Copyright and Piracy

by

Peter Decherney

• LAST REVIEWED: 17 August 2022
• LAST MODIFIED: 28 January 2013
• DOI: 10.1093/obo/9780199791286-0090

Introduction

Copyright and piracy have always been important drivers of media industries. Copyright regulates authorship and creativity. Increasingly, copyright is being used to regulate media technology as well. The literature on copyright and piracy is growing steadily, in part because the Internet has raised new questions and brought copyright into the daily lives of many more media creators and consumers. Much of the literature on copyright has focused on piracy. Historical work on copyright has shown that piracy has always been a major element of media industries. The early years of the film industry in the United States, for example, were marked by intense battles over piracy. Scholars have come to see piracy that accompanies major breakthroughs in media technology as indicative of the exploration of new technologies rather than as malicious “free riding.” Similarly, many critics have focused on the positive aspects of piracy in developing societies or countries with repressive governments. Piracy can allow controversial media to be carried to people who would otherwise be cut off from access to it. Even in a country with an advanced economy like Japan, practices that would be considered piracy in most other countries are allowed to exist as integral elements of the flow of culture. Piracy receives a lot of attention, but copyright is relevant to most aspects of media history and theory, including studies of adaptation, authorship, consumption, genre, and the global exchange of culture. Copyright creates the parameters for the use of cultural traditions and the reuse of existing works. Copyright can determine when a writer, for example, has taken too much from an existing narrative. It may determine when a fan work has appropriately borrowed from the work it comments on. In addition, copyright may determine when a work may be shown publicly without permission (in a classroom or home, for example). These examples all fall under the category of fair use, and the doctrine of fair use has gone through a major transformation in the past twenty years, as documented in the literature below. Copyright law also determines the length of time that a work may be controlled by its owner, and when it becomes the property of society, when it enters the public domain. Finally, copyright laws vary from country to country. In all countries with copyright laws, works are now protected as soon as they are created, regardless of whether they have been registered with a government office. But in the United States, a copyright may be transferred, sold, or otherwise licensed. In what are called “authors’ rights” countries, on the other hand, copyright is seen to extend organically from the creator and some rights—such as the right to be named as the author—cannot be signed away. Although the literature on film copyright and piracy is still nascent, it is, of necessity, a growing area of interest.

General Overviews

Copyright can be a complex subject. These are all clearly written works that put the topic in a cultural and historical context. Goldstein 2003 succinctly covers the history and theory of American and international copyright. The author’s views lean toward greater protection for authors, and Samuels 2000 agrees. From the opposite perspective, Patterson and Lindberg 1991 makes the case that copyright should place users before creators. Vaidhyanathan 2001 takes Patterson and Lindberg’s insight and traces it through the history of copyright law in the United States. Boyle 2008 clearly shares Patterson and Lindberg’s perspective, but he changes the terms of the debate, arguing for a copyright system that promotes a “cultural environmentalism.” Patry 2007–2012 is less ideologically positioned than the other works; it is a reference work rather than a history or introduction to the topic. Both Johns 2009 and Ginsburg 1990 are comparative works. Johns 2009 traces the history of piracy in the United States and the United Kingdom, and Ginsburg 1990 compares US and French copyright.

• Boyle, James. The Public Domain: Enclosing the Commons of the Mind. New Haven, CT: Yale University Press, 2008.

  In The Public Domain, one of the most influential thinkers on the subject of intellectual property offers an overview of the field. The book is largely historical, and it elegantly advances Boyle’s position that copyright should be thought of as a law that governs the cultural environment. As we take a long view of preserving our natural environment, we should think of intellectual property’s long-term effects on our cultural environment.

• Ginsburg, Jane. “A Tale of Two Copyrights: Literary Property in Revolutionary France and America.” Tulane Law Review 64.5 (May 1990): 991–1031.

  We tend to think of American and Continental European copyright law as being very different. Continental copyright law stems from a belief in the inalienable rights of authors; American copyright law is an artificial and limited legislative monopoly. Ginsburg’s meticulous research shows that the two legal systems started to diverge only in the 19th century. Available online for purchase or by subscription.

• Goldstein, Paul. Copyright’s Highway: From Gutenberg to the Celestial Jukebox. Stanford, CA: Stanford University Press, 2003.

  Goldstein, a copyright scholar from Stanford, is a strong proponent of artists’ rights. This book is both a history of copyright and an account of important cases with which he has been involved. It includes close analyses of the Sony Betamax case and the French case over the colorization of The Asphalt Jungle (1950), among many others.

• Johns, Adrian. Piracy: The Intellectual Property Wars from Gutenberg to Gates. Chicago: University of Chicago Press, 2009.

  Johns is a historian of science and book culture. This is his ambitious cultural history of piracy covering everything from early book piracy to file sharing. He shows that most debates about control of information and locking down home uses of copyrighted material have deep antecedents.

• Patry, William F. Patry on Copyright. Eagan, MN: Thomson West, 2007–2012.

  This is perhaps the most comprehensive history and analysis of American copyright law. In the form of a legal treatise, it offers an account of everything from the British precursors of American copyright law to the most recent statutes and case law. It contains very detailed legislative histories of many copyright statutes and accounts of landmark cases.

• Patterson, L. Ray, and Stanley W. Lindberg. The Nature of Copyright: A Law of User’s Rights. Athens, GA: University of Georgia Press, 1991.

  An influential approach to the history and theory of copyright law. Patterson and Lindberg argue that copyright was primarily designed to enrich the public domain and aid those who need to use protected works. Its benefit to authors and corporations is a byproduct of these primary goals.

• Samuels, Edward. The Illustrated Story of Copyright. New York: Thomas Dunne, 2000.

  A very clearly written and well-illustrated history of copyright law. Samuels focuses on the impact of new technologies on copyright, including film and television. He also discusses many important functions of copyright, including the regulation of adaptations, fair use, and the legal line between protectable expression and unprotectable ideas.

• Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York University Press, 2001.

  A cultural history of copyright that examines the origins of literary, film, music, and Internet copyright. The chapter on film looks at the invention of film, D. W. Griffith’s copyright entanglements, and later cases involving film adaptation.