#16473 - Copyright Requirements - Intellectual Property (IP) Law

02. Copyright Requirements: Originality, Fixation, and Formalities

P. 492-527; 17 U.S.C. §§ 101 (“fixed,” “publication”), 102(a), 104A, 401-402, 406-409, 411-412

A. Introduction

Brief History of Copyright Protection

• Invention of the printing press in England made it cheaper and easier to have mass production of books

  • Second comers can easily print a book without author’s permission people starting to get worried

  • Crown also worried the information being distributed through the printing press wanted some censorship control over what is being printed

  • Crown give charter to companies the right to print but authors are not getting much out of this and criticized this law first copyright law:

  • 1710 Statute of Anne: proposed by authors, giving them control over their work. First shift from publisher right to author’s right – also start of the romantic notion of creativity and authorship

    • Two 14 years period (with option to renew if author survived by the end of the period) created public domain – copyright would expire after a period of time

• IP clause became part of the US Constitution

  • Congress enacted a Copyright Act 1790

    • Short amount of time: similar to Anne: two 14 year terms + another 14 years.

    • Need to register and deposit work

    • Narrow subject matter: only copyright to maps, charts and books

    • Narrow right: only protects exact publication, doesn’t cover translation, or slight alterations

1. 1909 Copyright Act: still govern some work nowadays

   • protects ‘all writings’ (including work in progress + speeches) music, performance

   • initial term 28 yrs + 28 yrs upon renewal

   • failure to provide proper notice upon publication of a work forfeit protection

   • Requirement of registration + notice + domestic manufacturing requirements conflicts with European Berne (which prohibits any formal prerequisites to copyright enforcement) US wasn’t eligible for Berne membership

2. 1976 Act and Related Reforms

   • author’s right of publication, reproduction, distribution, performance, display, derivative work

   • expanded scope and duration of protection: protects all authorship/ as long as original

   • all written works became protected upon being “fixed in a tangible medium of expression”, even if unpublished [previously requires publication to trigger copyright protection]

     • trigger: publication (1909) fixation (1976)

   • duration: expanded to life of author + 50 yrs or 75 yrs if anonymous

     • addition 20 yrs protection in 1998 life of author + 70 years

   • expansion often due to content producers, asking for greater protection

   • weakened IP protection by establishing several new compulsory licensing regimes, approving numerous exemptions from liability, codifying fair use doctrine (from case law), preempting most case and common law protections that impinge upon federal copyright protection

   • incorporated protection for computer programs

   • [Note might have to other legislation other than 1976 nowadays]

3. Berne Convention Accession 1989

   • US didn’t want to join, as it includes mural rights

   • US joined in 1989, had to amended its IP law to comply with min standards

   • Reduce formalities, extended protection for moral rights and architectural works, restoring copyright for foreign works under protection in the source country but in the public domain in the US

4. The Digital Age led to amendments to Copyright Act

   • Audio Home Recording Act 1992

   • Digital Performance Right in Sound Recordings Act 1995

   • No Electronic Theft Act 1996

   • Digital Millennium Copyright Act 1998

Sometimes not so artistic, but functional – can still be creative

An Overview of the Copyright Regime

• Elements of protectable copyright

  1. copyrightable subject matter: author’s particular expression of an idea (not idea itself), e.g. literature, song, dance, sculpture, graphics, painting, photography, sound, movies, computer programming

  2. threshold for protection: little originality + fixed in a tangible medium of expression

  3. formalities:

     • notice required on all work published before 1989

     • registration not required for validity, but required of US authors prior to instituting an infringement suit

     • deposit of copies of work required to register

  4. authorship and ownership:

     • work must have been created by the party bringing suit, or

     • rights in work must have been transferred by author to party ringing suit

     • for ‘works made for hire’ – employer is considered the author and owner of the work (not the original creator)

  5. Duration of copyright:

     • life of author + 70 yrs; or

     • 95 yrs from first publication if anonymous/ pseudonymous/ work made for hire

     • or 120 yrs from year of creation, whichever occurs first

• US Copyright Office register works, but doesn’t conduct search of prior art assess validity

  • copyright is protectable at the moment the work is created

• Ownership of valid copyright confers the following rights:

  1. reproduction: exclusive right to make copies

  2. derivative works: exclusive right to prepare derivative works (based on original, but in different forms altered, e.g. translation, movies based on book)

  3. distribution: right to control sale and distribution (original, derivative, licensed), but no right to resale

  4. performance and display: right to control public (but not private) performance and display of work, including computer programs and other audiovisual works (but no right to prevent)

  5. anti-circumvention: Copyright Act prohibits circumvention of technological protection measures designed to safeguard digitally encoded works, subject to several exceptions

  6. moral rights: attribution to their work, prevent intentional distortion/ modification of their work

• Protected against direct and indirect infringement, but rights are limited

  • fair use doctrine: allow leeway for criticism, comment news reporting, teaching… apples a balancing test to deterine whether a use of copyrighted material should be permitted without owner’s authorisation

• Copyright do not give their owner exclusive right to prevent others from making, using or selling their creations

  • only right to prevent unauthorized copying of their work + prevent limited types of uses (e.g. public performance) when derived from copyright owner

  • independent development of similar/ identical work is perfectly legal

Philosophical Perspectives on Copyright Protection

• Natural obligation/ right

  • Lockean principle: authors deserve to own the works they have created

• Utilitarian

  • balance between fostering incentives for creation of literacy and artistic works, and optimal use and dissemination of such work

• reward authors for their work

B. Requirements

Statutory Basis

• Subject matter of copyright: In general 17SC § 102(a) (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

• “Copyright protection subsists … in

  1. original works of authorship

  2. fixed in any tangible medium of expression”

(1) Originality

• ‘Originality’ is not defined in the statute

  • It has to be novel to the world, not a high standard, what court have said it is

  • Work in a mechanical or functional manner ‘sweat work’ lack creativity, despite costly and time consuming Should it be protected by copyright?

• The Constitutional Basis

  • “To Promote the Progress of Science …, by securing for limited Times, to Authors, the exclusive Right to their respective Writings”

  • An author is “the beginner . . . or first mover of anything . . . creator, originator.” (Remick Music Corp. v. Interstate Hotel Corp. of Neb., 58 F. Supp. 523 (D. Neb. 1944), aff’d, 157 F.2d 744 (8th Cir. 1946))

• Legislative History

  • “The phrase ‘original works of authorship,’ which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts [under the 1909 Act]. This standard does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them….” (H.R. Rep. 94-1476 (1976))

• Feist Publications v Rural Telephone Service (1991)

  • To qualify for copyright protection, a work must be original to the author

  • Facts:

    • Feist, after failing to license Rural’s white pages listing, used them without Rural’s consent. Feist also includes individual street address, while most Rural’s listings do not. However, 1309/ 46878 were identical to listing, including 4 fictitious listing Rural inserted to detected copying. Rural sued for copyright infringement.

  • Issue: whether the listing is original

  • “The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author.”

    • Facts are not copyrightable; but compilations of facts generally are

      • To qualify for copyright protection, work must be original: independently created by the author + min degree of creativity. Need not be novel; but cannot be result of copying

      • Facts: no one may claim originality as to facts, as facts do not owe their origin to an act of authorship [discovery]

      • Factual compilations: selection and arrangement, entail a min degree of creativity, are sufficiently original satisfy modicum of creativity

    • Info copied by Feist were not original to Rural not protected by the copyright in Rural’s combined white and yellow pages directory.

      • Rural's white pages did not satisfy the minimum constitutional standards for copyright protection because the information they contained lacked the requisite originality, as Rural...