|“||A copyright law that can work in practice only if unenforced is not a sound copyright law. It is a law that would create uncertainty, would bring about selective enforcement, and, if widely unenforced, would breed disrespect for the law itself.||”|
- -- Justice Breyer in Kirtsaeng v. Wiley, 133 S. Ct. 1351, 1366 (2013) (full-text).
|“||The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people in that it will stimulate writing and invention to give some bonus to authors and inventors.||”|
Copyright is a form of intellectual property protection provided by the laws of the United States (Title 17 of the United States Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. Copyright protection wholly statutory. There is no copyright protection except as provided by the current Copyright Act.
Copyright protection is available to both published works and unpublished works. Copyright is secured automatically when the work is created, and a work is created when it is fixed in a copy or phonorecord for the first time.
Development of U.S. copyright law
Much of the structure and basis for American law is derived from its British legal antecedents. After the introduction of the printing press in England in the late 1400s, the Crown's first response was to control what writings were printed or copied.
This system collapsed when the company failed to exercise discretion as censor, but used its monopoly power to set high prices. Parliament's response in 1695 was to allow the Stationers' copyrights to expire, but this resulted in a period of anarchical publication. Responsive to the Stationers’ petitions to reestablish order in the book trade, but opposed to excessive monopolies, the Parliament passed legislation in 1709 that was supposed to meet both concerns. This was the Statute of Anne. Characterized as the first modern copyright law, it served as the model for copyright law in the United States, and all other English-speaking countries.
Although the Statute of Anne resembled the Stationers' copyright in some ways, it was designed to end their monopoly of the book trade and included several provisions to assure this end. Copyright would no longer be exclusive; the statute made it available to everyone. Moreover, the period of copyright was limited to 14 years. The copyright was renewable for an additional 14 years if the author was still alive. After the expiration of the copyright, the writing became part of the public domain, available for use by anyone.
Entitled "A Bill for the Encouragement of Learning and for Securing the Property of Copies of Books to the Rightful Owners Thereof," the new statute stated clearly that copyright should benefit authors. The law advanced the idea of authors' rights, absent from the Stationers' copyright, although authors had previously been paid for their works.
After severing political ties with Great Britain, the former American colonies sought means to secure copyright laws. In 1783, the Continental Congress passed a resolution encouraging the various States to enact copyright legislation. All of the States except Delaware enacted some form of copyright statute, although the various State laws differed greatly.
Because of the differences in the State copyright laws and the ensuing difficulties, the Framers of the Constitution, notably James Madison, asserted that the copyright power should be conferred upon the legislative branch. This concept was ultimately adopted, and Congress was granted the right to regulate copyright.
The First Congress in 1790 enacted the first federal Copyright Act. This legislation provided for the protection of authors’ rights. Commentators have written that the central concept of this statute is that copyright is a grant made by a government and a statutory privilege, not a right. The statute was substantially revised in 1831 to add copyright coverage to musical compositions and to extend the term and scope of copyright.
A second general revision of copyright law in 1870 designated the Library of Congress as the location for administration of the copyright law, including the deposit and registration requirements. This legislation extended copyright protection to artistic works.
The third general revision of American copyright law in 1909 permitted copyright registration of certain types of unpublished works. The 1909 legislation also changed the duration of copyright and extended copyright renewal from 14 to 28 years. A 1971 amendment extended copyright protection to certain sound recordings.
Purpose of copyright
The U.S. Constitution provides that Congress has 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." To the framers of the Constitution, "Science" meant knowledge or learning. Copyright was intended to serve as "an engine of free expression." 
The framers of the Constitution did not discuss this clause at any length prior to or after its adoption. The purpose of the clause was described in the Federalist Papers by James Madison:
|“||The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.||”|
The Constitution outlines both the goal that Congress may try to achieve (to promote the progress of science and useful arts) and the means by which they may accomplish it (by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries).
The Supreme Court has often spoken about the purpose of copyright:
|“||[I]t should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.||”|
|“||The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right in their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.||”|
|“||The copyright law, like the patent statutes, makes reward to the owner a secondary consideration . . . . It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius.||”|
|“||The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings, . . . but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings . . . . Not primarily for the benefit of the author, but primarily for the benefit of the public such rights are given. Not that any particular class of citizens, however worthy, may benefit, but because the policy is believed to be for the benefit of the great body of people, in that it will stimulate writing and invention to give some bonus to authors and inventors.||”|
By granting authors exclusive rights, the authors receive the benefit of economic rewards and the public receives the benefit of literature, music and other creative works that might not otherwise be created or disseminated. The public also benefits from the limited scope and duration of the rights granted. The free flow of ideas is promoted by the denial of protection for facts and ideas. The granting of exclusive rights to the author "does not preclude others from using the ideas or information revealed by the author's work."
Maintaining an appropriate balance between protecting works and incentives for creators of works, on the one hand, and disseminating knowledge and information to the public, on the other, is a constant theme throughout the history of copyright law. While the "immediate effect of our copyright law is to secure a fair return for an author's creative labor," its ultimate goal is "to stimulate artistic creativity for the general public good." As noted by UCLA Law Professor Neil Netanel:
|“||Copyright law strikes a precarious balance. To encourage authors to create and disseminate original expression, it accords them a bundle of proprietary rights in their works. But to promote public education and creative exchange, it invites audiences and subsequent authors to use existing works in every conceivable manner that falls outside the province of the copyright owner's exclusive rights.||”|
Copyright law imposes no obligation upon copyright owners to make their works available. While it is hoped that the potential economic benefits to doing so will induce them, copyright owners are not obligated to provide access to their works — either during the term of protection or after. Hence, unpublished works never distributed to the public are granted as much (if not more) protection as published works. However, once an author publishes a work, copies of the work must be deposited with the Library of Congress for the benefit of the public.
Congressional power to enact copyright laws
Congress's power to bestow copyrights is broad. But it is not boundless. The Supreme Court has recognized that the First Amendment can limit Congress's power under the Copyright Clause. The Court has emphasized, however, that "copyright's built-in First Amendment accommodations" — the idea/expression dichotomy and the fair use defense — "generally protect the public's First Amendment interest in copyrighted works."
Although these built-in free speech safeguards will ordinarily insulate legislation from First Amendment review, the Eldred Court indicated that such review is warranted when an act of Congress has "altered the traditional contours of copyright protection." The Court did not define the "traditional contours of copyright protection."
Requirements for copyright
Copyright law protects all "original works of authorship fixed in any tangible medium of expression. . . ." The subject matter of copyright is defined by two requirements, originality and fixation: a work must be an original, creative expression of an idea or concept, and it must be recorded in tangible form. Thus copyright law protects a novel or poem written on paper or typed in a computer, a song recorded in a studio or written on sheet music, a sculpture modeled in clay or bronze, or a computer program on a PC's hard disk.
Exclusive right of copyright owner
The Copyright Act does not give a copyright owner control over all uses of his work, but instead grants "'exclusive' rights to use and to authorize the use of his work” in the specific ways enumerated in the statute.
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, and sculptural works, including the individual images of a motion picture or other audiovisual work; and
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
Generally, a party desiring to exercise one or more of these exclusive rights must either (1) obtain the permission of the copyright holder (usually granted in the form of a license agreement that establishes conditions of use and an amount of monetary compensation known as a royalty fee); (2) comply with the terms of compulsory licenses established by law; or (3) assert that such use falls within the scope of certain statutory limitations on the exclusive rights such as the “fair use” doctrine — but the validity of such claim may be subject to the judgment of a federal court. The unauthorized exercise of one or more[[ of the exclusive rights of the copyright holder constitutes copyright infringement.
Copyright protection arises automatically, without the need of the proprietor to take any formal steps. However, authors who register their works with the U.S. Copyright Office, and then place a notice of copyright on copies of their works, are afforded certain advantages when enforcing their copyrights.
As with the other intellectual property rights, copyrights do not enforce themselves. Copyright owners bear responsibility for monitoring its competitors to determine whether they are using the copyrighted work or not. Copyright owners who wish to compel others to observe their intellectual property rights must usually commence litigation in the courts.
Criminal copyright infringement
Criminal copyright infringement is a felony punishable by up to 3 years imprisonment and a $250,000 fine when a defendant willfully reproduces or distributes at least one or more copies or phonorecords or one or more copyrighted works with a total retail value of more than $2,500 within a 180-day period. The maximum penalty rises to 5 years imprisonment if the defendant acted “for purposes of commercial advantage or private financial gain.” Misdemeanor copyright infringement occurs where the value exceeds $1,000 but is equal to, or less than $2,500. In applying the criminal copyright statutes, civil precedents are often helpful.
Pre-release piracy, i.e., willful infringement "by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution," is a felony punishable by up to three years’ imprisonment and a $250,000 fine. The maximum penalty rises to five years' imprisonment if the defendant also acted "for purposes of commercial advantage or private financial gain."
Limitations on copyright rights
These rights, however, are not unlimited in scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights. In some cases, these limitations are specified exemptions from copyright liability. One major limitation is the doctrine of fair use, which is given a statutory basis in section 107 of the 1976 Copyright Act. In other instances, the limitation takes the form of a compulsory license under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions.
In copyright cases, the statute of limitationss for initiating a civil action is within three years after the claim accrues, while a criminal proceeding must be commenced within five years after the cause of action arises.
Categories excluded from copyright protection
Not everything can be protected by copyright law. Categories of material that generally are not eligible for federal copyright protection including:
- Works that have not been fixed in a tangible medium of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded);
- Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents (these may be protected by trademark law if they meet certain criteria);
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration;;
- Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources); and
- Works created by Federal employees in the course of their official duties. If a government employee jointly develops copyrightable material with a third party such as a contractor, and in the absence of any contractual arrangement pertaining to copyright rights, the general view is that the government and the third party jointly own the copyright on the entire work. However, if the individual contributions to the work are separable and clearly identified, then the government and the third party each own the copyright on their own unique portion of the work.
In designing new laws or policies on copyright law, the government will have to contend with a number of uncertainties. These include:
- The peculiar characteristics of information as a commodity. Information has special characteristics that distinguish it from other economic commodities and confound our understanding of how information markets work. Information is, for example, simultaneously an economic commodity and a societal resource. Since it is inherently leaky; it is hard to own or control. And although costly to produce, information is inexpensive to copy. Given these unique properties, economists are only beginning to understand the role of information in the market place. They have yet to determine, for example, how to measure value or identify when value is added to an information-based product or service — both needed to resolve issues of derivative use.
- The increased complexity of the copyright system. The new technologies are increasing the complexity of copyright law, and so creating new uncertainties for policy makers. The number and variety of information providers, kinds of information-based products and services, ways of using information, and types of information users are proliferating, giving rise to new relationships among the parties involved. These changes are occurring in very unpredictable ways.
- The changing nature of the technology. The electronic age has just begun. Today, new technologies are multiplying the kinds of media that can be used to package, store, deliver, and use intellectual works. Over the long run, however, the increased convergence of information and communication technologies may reverse this trend. Packaged, stored, and delivered electronically, text, sound, and images will all be interchangeable. Our understanding of how and when such changes will take place, and of how they might affect the intellectual property system, is replete with uncertainty.
- H.R. Rep. No. 2222, 60th Cong., 2d Sess. (Report on the Copyright Act of 1909).
- Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984) (full-text).
- The printing press brought about major social, economic, and political changes. By greatly increasing the speed and reducing the costs of reproduction, printing made it much easier to disseminate ideas. By increasing the general level of literacy, it also made more people susceptible to, and eager to partake of, such ideas. As a result, the market for information products and literary works grew, and their economic value was greatly enhanced. In fact, one might say that printing was the growth industry of the time. Later, as books and manuscripts ceased to be isolated on monestary shelves, and became available to many people simultaneously, they began to serve as an important forum for public discussion.
- Occurring at the time of religious and political turmoil, printing presented the monarchs of Europe with both a political threat and an economic opportunity. The law of copyright was developed to deal with this threat, as well as to take advantage of this opportunity.
- These acts included the Star Chamber Decrees of 1566, 1586, and 1637, as well as three acts passed in the 1640s during the Interregnum, and the Licensing Act of 1692. Together, they provided for such things as the granting of patents for specified works, the confinement of printing to authorized presses, the licensing of books before publication, and the use of trade organizations and special government agencies for enforcement. Benjamin Kaplan, An Unhurried View of Copyright (1967)
- The Stationers aggressively appealed to Parliament to reestablish order with a new copyright law. As Lord Camden later described it:
“ They — the stationers (whose property by that time) consisted of all the literature of the Kingdom, for they had contrived to get all the copies into their own hands — came up to Parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn, they brought with them their wives and children to excite compassion, and induce Parliament to grant them a statutory security. ”
Donaldson v. Beckett (H.L. 1774), 4 Burr. 2408, 98 Eng. Rep. 257 (1774) as reported in 17 Hansard, Parliamentary History of England, 953, 995 (1813)(full-text).
- Lyman Ray Patterson, Copyright in Historical Perspective 183 (1968).
- Id. at 192-93.
- U.S. Constitution, art. I, §8, cl. 8.
- Act of May 31, 1790, ch. 15, 1 Stat. 124.
- See, e.g., Patterson, at 198-99.
- Act of Feb. 3, 1831, ch. 16, 4 Stat. 436.
- Act of July 8, 1870, C. 230, 16 Stat. 198.
- Act of March 4, 1909, C. 320, 35 Stat. 1075.
- Pub. L. No. 92-140, Oct. 15, 1971, 85 Stat. 391.
- Pub. L. No. 94-553, Oct. 19, 1976, 90 Stat. 2541, codified at 17 U.S.C. §101 et seq.
- See U.S. Const., art. I, § 8, cl. 8.
- Eldred v. Ashcroft, 537 U.S. 186, 242-43 (2003) (full-text) (Breyer, J., dissenting) (citing Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective 125-26 (2002)) (full-text).
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (full-text).
- The Federalist No. 43 (James Madison).
- Goldstein v. California, 412 U.S. 546, 555 (1973) (full-text).
- Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (full-text).
- Feist Publication, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50 (1991) (citations omitted).
- United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948) (full-text).
- H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7 (1909).
- House Report, at 56, reprinted in 1976 U.S.C.C.A.N. 5669.
- See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (full-text).
- Id. Put another way, "the monopoly created by copyright thus rewards the individual author in order to benefit the public." Harper & Row, 471 U.S. at 546.
- Neil Weinstock Netanel, "Copyright and a Democratic Civil Society," 106 Yale L.J. 283, 285 (1996). Independent Producers Grp. v. Library of Congress, 759 F.3d 100 (D.C. Cir. 2014) (full-text) ("Congress adopted the Copyright Act to balance two often competing 'communications policies grounded in the Constitution — ensuring the protection of intellectual property and encouraging the free flow of information' to the public.").
- See Eldred v. Ashcroft, 537 U.S. 186, 205 (2003) ("[I]t is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors . . . in order to give the public appropriate access to their work product.") (internal quotation marks omitted).
- Id. at 219-21 (indicating that copyright acts are not "categorically immune from challenges under the First Amendment") (internal quotation marks omitted).
- See 17 U.S.C. §102(b); Baker v. Selden, 101 U.S. 99 (1879).
- 17 U.S.C. § 107; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).
- Id. at 219-20.
- Id. at 221.
- 17 U.S.C. §102(a).
- Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 432-33 (1984).
- 17 U.S.C. §107.
- Id. §501.
- 17 U.S.C. §§408-12.
- Id. §§401-06.
- See 17 U.S.C. §506(a); 18 U.S.C. §2319.
- See United States v. Wise, 550 F.2d 1180, 1189 n.14 (9th Cir. 1977) (full-text) (noting "general principle in copyright law of looking to civil authority for guidance in criminal cases"); United States v. Manzer, 69 F.3d 222, 227 (8th Cir. 1995) (full-text) (same); United States v. Cross, 816 F.2d 297, 303 (7th Cir. 1987) (full-text) (same, with respect to jury instructions); Kelly v. L.L. Cool J, 145 F.R.D. 32, 39 (S.D.N.Y. 1992) (noting that conduct that does not support a civil action for infringement cannot constitute criminal infringement); 4 Melville Nimmer & David Nimmer, Nimmer on Copyright §15.01.
- 17 U.S.C. §506(a)(1)(C) and 18 U.S.C. §2319(d).
- 17 U.S.C. §507.
- 37 C.F.R. §202.1(a) (2004).
- An important limitation of copyright is that it protects only the creative expression of an idea — but not the idea itself. 17 U.S.C. §102(b) ("In no case does copyright protection . . . extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery. . . ."); see also Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. at 340, 344-45 (1991); Whelan Assoc. v. Jaslow Dental Lab., 797 F.2d 1222 (3d Cir. 1986). Novel ideas, methods, and processes may enjoy protection under patent or trade secret law, but are not copyrightable.
- Section 102(b) of the 1976 Copyright Act specifically provides that: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. §102(b).
- Defense Acquisition University, ACQuipedia, Intellectual Property and Data Rights (full-text).
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