COPYRIGHT LAW FALL 2008: CLASS 2

Professor Fischer

Introduction to Copyright 2: Historical Background

AUGUST 20, 2008

Author’s Rights Concepts Are Very Ancient

• 6th century: St. Columba and King Diarmid :

• “To every cow her calf”

Copyright is Technology’s Child

• COPYRIGHT IS THE PRODUCT OF CENSORSHIP

Stationers’ Company

• Livery company in the City of London

• Facilitated Crown control of printing

• Had exclusive right to practice the art of printing until Licensing Acts expired in 1694

The First Copyright Statute The Statute of Anne (1710)

• See: http://www.copyrighthistory.com/anne.html

• Elements of Later Copyright Statutes

Statute of Anne

STATUTE OF ANNE (1710)PRINCIPAL PROVISIONS

• Exclusive right of author of new work to print and reprint the book – 21 years for existing works– 14 years from publication for new or unpublished works

• Renewal for 14 years if author still living• Registration required

– Register title at Stationers Hall before publication• Deposit

– 9 copies – Royal Library, certain other libraries• Infringement

– 3 month limitations period• No protection for foreign books in foreign language

American Copyright: Derives from English Law

• Each had copyright laws [except Delaware]

An Early Copyright Lobbyist

• Hint: Dictionaries

Patent and Copyright Clause

• U.S. Const. Art. I sec. 8 cl. 8

• The Congress shall have 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

Federal Copyright Statutes

• Starting in 1790, Congress passed a series of copyright acts

Some Subsequent Federal Statutes

• 1802 (amendment to 1790)– notice required on copies of protected works --

also protection expanded to prints

• 1831 General Revision– increased term to 28 years plus 14 year renewal --

also protection expanded to musical compositions (but not performance) and cuts and engravings

Wheaton v. Peters (1834)

• Dispute between Henry Wheaton and Richard Peters, rival law reporters

• Issue for Supreme Court

Wheaton v. Peters (1834)

• Dispute between Henry Wheaton and Richard Peters, rival law reporters

• Issue for Supreme Court was whether common law copyright existing in the U.S. and if so, whether it was abrogated by the federal Copyright Act

Some more subsequent copyright statutes

• 1856 – protection expanded to dramatic works and public

performance thereof

• 1865 – protection expanded to photographs

• 1870 – protection expanded to paintings, drawings,

chromolithographs, sculptures and models/designs; also, responsibility centralized in Library of Congress

• 1897– protection expanded to public performance of musical

compositions

• Copyright Act of 1909– Expanded list of protected works – e.g., periodicals– Catch-all: “all the writings of an author” (Section 4)– Copyright for published work begins upon publication with notice– Statutory copyright available for certain unpublished works– Renewal term extended – maximum copyright term of 56 years– Preserved common law rights in unpublished works– Compulsory license – Codified “first sale” doctrine– STILL IMPORTANT

• 1912 – protection expanded to motion pictures

• 1971 – protection expanded to sound recordings

Current Copyright Statute

• Copyright Act of 1976

• Many amendments to the Copyright Act of 1976, e.g. Architectural Works Copyright Protection Act (1990), Digital Millennium Copyright Act (1998) etc.

Historical Trends in Copyright Law

• 1. copyrightable subject matter

• 2. duration

• 3. international copyright system

• 4. formalities

Historical Trends in Copyright Law

• 1. Progressive expansion of copyrightable subject matter

• 2. Expansion of duration

• 3. Growing U.S. participation in international copyright system

• 4. Steadily reduced importance of formalities

What is Copyright

• Copyright is a form of protection provided by the laws of the United States (Title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

• Right of author to control the reproduction of his/her intellectual creation (CB at 12)

• Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work.

Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

What works are protected?

1. Literary works;2. Musical works, including any accompanying words;3. Dramatic works, including any accompanying music;4. Pantomimes and choreographic works;5. Pictorial, graphic and sculptural works;6. Motion pictures and other audiovisual works;7. Sound recordings;8. Architectural works.

These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”

Section 106 of the 1976 Copyright Act (17 U.S.C. §§ 101, et seq.) generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

What rights does copyright protection afford?

• To reproduce the work in copies or phonorecords (“reproduction”);• To prepare derivative works based upon the work (“adaptation”);• To distribute copies or phonorecords of the work to the public by sale

or other transfer of ownership, or by rental, lease, or lending (“distribution”);

• To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio-visual works (“public performance”);

• To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audio visual work (“public display”); and

• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission (“digital performance right”).

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.