Copyright and the US Constitution

The Congress shall have the power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. U.S. Constitution - Article 1 Section 81

So important was the concept of copyright to the founders of the United States, they enshrined it in the country's founding document!

What is a "Copy Right"

When someone says "copyright," most folks intuitively understand that a copyright provides certain protections to the creator of a "work," by which is meant a song or a play or a book or photograph, painting, poem, etc. That "certain" protection is most often thought of or understood to be a protection against someone "stealing" your intellectual property (if you are a creator).

"My Sweet Lord"

Many people are familiar with a few famous copyright cases like the one involving George Harrison's "My Sweet Lord." In these kind of lawsuits, generally somebody very famous is sued by someone not so famous (or not famous at all) for "infringing" the lesser known writer and work. What is alleged (and was proven in the "My Sweet Lord" case) was familiarity with the less well known work, and "taking" or "copying" of a key and identifiable element or elements of the lesser known work (even though in the Harrison case, the judge ruled that the taking was inadvertent, or unknown by George Harrison).

Copyright = "A Right To Copy"

Surely, copyright law and a "copyright" are key aspects of such a case. But, on a much more elemental basis, a copyright is literally "a right to copy." When you purchase a CD or a downloaded song or album, you are in effect, purchasing the means to listen to those songs (or song, if it's a single), but you are not purchasing or being conveyed the right to copy the works!!

When a creator creates a work, he/she is the only one that has the right to make a copy of that work and give or sell it to somebody else. That's what a copy "right" is!! From there on out, any subsequent person or entity that secures the right to make copies must do so by entering into an agreement with the original copyright holder or owner. That right is generally called a "license." That license is generally limited to very specific circumstances, like the right to make a specific recording of the work and sell that recording in specific markets.

Music Consumers' Rights

Moreover, when an artist "cuts" (records) a song, a new copyright is created and that copyright is the sound recording itself. This is the reason the RIAA will never come out and say that someone who buys a CD has a blanket (i.e., under any circumstances) "right" to make additional copies of that CD either as CDs or digital files for their iPod or computer(s). That's why you also see some language that has been worked out between the music and movie industries and the FBI as follows:

"Warning: The unauthorized reproduction or distribution of this copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to 5 years in federal prison and a fine of $250,000."2.

The key word here is "authorized." Here's what the recording industry organization says is "authorized":

  • Copying CDs
    • It’s okay to copy music onto an analog cassette, but not for commercial purposes.
    • It’s also okay to copy music onto special Audio CD-R’s, mini-discs, and digital tapes (because royalties have been paid on them) – but, again, not for commercial purposes.
    • Beyond that, there’s no legal "right" to copy the copyrighted music on a CD onto a CD-R. However, burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns so long as:
      • The copy is made from an authorized original CD that you legitimately own
      • The copy is just for your personal use. It’s not a personal use – in fact, it’s illegal – to give away the copy or lend it to others for copying.
      • The owners of copyrighted music have the right to use protection technology to allow or prevent copying.
    • Remember, it’s never okay to sell or make commercial use of a copy that you make.3