The Concept & History of Copyright and Sources of Law

Terms:

Copyright:
Protection provided by the law to an individual or entity for original works produced by that author. Copyright law protects the authors of original works.

Normative:
Something which relates to a norm. This involves examining what we think should be, or what ought to be, rather than what actually is.

Berne Convention:
The first international recognition of copyrights by national governments, originally signed at Berne, Switzerland, on September 9, 1886.


As with much of the law in the United States today, copyright law has its origins in the laws of England.  The motivations underlying copyright law today, however, are quite different from those which led to its original creation in England several hundred years ago. While the following discussion is somewhat less exciting than much of what you are used to reading, it is important that you gain a general understanding of the history and evolution of copyright law.

Power to the Printers

Until the advent of the printing press, nobody needed protection against others who might steal their work; the process of copying books was so tedious that few copies of most books were ever made. But during the mid-sixteenth century, the Stationers’ Company was established by a group of printers who agreed amongst themselves that they would not print books which another was already printing. The fatal flaw with their idea was that new printers could show up with their own presses and print anything they liked. In order to avoid this competition, the Stationers’ Company petitioned the King for a monopoly, which was granted. Of course, the monopoly came with a catch - a censorship system came along with it which gave the King the ability to control what was printed.

This exclusive right to print copies of books - a copyright - is the ultimate source of today’s body of copyright law in the United States and across the world.

Power to the Authors

A further issue in copyright law is what rights to these works should be protected, and how. This will automatically force us to consider why we protect the works in the first place. When the goal was to protect printers (and control what information reached the people), the Stationers’ Company absolute monopoly was the result. If the goal is instead simply to give an author total ownership of anything she creates, then copyright protection might logically need to last forever, and might prevent anyone from using any part of the work for any reason without the author’s permission – an absolute monopoly again, but this time in favor of the authors (an therefore spread out a lot more). If the goal of copyright law is to maximize the social value of the work, we would be led in a different direction. And if the goal is to encourage creativity and productivity, we might again be led to a different result.

Most would say that some combination of these goals is what we seek. Certainly, copyright law is no longer intended to provide absolute governmental censorship power, nor is it intended to give a few wealthy individuals a valuable monopoly over the printing industry. The first shift in the goal of copyright law came with the Statute of Anne (see Chapter 1, part 3) which gave protection to the authors of works, rather than to the printers. Although the statute was quite simple compared to today’s intricate body of law, and although it had its own quirks, it is the first “modern” copyright law insofar as the authors, insignificant individuals though they may be, are granted rights which the wealthy, powerful printers and their guild had previously controlled.

American Copyright Law

Colonial copyright law, as discussed in Chapter 1, was largely inspired by the Statute of Anne, and once independent from England, most of the colonies passed their own protective schemes. With the Constitution, however, the power to protect authors and their works was placed in federal hands, and a “comprehensive” copyright act was passed in 1790. (Copyright Act of 1790, 1 Stat. 124). The 1790 Act is interesting for historical reasons only, and was repeatedly revised in the 1800s. Some of these revisions reflected changes in the idea of copyright (e.g., the 1831 change which added musical compositions to the protected list), while others reflected changes in technology as well as ideology (e.g., the 1865 addition of photographs). Also, in 1831 the initial term of fourteen years’ protection (a descendant of the Statute of Anne) was extended to 28 years, with a potential 14 year renewal.

Example: Saucy is an up-and-coming photographer in the late 1800’s, when the technology was still new and mysterious. In 1882, after months of effort, he convinces a young but famous playright, Oscar Grouch, to agree to pose for a photograph. Saucy takes great pains to arrange the backdrop, drapes, Grouch’s outfit, and other visual aspects of the photograph in order to produce “a useful, new, harmonious, characteristic and graceful picture...entirely from his own original mental conception.” He toils over ways in which to pose the great author. He contemplates the various lighting options and the effects of light on his subject’s face and frills. He finally produces a scene, and a photograph, which he believes worthy of the playright’s reputation and his own aspirations. A lithograph company soon makes and sells 85,000 copies of the photo without Saucy’s permission. Despite the lithograph company’s argument that the 1865 addition of photographs by Congress was unconstitutional, the Supreme Court would have good reason to uphold the lower court’s finding for the plaintiff, Saucy. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (concerning the photograph titled “Oscar Wilde No. 18").

While this history may seem irrelevant to working as a paralegal in the twenty-first century, it will later prove quite helpful to you in understanding copyright law. Perhaps the most important development during the latter half of the nineteenth century was the emergence of international copyright law. While this course will focus primarily on the law of the United States, protecting your client’s interests in her works requires an understanding of modern international copyright law, and that law has its roots in the 1886 Berne Convention. International issues will be discussed in more detail toward the end of Chapter 2, but it is noteworthy that the original Berne Convention was signed by only ten nations in 1886 and that as of November 2005 over 160 nations are parties to the agreement.

The Copyright Act of 1909

While the Copyright Act of 1790 is interesting solely for historical purposes, and the Berne Convention and other international issues will be addressed later in the course, the Copyright Act of 1909 still affects the rights in some works today! That’s right – the outdated, outmoded law passed almost 100 years ago is still legally relevant and binding, despite the passage of the 1976 Act, its amendments, and various international treaties. Therefore, it is important for anyone involved in intellectual property work to understand, at least to some degree, how the 1909 Act affects the rights of copyright holders today.

While we will not go into great detail here, you should know that the 1909 Act had a strict “publication & notice” requirement in order to secure and maintain copyright protection. Generally, one was required to include the copyright symbol or the word “copyright” along with the copyright holder’s name and the date of first publication. Technical requirements of notice applied to every use and every copy of the work. If these requirements were not met at the outset, and throughout the life of the copyright, an owner might find herself unprotected against users of her work. The placement of the notice was also prescribed by law. To add to the confusion, some courts would refuse to uphold the rights of copyright owners who inadvertently departed even slightly from these requirements, while others would consider a party’s attempts to comply with the Act in deciding infringement cases.

The 1909 Act is important because many works created before the 1976 Act took effect still fall under the 1909 Act. Therefore, when researching a copyright case, the first question should be which act applies. Facts of import include whether the work was published or not, whether there was proper notice with the publication, whether the work was in its original or renewal term on January 1, 1978, etc. See Copyright Law: A Practitioner’s Guide, Keller & Cunard, §7:3, Practising Law Institute (2005).

Summary

The basic idea of preventing people from making copies of books without permission is still the main concept underlying copyright protection, although the way we choose to achieve that goal is by no means a simple matter. After all, we no longer deal solely with books printed on paper; musical works, art, and digital works, to name just a few, are today included within the scope of protection.

One major issue in copyright law is, therefore, what should be protected, based on our idea of what is proper. This is separate from the question of what the law actually protects. While we usually do not deal with normative questions of this sort, it is important to understand that copyright law is very much in flux today. With the increasingly international nature of communication and the ever-changing technological landscape, copyright law cannot always keep current. Therefore, convincing a court that some new form of transmission constitutes a “writing,” or that some new form of expression should fall under the definition of a protected “work,” becomes a matter of arguing that this should be the case. After all, it is quite difficult to claim that the law as it stands intended to protect a form of expression which did not even exist at the time the law was passed!

Consider the fact that at one time there was a question as to whether computer games, generated by computer code, were “fixed” writings that could be copyrighted. See, e.g., Stern Elecs., Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982). The intricacies of these and other issues will be addressed as we move through our coverage of the Copyright Act of 1976, as amended over the years. It is the 1976 Act which provides the protection, remedies, and other details which most concern us. While we will not have time to examine every section of Title 17 of the United States Code (where the 1976 Act is found), we will cover the most crucial portions of the law.

All references to §101 and other sections discussed in the copyright chapters of this courseware are sections of the Copyright Act of 1976, codified in the United States Code, Title 17. For example, §117 (Limitation on exclusive rights; computer programs) refers to USC Title 17, §117, which could also be cited as 17 USCS §117. For simplicity’s sake, we will drop everything beyond the section number.

A further note on references:
Throughout this Courseware we will refer to House Report No. 94-1476, 94th Cong., 2d Sess. (1976). The quotations from, and references to the House Report are selections from more extensive quotations of this House Report found in Copyright for the Nineties, Gorman and Ginsburg, 4th ed. The Michie Company (1993). These will be cited as “1976 House Report, p. XX ” where the page number is the beginning of the Report quote as found in Gorman.

The relevant text of the House Report can also often be found in the notes of the section of Title 17 under discussion, under the heading “History; Ancillary Laws and Directives,” but references to Gorman are maintained for the sake of continuity and consistency.

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