Copyright

Introduction
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Copyright protection is available to both published works and unpublished works.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. The earliest British copyright laws were enacted in the 1500s to promote censorship by the government in cooperation with a monopolistic group of printers known as the Stationers’ Guild.

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.

The fourth and most recent overhaul of American copyright law occurred in 1976, after years of study and legislative activity.

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.

Congress also interpreted the clause when it enacted the 1909 Copyright Act:


 * 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 &mdash; 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" &mdash; the idea/expression dichotomy and the fair use defense &mdash; 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.

Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:


 * 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.

In addition, certain authors of works of visual art have the rights of attribution and integrity as described in Section 106A of the 1976 Copyright Act.

Copyright formalities
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.

Copyright infringement
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.

It is illegal for anyone to violate any of the exclusive rights provided by copyright law to the owner of the copyright. Such violations are referred to as copyright infringement.

Criminal copyright infringement
Although civil law protects all the copyright owner's exclusive rights, criminal law primarily focuses on the rights of distribution and reproduction.

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 of 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.



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 limitations 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; and
 * 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).

Preemption
In addition to being primarily statutory, copyright law is also primarily a matter of federal law. The 1976 Copyright Act specifically preempts most state laws that provide copyright-like protection.

Policy uncertainties
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 &mdash; 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.