The first part of my series can be found here
The first ever copyright dispute was the Battle of Cúl Dreimhne that took place in Ireland in 555AD and had approximately 3,000 casualties. Today, the battle is no less heated but with lesser casualty but involved much more money.
Understanding the Basic Framework
The first distinction that I had made in my previous post is understand the inalienable right of the author which is the moral right and the commercial right (the right to sell and allow another person to profit from the creative content). Once that distinction is clear, it is much easier to move ahead and proceed with the next discussion.
In Malaysia, the right of an author or creator is largely protected by Copyright Act 1987. This piece of legislation is very much similar in Commonwealth jurisdiction. The basic idea is this, if infringement of copyright permeates the creative industry, there will be no more content provider that will be willing to offer their work for publication. There must be some form of protection that will guarantee that their rights are safeguarded.
Section 7 of the Copyright Act 1987 lists down the categories of work that is entitled to protection and they are:-
- (1) Subject to this section, the following works shall be eligible for
copyright:
(a) literary works;
(b) musical works;
(c) artistic works;
(d) films;
(e) sound recordings; and
(f) broadcasts.
So for the artists, their work would fall under artistic works. However this piece of legislation must not be confused with the fact that a simple idea is hatched, conveyed to a friend and that friend uses that idea, there is no protection because to be entitled for protection the following tenets must be fulfilled:-
- Sufficient effort must be expanded to make the work original in character
- It must be written down, recorded or reduced to a written form.
Hence a floating idea is not entitled to protection.
There is another category of works called derivative works...for example if someone take an original idea and create a new transformation or adaptation, that works is also entitled to be protected. The most common of such works are musical arrangement that may slightly deviate from the original works.
Nature of Copyright in Artistic Work
In America there is the doctrine of fair use. In Malaysia under the Copyright Act a piece of work can be protected but there are categories of use that will not infringe that right. This is particularly so when the work is for the purposes of research, private study, criticism and review. But there must be acknowledgment of the title of the work and its authorship.
There are a few scenarios which can be derived and would not be accorded with the protection.
An artist creates a parody of Batman which is a licensed and copyrighted property by DC Comics. (no infringement)
An artist creates a caricature of Homer Simpson from The Simpsons (no infringement)
A reproduction of an exact copy of Mona Lisa (no infringement because the work is permanently situated in a place where it can be viewed by the public)
Where the work is produced as a reference in a documentary about art or used in classroom (no infringement).
Basic Guideline to Protecting a Right
If a caricature or parody is created of a copyrighted character, there is no infringement.
If the work of an artist is produced to be criticised, there is no infringment.
A fleeting idea cannot be infringed. But an idea reduced into a written form and has some degree of permanence can be protected.
Work that is meant to be generally accessible cannot be protected. For instance a sculpture in the a park, if reproduced by another person, is not subject to infringement of rights.
The next blog we shall consider how rights are protected and the result of infringement and some bigger cases in our time relating to Intellectual Rights.
