Crash course on copyrights: Rights granted by copyright

In this document

Exploitation rights
Moral rights

Exploitation rights

It is the purpose of most copyright laws to put an author in a position in which he can decide how, where and when to exploit the works he created. Exploitation can take many forms. Usually, works are sold in the form of copies on tangible media, such as books or compact discs. Copyright always protects the making of copies. But works can also be distributed or published without tangible copies, so this is also protected in some way.

Making copies of the work

Until the advent of copying machines and computers, exploitation of works usually required the making of copies, and so it is not surprising that the making of copies is one of these exclusive rights. The author of a work can request a fee for every copy made of his work. He can also restrict the number of copies being made, for example to keep the work exclusive.

Reproductions need not be in the same form as the original work. A photograph of a painting also counts as a reproduction of the painting, and so requires the permission of the painter. Taking a photograph usually involves creative effort by the photographer (picking the right angle, adjusting the lighting, and so on), and so the photograph itself is a protected work. This implies that making a copy of the photograph then requires the permission of both the painter and the photographer.

Performance and non-tangible distribution

Copyright also grants exclusive rights that are not related to the making of copies. Public performances or broadcasted distributions of the work are also covered by the author's right. This means that the creator of a movie can charge a theater operator for every time that his movie is shown in the theater. Radio stations have to pay musicians (or, usually, their record companies) for every time they play their songs.

Until recently, such a distribution of a work in non-tangible form was relatively easy to handle in copyright law. There is one source, such as a radio station, a cable network operator or a pay-per-view movie channel, which distributes the work to multiple recipients. This source can be identified and can then be sent a bill. Distribution over the Internet changed a lot in this respect.

Internet distribution

While distribution over the Internet does involve the making of copies, these copies are usually technically necessary to access the work, and so are generally deemed not to infringe. Of course, if someone makes an electronic copy of a work and distributes it on a website, he infringes on the owner's copyright.

Two significant areas of attention are caching proxy servers and hyperlinking.

Caching proxy servers

There are, however, many grey areas. For example, to save transatlantic bandwidth, many European Internet providers run caching proxy servers that keep temporary copies of files downloaded from US servers. If two or more people want to download the same file from the USA, only one transatlantic transmission needs to be performed. The second person gets the file from of the caching proxy. So, the caching proxy server makes copies and distributes those. Is this copyright infringement?

One the one hand, the copying is done for purely technical reasons, to save bandwidth and transmission time, and not to make a profit or to pass the proxy server operators off as owner of the work. But on the other hand, many US sites put advertisements on their sites, and get paid for every time these advertisements are downloaded. If European visitors download the advertisements from the caching proxy server, the US site does not register this and so the site operator does not get paid. So, the caching negatively affects the US site.

Hyperlinking

Another novel aspect of distribution over the Internet occurs when hyperlinking to another work. Hyperlinking can take many forms, from a simple link that, when selected, takes the reader to the linked work, to a page that directly includes a work, such as an image, that is served from another site. Including someone else's images in your work is traditionally a copyright infringement, since it involves making a copy of the image and pasting the copy in the work. But here, no extra copy is made. It is still the original server that sends the image to the reader.

There have been cases in which the re-use of a published work was regarded as copyright infringement, even though usually the rights to a work are exhausted after the first sale. For example, a Dutch artist (Rien Poortvliet) created a number of paintings that were reproduced in the form of a calendar. A third party bought a number of calendars, cut out the paintings, and sold them separately in a frame. This was deemed to be a new use of the work, which required renewed permission from the artist.

Hyperlinking to a work might similarly be construed as copyright infringement, depending on how the link is constructed, where it points to and how it affects the linked work. Deeplinking, linking directly to a resource like an image that is part of another work, is more likely to be seen as infringing than linking to a Webpage. Such linking could also be regarded as a tort, as it may cost the owner of the server on which the image resides extra money for serving the image outside the original context. However, several court cases have found that deeplinking per se does not necessarily constitute a tort.

Moral rights

It can be argued that the automatic granting of copyrights to creative works is an indication that society values the creation of such works, and that authors have a certain natural right to control their works. This is the basis for recognizing the "moral rights", which are rights the author can exercise even after having transferred or sold the rights to his work. The concept of moral rights is present in the Berne Convention, but even after adopting it, the United States still offers very little protection for the enforcement of moral rights.

Using his moral rights, the creator of a work has the following rights (article 6bis Berne Convention):

The right to claim authorship of the work.
The right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the work, which would be prejudicial to his honor or reputation.

What exactly constitutes a mutilation of a work is largely a matter for the court. One author might not mind large modification to be made in the text he wrote, while another might feel that the change of the color scheme used to present the work already negatively effects the work.

Such disputes become most visible in the case of architects. When a building is designed in a creative manner, the architect has a copyright on that design. He can transfer the exploitation rights to the owner of the building, but he retains the right to act against any mutilation of the building, such as the construction of a balcony on a side of the building which the architect feels completely destroys the aesthetical value of the building.