknown (for example, an old photograph with no photographer's name) or because the author is dead and his or her heirs are unknown, or for other reasons. In principle, a work such as this cannot be used as if it were in the public domain. In Title 17, Section 108, provision (h), the law allows libraries to copy an orphan work during the last 20 years of its term of copyright. (The Internet poses a special problem for authors of works which may be copied without attribution and posted elsewhere on the Internet in such a way that they appear to be orphan works.)

Economic value of rights

Short version: money does matter. If an item is being marketed commercially, copies should be purchased by libraries and users as needed.

While some rights (e.g. that of an artist to have original work correctly attributed) are moral rights, to a great extent the rights listed above constitute economic incentives to continue producing and publishing in new formats.

Thus the European Union revision backwards of rights to films encouraged the heirs of the original creators to become involved in new editions in order to profit from them. In America, the right to copyright a restored version encourages new digital restorations.

In some cases, the rights owners may willingly offer their copyrighted media for free. Nevertheless, they retain their rights. Creative Commons is an association which works out how to allow copying, performance, and display without losing control of the item. Annenberg media now offers French in Action, Destinos, and Connect with English in online versions at no charge, but they still retain their rights over these expensive series from the last century.

The rights of copyright owners to sell their media exactly the way they want are inflected by various legal concepts. One is accessiblity; if a technological barrier on which the seller insists prevents a disabled person from accessing purchased media, in general that barrier can be circumvented without infringing the law; for example, in the 2003 rulemaking it was ruled that it is legal to disable access controls on ebooks which prevent the use of screen readers for the visually impaired.

There is also the idea of a fair or reasonable price with respect to media and rights to access, reformat, or copy media that one owns. In the 2003 rulemaking regarding non-region 1 players, the Register of Copyrights commented, "The record indicates that those DVD drives [which play any region] are available for as little as $19.95" (p.123). The assumption is that those requesting exceptions own computers already (since they submitted their comments to the Register electronically), and that the purchase of a DVD drive dedicated to a particular region is a reasonable expense. The rights of libaries to make a copy of a fragile copyrighted item they own depends to some extent on whether a replacement copy is available at a reasonable price. The judge in the Georgia State case examined each case of possible infringement to determine whether the publishers suing the university library in fact offered easy access at a reasonable price to the digital rights they insisted the library should have paid for.

Public Performance Rights: Why you need a budget for your film festival

Short version: If the situation is not an actual classroom or required screening of a film with the instructor or a representative present, the right to play a movie for an audience belongs to the copyright owner, and you have to pay for that right.

Educational use is a limited concept in copyright law. The law makes an exception to the rights discussed below for "performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction," provided the copy of the work is legal or at least not obviously illegal.

A little history

In the days of 35-mm and 18-mm films, not many people or even institutions actually owned films. An older copy of a film needed to be inspected and repaired, on a large machine, after every viewing. It needed special equipment for projection. So there was an investment in both technology and skilled personnel involved in maintaining a film library. If a group owned a copy of a film, it could not only make money by renting it out, it could make money by showing it in public, or show it for free. Possession was 90% of the law.

A campus French film festival in 1971 began with finding out what films could be rented and what they would cost. That was the biggest item in the budget. Rental contracts varied depending on how many times the film would be shown, whether there would be an admission charge, etc. Then we had to raise the money for the rentals. We had to find a place to serve as theater, reserve the equipment, and get someone to run the projector. Most of the films came from Janus, the forerunner of Criterion DVDs, but in one case we got a copy of Cocteau's Belle et la Bête from the Alliance Française for the price of shipping. The heavy film cans would arrive on the day of the showing or the day before, and had to be returned the next business day, so that the reels could be readied for the next renter.

The important moral duties someone like Henri Langlois, founder of the Cinemathèque Française, felt towards a film's author was to preserve the images on the film in the best way possible (including copying and restoration), and to show it often so that audiences could continue to appreciate it.

When home video came in, many classic films appeared on VHS in a form that suggested someone had simply pointed a videocamera at a screen and run a copy of the film. So in that first period of home video, the assumption was that, since it had become possible to copy films easily, it was legal to do so with any film you owned, and sell the result.

PPR today

With the 1976 copyright law (Title 17), the concept of Public Performance Rights (PPR) for movies was established. This provided some control over proliferating copies being used for either commercial or free showings. It was no longer legal to show a film publicly just because you owned it. The right of display and performance became detached from the physical object.

PPR is the right "in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly"--where performance of a VHS, CD, or DVD means playing it. (Title 17, sec. 106)

Today's film festival, then, like film festivals of old, requires a budget. Before setting one up, you need to find out who owns the PPR for the films you want, and raise the money to pay for it. PPR is granted contractually, so you might be asked how many people will view the film, what admission will be charged, etc. If you don't own a copy of the film (and sometimes even if you do own a copy), the company will supply it, often with the mandate to return it the next business day.

In many cases, PPR has become a commercial property detached from other copyright rights, such as the right to make and distribute copies of a movie. Certain companies, such as Swank and Criterion, specialize in contracting these rights. In other cases, distributors of the DVDs buy the PPR rights as well.

Distributors of educational and documentary materials often use a tiered pricing structure. In some cases, libraries and schools pay a higher "institutional" price which includes PPR; however, other vendors offer nothing beyond the minimum buyers' rights defined by law, rights which an individual purchaser must waive contractually..

In a footnote to the comments of the Registrar of Copyright cited above under Region Codes, she noted that "Those comments [of lawyers confirming the right of viewers to view non-region 1 DVDs] note that a public performance of the work could be infringing." It's interesting that the word used is "could" rather than "would."