Copyright law

Definition Body of statutes and common law that determines when creative works can be copyrighted and the enforceable rights of the copyright owner

Copyright law, which promotes and protects creative expression by rewarding authors and artists for their efforts with exclusive legal rights to control the use of their work, has played an important role in the development of the media, publishing, and entertainment industries.

Copyright is a form of legal protection for authors and creators of original expressive works. Under law, the types of works protected by copyright are literary, musical, dramatic, artistic, choreographic, architectural, and audiovisual works, as well as sound recordings. In no case does copyright protection extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is explained or illustrated; it applies only to an original expression of an idea or concept. For instance, the idea of two people falling in love cannot by copyrighted, but a particular expression of that idea in the form of an original short story, painting, or song can be.

Origins

The origin of American copyright law extends back to England. The history of copyright has been closely tied to the development of technology and business involving entertainment and information goods. When the movable-type printing press was introduced to England by William Caxton in 1476, it became possible to reproduce works for mass circulation. Quite naturally, the interests of printers and authors in those works came to the forefront. In 1556, the Stationers’ Company was created by royal decree to control the printing industry. Printing of all published works became subject to the oversight of the Church of England and the government, and the stationers (printers and booksellers), rather than authors, had the sole right to print and publish works in perpetuity. In 1710, however, Parliament enacted the Statute of Anne, which ended the stationers’ monopoly and, for the first time, recognized the exclusive right of authors to control the printing of their works for a limited period of fourteen years, with the possibility of a fourteen-year renewal term.

English copyright law was later exported to the American colonies. After independence, all of the states except Delaware passed copyright laws modeled on the Statute of Anne. These laws were limited because they applied only within each state, and authors had to register their works in each state and comply with a variety of state laws that often contained conflicting requirements. By the time that the drafters of the Constitution met, they recognized the importance of creating a uniform, national body of copyright law for the United States. Article 1, section 8, clause 8, of the US Constitution empowers Congress 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."

Based on this constitutional grant of power, the first Congress enacted the first federal copyright statute in 1790. This law granted copyright protection to the authors of maps, books, and charts for fourteen years. Authors were required to register their work with the government, publish notice of the registration, and deposit a copy of the work with the secretary of state within six months of publication. In addition, authors were also allowed to renew their copyright for another fourteen years.

As the American economy expanded throughout the nineteenth century, the scope of copyright protection was gradually broadened as well. In 1802, prints became protected by copyright, and in 1831, musical compositions were included. Dramatic compositions, and the right to publicly perform them, were added in 1856. The extension of copyright protection also paralleled the invention of new technologies and media; for instance, Congress extended copyright to photographs in 1865. By 1870, paintings, drawings, sculptures, and models and designs in fine arts were also protected. Other amendments during this period extended the initial copyright term to twenty-eight years, with a possible renewal for an additional fourteen years, and invested the Library of Congress with the administration of the copyright registration system and made it the repository of copyright deposits. In 1886 the Berne Convention provided an international agreement for copyright law, with all countries party to the convention agreeing to honor each other's copyrights.

By 1909, Congress had decided to pass a new and comprehensive copyright statute that would incorporate all of its earlier amendments to the 1790 copyright statute and eliminate the inconsistencies in its provisions. The Copyright Act of 1909 made several important improvements to prior law. For example, under the new law, the term of copyright protection began with the publication of the work with a notice of copyright (such as or "Copr."), rather than with registration of the work. This concept had first been introduced at the Berne Convention. Moreover, renewal of the copyright term was extended to twenty-eight years, thereby increasing the maximum duration of copyright protection to fifty-six years with renewal.

Once again, technological developments and the growth of the US economy in new directions during the twentieth century began to push the limits of copyright law. Inventions such as motion pictures, phonographs, radio broadcasting, and television, along with the emergence of new media forms and the entertainment industry, made the 1909 statute increasingly obsolete. Almost immediately after its enactment, it had to be amended to include motion pictures; a later amendment extended copyright protection to sound recordings. Moreover, the advent of international markets for American authors and creators made it imperative that US law conform to the standards set out in various international copyright treaties. In 1976, therefore, the Copyright Act of 1909 was repealed and replaced by a new statute.

The Statute of 1976

The Copyright Act of 1976 set forth two important requirements for copyright protection. First, the work must be fixed in a tangible medium of expression. This means that the author or artist must record the work in a material, physical form that is sufficiently stable and permanent to last more than a short time. Examples include a sculpture fixed in marble, a poem written on a sheet of paper, a song recorded on a compact disc, a video recording of dance choreography, and a computer program stored in a computer’s hard drive. By contrast, works such as a sand or ice sculpture or a picture created by skywriting would be too transient and unstable to be considered fixed. Similarly, live performances that are purely impromptu or that are not recorded are not fixed.

The second principal requirement for copyright protection is that the work be original, meaning that it must have been independently and directly created by the author or artist, and it must reveal some minimal level of creativity. The standard for originality is not particularly high, and it is not necessary that the work be novel, unique, or aesthetically pleasing. In fact, a work may be considered original even if it closely resembles another work or several different works. It must simply be apparent that the author or artist made some minimally creative choices in crafting or composing the work.

Under the Copyright Act of 1976, ownership of a copyright in a work vests initially in its actual creator, who owns all of the exclusive rights afforded by copyright protection. In some cases, a work is created by more than one author or artist. When a work is created by two or more authors who intend that their separate contributions be merged together into a single, complete work, the copyright is shared by the co-owners of the joint work. Each co-owner is entitled to exercise all of the exclusive rights, or to license other persons to exercise those rights.

However, there are two situations in which the actual creator of the work is not the owner of the copyright. If an employee (rather than an independent contractor) prepares a work that can be copyrighted within the scope of their employment, then the employer is the owner of the resulting copyright. Usually, an employee who creates a work as part of their job, at the direction of their employer and for work-related purposes, has created the work within the scope of employment. The other situation is when the work has been specially commissioned and the parties have agreed in writing that the work is being made for hire. Only certain types of works made for hire may be specially commissioned, including contributions to collections, parts of movies or audiovisual works, translations, supplementary works such as prefaces and illustrations, compilations, and instructional texts and tests.

Initially, the 1976 statute provided for a term of copyright protection consisting of the author’s life plus fifty years beyond death, but a 1998 amendment extended the term to the remainder of the author’s life plus seventy years after death. This allows the author or artist’s family to benefit from his or her creative efforts for a longer period of time. In a work made for hire, the copyright lasts for a term of 95 years from the year of its first publication or 120 years from the year of its creation, whichever comes first.

Copyright Holder Rights

Under the Copyright Act, ownership of a valid copyright confers five exclusive rights: reproduction right, adaptation right, public distribution right, public performance right, and public display right. Accordingly, copyright owners have the exclusive right to reproduce their works by making copies or phonorecords (i.e., sound recordings on a material medium) of them, as well as the exclusive right to make adaptations or derivatives of their works. A derivative work is one that is based on or derived from another work by means of reformatting, transforming, or revision of the earlier work. Examples of derivative works include a translation of a poem from one language to another, a rearrangement of a sonata, the production of a movie based on a novel, and a digitization of print photograph.

Copyright owners also have the exclusive right to distribute copies of their works to the public through sales, rentals, leases, or lending. The distribution right often goes hand in hand with the reproduction right, and in many cases, unauthorized reproductions only become known to the copyright owner once multiple copies have been distributed publicly. In addition, the public display and performance rights give copyright owners the exclusive right to show their work to members of the public. The Copyright Act broadly defines "publicly" to include places open to the public or where a large number of persons outside of the normal circle of a family and its social acquaintances are gathered, such as film screenings in a theater, music performances at a concert hall, museum exhibitions, or public transmissions such as television broadcasting or video streaming over the Internet to a public location.

The Copyright Act of 1976 made a critical change as to when copyright protection begins. The 1909 statute had required the work to be published with a copyright notice affixed before copyright was vested. Under the 1976 statute, copyright ownership vests as soon as an original work of authorship is fixed; the term of protection begins automatically and immediately upon creation of the work. Although registration of the work is not required to secure copyright ownership, it is nevertheless advisable. A registered copyright is required before a copyright owner may bring suit for infringement in federal court, although neither publication nor affixing a copyright notice to the work is still necessary.

Finally, the 1976 statute explicitly codified the fair use defense to infringement suits. The right of the copyright owner to reproduce or to authorize others to reproduce the work is subject to certain limitations, including that of fair use. The Copyright Act contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," including criticism, commentary, news reporting, teaching, scholarship, research, and some transformative purposes.

New Technologies

The new technologies and media forms that emerged during the late twentieth century have had an enormous effect on copyright law. The widespread adoption and use of personal computers and photocopiers were quickly followed by the proliferation of software tools, digital audiovisual recording media, satellite communications, and the Internet. Around each of these technologies have emerged new consumer markets and business models, with none more disruptive than the Internet itself and the immense complexity of sharing works and other information online. At the same time, the limits of copyright law have been tested, and Congress has responded by enacting numerous amendments to the Copyright Act.

In 1980, for instance, the Copyright Act was extended to protect computer programs. In 1995, Congress added provisions governing the licensing of digital audio transmissions, and the 1998 amendment also prohibited circumvention of technological devices used to protect copyrighted digital works. In large part, such amendments reflect the growing influence and economic importance of information technology and the entertainment industries that have spurred these changes. In particular, music copyrights became a major issue in the twenty-first century with the proliferation of digital downloading and file sharing, and later the rise of music streaming services. Whether the 1976 statute and its amendments will remain durable as the pace of technological development accelerates or will need to be replaced by a comprehensive new copyright law remains an open question at this time.

Bibliography

Alpern, Andrew. 101 Questions about Copyright Law. Rev. ed. Mineola: Dover, 2002. Print.

"Copyright Law of the United States." Copyright.gov, US Copyright Office, Library of Congress, 2017, www.copyright.gov/title17/. Accessed 18 Aug. 2017.

Joyce, Craig, et al. Copyright Law. 9th ed. New Providence: LexisNexis, 2013. Print.

Leaffer, Marshall A. Understanding Copyright Law. 6th ed. New Providence: LexisNexis, 2014. Print.

Nimmer, David. Copyright Illuminated: Refocusing the Diffuse US Statute. Austin: Wolters, 2008. Print.

Stim, Rich. "Fair Use." Stanford Copyright and Fair Use Center. Stanford U, 26 Mar. 2014. Web. 23 June 2016.

Warda, Mark. How to Register Your Own Copyright. 5th ed. Naperville: Sphinx, 2004. Print.