Rights of Copyright Owners

Copyright law grants owners certain specific rights that only they may exercise. Those rights, as outlined in Section 106 of the Copyright Act are:

• the right to make copies of the work
• the right to prepare derivative works
• the right to distribute copies of the work
• the right to perform the work publicly
• the right to display the work publicly
• for sound recordings, the right to perform the work publicly by means of a digital audio transmission

In addition, a 1990 amendment to the Copyright Act grants “moral rights” to copyright owners (these are applicable only to certain works of art). In 1998, the Digital Millennium Copyright Act expanded the rights of copyright owners. One provision of the DMCA allows copyright owners to use technological measures to control access to copyrighted works (and makes circumvention of those measures a federal violation); a second provision establishes protection for copyright management information (copyright notice, names of authors, performers, etc., and conditions of use, for example) and makes removal or alteration of such information a violation.

Under the Copyright Act, the owner of a copyright has the sole right to make and to distribute copies of the work. But we make and distribute copies of copyrighted materials all the time. We photocopy articles, download documents, images, and music, quote passages from works; are we violating the right of reproduction? We distribute photocopies of articles in class, place them on reserve, make them available on our website; are we violating the right of distribution? Maybe and maybe not. The Copyright Act also provides exceptions to the rights of copyright owners, so we have to determine if the use in question falls within one of those exceptions.

Derivative works are new works based on existing works. A motion picture which is based on a novel is a derivative work. While this is a high profile example, other kinds of derivative works, including translations of texts, indexes to books, and teachers’ manuals to accompany textbooks, are derivative works that are common in higher education. In these more low-profile cases, just as in the motion picture example, the copyright owner holds the right to make derivative works, and his or her permission is required before any derivative work can be produced. As new works, derivative works are eligible for copyright protection in their own right (assuming they are not infringing works). Exceptions to the rights of the owner may also allow for the creation of certain kinds of derivative works without prior permission, but these exceptions are complex (see, for example, Campbell v. Acuff Rose Music).

The copyright owner has the exclusive right to perform or display his work in public. The Copyright Act (Section 101) defines “display,” “performance,” and “public.” Basically, to display something is to show a copy of it, and to perform something is to “recite, render, play, dance, or act it.” When we display or perform something to people outside our circle of family, friends, and social acquaintances, in a classroom for example, then the performance or display is public. Is the right of display infringed when we hang a poster in the office? Is the right of performance infringed when we read a play aloud in a class? We have to look at the limitations the Copyright Act places on the rights of owners in order to decide.

Congress added this right to the Copyright Act in 1995 to address the growing use of the Internet as a means of delivering music (and the presumed resulting decline in sales of recordings). Prior to this amendment, composers had public performance rights for their songs, but performers had only the right to reproduce and distribute their recordings. In other words, the composer of a song made money when the song was played on the radio, but the performer only made money when a copy of the recording was sold.