There is a basic philosophy behind protecting copyright. Those who hope to make a profit from their creations are much more likely to be successful if others are prohibited from using the creations without paying for them. Copyright laws are created to encourage authors to write more with an assurance that their material cannot be illegally reproduced or altered. The U.S. Constitution states that Congress has the authority to "promote the progress of science and useful arts, by securing for limited times to authors ... the exclusive right to their respective writings."

     Most countries have some form of copyright law. In the United States, the 1976 Copyright Act is the law that provides much of the detail. There are a number of international copyright treaties and conventions, but there is not a single worldwide "copyright registration" that will protect an author's work globally. The United States is a member of the Berne Convention and the Universal Copyright Convention, which recognize copyrights of residents of member nations. Some countries (most notably China) have been criticized for their unwillingness to enforce copyright claims in their country, allowing unlimited copying without compensating the author.

     Copyright exists the moment an author creates a work in a tangible form, but without providing notice and registering the work, the author stands little chance of enforcing the copyright. Notice requires that the author provide the word copyright or the international symbol ©, the name of the copyright holder, and the date of the copyright. For audio recordings (whether CDs, cassettes, or vinyl), the© symbol is replaced with a ®, for "phonorecord." Without a notice, a copyright infringer may be able to claim an "innocent infringement." The infringer may successfully claim to have been unaware that the work was copyrighted or may claim not to have known whom to approach to request copyright permission.

     Registration with the Copyright Office is a relatively simple procedure. Although registration is not required to have copyright, trying to make a claim in court that copyright has been violated is impossible without registration. In order to register copyright, an author submits a form (available on-line), a $30 registration fee, and two copies of the work. Although registration can be done months or years after a work is created, there are distinct legal advantages to registering the work within three months of its creation. Only those promptly registering copyright are entitled to recover attorney's fees and statutory damages in a lawsuit.

Radio and Copyright

     Radio stations use copyrighted material that they do not own every day. Almost all of the music they play was written by someone other than a station employee. Radio stations are required to pay royalties to the authors of the music they play. To simplify the process, performing rights organizations such as the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music Incorporated (BMI) were created to collect royalties from stations and to distribute the royalties equitably among authors. Stations pay annual blanket licensing fees, which cover the cost of playing any songs from those libraries. The fees are based on the benefit each station derives from the copyrighted music. Highly profitable stations that play a lot of music in large markets are charged much more than are all-talk stations in small markets. Those fees are then equitably divided by the rights organizations based on their own determination of which authors' works were most used.

     Not everything a radio station does is covered by music licensing fees. The annual fees paid to performing rights organizations only cover performances of the music. Those organizations do not collect fees for other uses of copyrighted material, such as reproducing the work or creating some kind of adaptation. If a radio station uses music in producing a commercial, that is not a performance but is instead the creation of a new, derivative work. Using a piece of copyrighted music in this way without permission of the author is a copyright violation. In order to comply with copyright law, stations of advertisers that use copyrighted music in their commercials need to seek the permission of the copyright holder, usually the author. From that point, it is all a matter of contract negotiation. The author can allow the use for a limited time, charge any fee for the use, or prohibit the use altogether.

     Just as a radio station has to pay copyright fees for the music it plays, others might be obligated to pay copyright fees for playing music, even if the music comes from a radio station that has already paid copyright fees. Because the premise of copyright is to reward authors when others benefit from their work, retail establishments, restaurants, and other venues must pay for the use of copyrighted music. If a restaurant plays music that enhances the atmosphere, thereby contributing to its profitability, the restaurant might be responsible for paying a fee for the use of the music. In 1998 the U.S. Congress amended the law to exempt smaller establishments. Retail establishments under 2,000 gross square feet and restaurants under 3,750 gross square feet are exempt from having to pay copyright fees. Larger establishments are expected to pay fees much as a radio station would.

Limitations on Copyright

     Copyright does not last forever. Under earlier copyright laws, rights were protected for 28 years and could be renewed for an additional 28 years. In 1978 the law was modified to protect copyright for the life of the author plus 50 years. A more recent modification extended the protection. For works created since 1978, copyright lasts for the life of the author plus 70 years. Because the legislation had to account for changes in existing copyright, duration can be somewhat more complicated for pre-1978 works. Works created before 1978 are generally protected for 95 years, with some rare exceptions (e.g., if a work was created in 1940 and not reregistered 28 years later). Because copyright endures beyond the life of the author, it can be willed just like any other piece of real property that the author owns. In fact, authors can sell or give away their copyrights before death, but the duration is still based on the author's life plus 70 years.

     There are instances in which copyright is held not by an individual but rather by a corporation. It would be impossible to calculate the life of the author plus 70 years, because the corporation might go on indefinitely. For these works for hire, copyright lasts for 95 years from publication or 120 years from creation, whichever is greater.

     There are times when copyright owners have no control over the works they've created. The doctrine of fair use allows for certain types of uses without permission or payment to the copyright holder. In determining whether a use is fair, four elements need to be considered: (1) the nature of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the original that is used, and (4) the impact of the use on the potential market for the original.

Nature of the Use

     Section 107 of the Copyright Act of 1976 states that the fair use of copyrighted works "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." A 1994 U.S. Supreme Court decision determined that parody is also an acceptable purpose for a fair use. The nature of the use can be the sole factor distinguishing a fair use from a copyright infringement. For example, a radio station using a piece of music as the sound bed for a commercial would be infringing copyright. The same piece of music used by the same station as a sound bed for a news story would be a fair use, because news reporting is considered a fair use and so the use of the song as a news story element would be protected. Ironically, the same song used by the same station, if used as production music (e.g., as the theme song for the newscast) would be a copyright infringement. The nature of the use is an important consideration.

Nature of the Copyrighted Work

     Authors who don't publish their works have a greater interest in keeping their works out of public sight. A poet or composer who creates work but prefers not to share it has greater protection from a claim of fair use than does a poet or composer who constantly tries to reach the largest possible audience. It would be difficult to claim a fair use of an unpublished work, even if the nature of the use were acceptable.

Amount and Substantiality Used

     In order for use of copyrighted material to be considered fair, the amount of the original used should not be excessive. Unfortunately, no legally defined line separates the quantity considered fair from the amount that would not be considered fair. What we do know is that the judgment is made based both on qualitative and quantitative information. Although copying an entire work is not likely to be a fair use, use of just a small percentage of an original might be determined unfair if the use contains the essential part of the copyrighted work. The U.S. Supreme Court ruled that the Nation magazine infringed the copyright of Gerald Ford's memoirs when it published "only" a few hundred words from the original: the portion published was at the heart of what people most wanted to know (regarding Ford's dealings with Nixon) and was therefore significant.

Impact on the Potential Market

     This is probably the most important consideration in determining whether a use is fair. Uses that harm authors by denying them profits are not likely to be considered fair. The issue is not whether the user profits, but rather whether the copyright owner's profit is reduced. Not-for-profit educational radio stations still must pay to use copyrighted music on the air, even though no one profits from airing the music. Musical parodies are protected in part because they do not harm the market for the original copyrighted work. The U.S. Supreme Court ruled that a 2 Live Crew parody of Roy Orbison's "Pretty Woman" was a fair use, stating in its reasoning that it could not imagine a potential purchaser trying to choose between the two versions.

     An area of fair use where there is still some uncertainty is in home recording. A U.S. Supreme Court decision in 1984 held that video recording of television programs for noncommer­cial, in-home viewing was a fair use. That decision, however, essentially authorized "time shifting" of TV programs, that is, the taping of a program in order to watch it later. The Court never really addressed the issue of whether an individual would be allowed to amass a collection of videotaped programs as a fair use. The issue will undoubtedly be revisited as advancing digital technology makes high-quality reproductions easier to obtain. The recording industry already fears the possible explosion of MP3 digital audio recordings, many of which are made without compensation to the author. Their reproduction and distribution is made more rapid by the expansion of the internet and the increase of more advanced home computers. If in-home recording is a fair use, and individuals can access thousands of audio files, the recording industry could be severely affected.

Enforcement

     In terms of enforcement, the government has no agency charged with seeking out copyright infringements. It is the responsibility of individual authors to protect their own copyrights, and for this reason many copyright infringements are never punished. In the case of music, performing rights organizations seek out copyright violators and take legal action through the courts, if necessary. Commercial studios, publishing houses, and other industries with a vested interest in protecting their copyrights are active in seeking out violators. Major violations are easily caught: ASCAP and BMI know which stations pay their fees and can monitor those that don't and charge them with a violation. Disney Studios is likely to find out if someone releases a film that is substantially similar to one of their own. But there are thousands of small venues where music is performed, hundreds of thousands of photocopiers, and millions of tape recorders. It is impossible for copyright owners to be able to enforce their rights in every possible arena. This does not mean, however, that the laws are any less real. Violations, no matter how small, can still be legally prosecuted. An appropriate analogy might be a traffic light in a small town at 3:oo A.M. If the light is red, it is still illegal to go. Anyone who does go through the red light is not likely to be caught. Nonetheless, the law still exists. The same is true of copyright. A number of copyright violations are unlikely to be discovered, but they are still violations and can be punished if discovered.