Basics of Copyright Law
Copyright law is a legal framework that grants creators of original works exclusive rights to control how their works are used, distributed, and reproduced. These rights include the right to make copies, distribute, perform, display, and create derivative works. Copyright law plays an important role in protecting the rights of creators and incentivizing the creation of new works. It allows creators to monetize their creations, maintain control over how their works are used, and prevent others from using their works without permission. Without copyright protection, creators may be less likely to invest their time and resources into creating new works, which can have a negative impact on society as a whole.
Copyright has a significant economic impact on various U.S. information industries, such as Hollywood, Silicon Valley, and Big Media. However, it also has a profound effect on personal expression, the right to read, and our ability to stay informed citizens in the public discourse.
A little bit of history.
The roots of modern-day copyright can be traced back to England during the 1500s. At that time, only a small group of skilled craftsmen had the expertise and resources to print books, and they were organized in a guild known as the Stationers’ Company. Members of the company made a mutual agreement that whenever one of them printed a particular book, all the others would abstain from printing any copies of that book. They created a record-keeping system to keep track of which member was entitled to print which books. When a printer’s rights were recorded in the Stationers’ Company records, that printer held the “copyright” to the book. This system was not designed to promote the public good, but rather it was a self-serving arrangement that would likely be in violation of antitrust laws today. In 1557 the King granted monopoly publishing rights to the Stationers’ Company.
The Stationers’ Company monopoly publishing rights had expired in 1694 and independent printers started publishing, leaving the Stationers vulnerable to competition. In response, the publishers launched a lobbying effort and shifted their focus to the right of the authors, leading to the enactment of the Statute of Anne in 1710. This statute was a significant shift from previous licensing statutes, as it protected the authors rather than the publishers of new works. The Statute of Anne granted a 14-year term of exclusivity for authors and their assigns from the date of first publication, with a second term of 14 years if the author survived until its commencement. The enactment of the Statute of Anne is widely regarded as a foundational event for copyright in the common law world.
Sources of law of copyrights
U.S. sources
Since its inception in 1976, Congress has made several amendments to the Act. The most notable of these changes was the Berne Convention Implementation Act in 1988, which brought U.S. copyright law in line with international standards. This amendment resulted in the relaxation of formalities such as notice, recordation, deposit, and registration.
In 1998, two significant statutory developments took place. The Sonny Bono Copyright Term Extension Act prolonged the typical term of copyright to life plus 70 years, and the term for anonymous, pseudonymous works and works made for hire increased to 95 years from publication or 120 years from creation, whichever was shorter. Additionally, Congress enacted the Digital Millennium Copyright Act, which made it illegal to circumvent technological measures controlling access to copyrighted works.
Harmonization
While there is no universal copyright system, works of authorship are protected and enforced in each jurisdiction where copyright protection is sought. However, international agreements have been established to install copyright relations, enabling non-resident authors to obtain intellectual property protection overseas. There are two key copyright treaties, the Berne Convention and the TRIPS Agreement.
The Berne Convention is the fundamental multilateral copyright agreement established by the International Union for the Protection of Literary and Artistic Works, also known as the Berne Union. The Berne Convention requires signatory states to adhere to the principle of national treatment and provide minimum standards of substantive protection, including specific exclusive rights and a copyright term that lasts for the life of the author plus fifty years. In addition, the Berne Convention eliminates the requirement for formalities, such as registration of the work of authorship with the government, as conditions of copyright protection. Any works first published in the United States or any other Berne signatory state — or initially published in a non-Berne country and subsequently published within 30 days in a Berne member state — are eligible for protection in all Berne member states.
The TRIPS Agreement is a component of the international agreement that established the World Trade Organization (WTO) and is also known as the Agreement on Trade-Related Aspects of Intellectual Property Rights. Many countries have signed the TRIPS Agreement, which affirms and expands the Berne Convention. The TRIPS Agreement mandates that member states of the WTO adhere to many of the Berne Convention’s provisions and acknowledge computer programs’ copyrightability. Moreover, the TRIPS Agreement requires that member states protect data compilations and cinematographic works. Any disagreements among the signatories regarding compliance with the TRIPS Agreement are resolved via dispute resolution before the WTO.
The Rome Convention. The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations — 1961.
The Geneva Phonograms Convention. The Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms — 1971.
Brussels Satellite Convention. The Convention Relating to the Distribution of Programme–Carrying Signals Transmitted by Satellite — 1974.
What copyright does not
Let’s begin by understanding what copyright does not protect. Many times, people misunderstand the scope of coverage of copyrightable subject matter and what copyright actually does in practice. This misunderstanding can lead to a lot of common mistakes that people make when talking about copyright law. Five basic principles exclude certain types of content from copyright protection.
The first principle is that copyright does not protect ideas, only the expression of ideas.
The second principle is that copyright does not protect inventions, which are protected by patent law.
The third principle is that copyright does not protect brands or source identifiers, which are protected by trademark law.
The fourth principle is that just because something is copied does not necessarily mean it is copyright infringement.
Finally, the fifth principle is that copyright does not require registration for protection. Unlike trademark and patent law, you get copyright protection automatically when the subject matter meets the requirements for eligibility under copyright laws.
What copyright is
The first requirement is originality. In order to be eligible for copyright protection, a work must be original. This means that the work must be independently created by the author and not copied from another source. However, it’s important to note that originality does not mean that the work has to be completely new or unique. It just means that the work must have some level of creativity or originality, and not be a mere copy or imitation.
The second requirement is the idea of expression. Copyright protects the expression of an idea, but not the idea itself. In other words, copyright does not protect the concept or theme of a work, but only the specific way in which the idea is expressed. For example, a book about a magical school for wizards may be copyrightable, but the idea of a magical school for wizards is not.
The third requirement is the fixation requirement. This means that the work must be fixed in a tangible medium of expression, such as a book, a painting, or a digital file. The work must be recorded in some way that can be perceived, reproduced, or communicated.
The fourth requirement is the authorship requirement. In order to be eligible for copyright protection, the work must be a product of authorship. This means that the work must be created by a human being and not a machine or an animal. Additionally, the author must have put some level of creativity or originality into the work.
Understanding these eligibility requirements is important because it helps creators determine whether their work is eligible for copyright protection. It also helps prevent infringement by clarifying what is and is not protected by copyright.
What is expression?
Let’s begin our discussion of what copyright actually covers by stating a basic proposition about copyright law: it protects expression, nothing more and nothing less. Copyright is synonymous with protection for expression, which means that it only protects the way in which ideas are expressed and not the underlying ideas themselves. However, despite this emphasis on protecting expression, the copyright statute does not provide a clear definition of what expression is. In practice, we understand expression by figuring out what it is not.
This understanding of copyright protection has important implications for the First Amendment of the US Constitution, which guarantees the freedom of speech. Copyright, as a law that creates rights in speech, has an interaction with the First Amendment that needs to be balanced against considerations of free speech.
For example, in the case of a newspaper article that reports on a current event or incident, copyright law protects the reporter’s own telling of the story, the exposition, the description, the narration of the facts in the reporter’s own words, rather than the underlying facts themselves. Therefore, someone else can take those same facts and reproduce them in their own words without committing copyright infringement.
Another example involves an artwork depicting a public building, such as a city hall. The artist may paint an accurate depiction of the building, but they do not have a monopoly on the building itself. Copyright protection only applies to the artistic expression or drawing of the building, not the actual structure of the building.
Expression and Ideas
After discussing the basic recognition that copyright only protects expression, the author introduces the idea-expression dichotomy as one of copyright’s fundamental doctrines. This principle states that copyright law does not protect ideas, only expressions of ideas.
This means that copyright protects only the expression contained within a work and not the underlying plot, theme, or insight of the work. In other words, if an author writes a book explaining how to repair automobiles in an efficient way, he or she may not prevent others from describing the technique in their own words in another book. Similarly, if an author writes a novel based on the notion of a highly placed CIA agent who is actually a spy for a foreign power, he or she may not prevent others from using that concept as the basis for their own, separate novel.
Why do such limitations exist? First, copyright is meant to promote the progress of science and the useful arts, and allowing the first person to articulate a theory or lay out a plot line to prevent others from using it for several decades would hinder progress. Second, patent law already rewards innovation in the development of principles and procedures, and extending copyright protection to ideas would undermine the policy objectives of patent law. Finally, extending copyright protection to ideas contained in works could potentially violate the First Amendment by preventing others from discussing the material contained in the works.
The principle originated in one of the most famous IP cases called Baker v. Selden — a surprisingly opaque, controversial, and complicated opinion.
The case involved a book that contained sample bookkeeping forms created by the author, John Selden. Another author, Frederick Baker, created his own bookkeeping forms based on Selden’s forms and published them in a book. Selden sued Baker for copyright infringement, but the Supreme Court ultimately held that copyright protection did not extend to the underlying ideas, concepts, or methods in Selden’s forms, but only to the specific way in which they were expressed. This ruling has since been cited as a key precedent in the area of copyright law that distinguishes between protectable expression and unprotectable ideas or functional elements.
The problem with the decision is that at various points in the opinion, the Court seems to assume that Baker took not merely the idea of the accounting system, but its expression as well. Court, noted, that it was impossible to use the ideas of Selden’s system without also borrowing the expression contained in the accounting forms. This goes beyond the basic idea-expression distinction to say that not only may one copy the ideas of another person’s work without incurring infringement liability, but one may also copy the expression of the work if doing so is necessary in order to use the ideas.
This is a difficult case because of the close interconnection between the ideas of Selden’s system and the expression that is incorporated into his accounting forms. Cases of this sort, where the ideas and expressions of a work are closely intertwined, often occur when a given idea can only be communicated in one, or a limited number of expressions.
In cases such as this, the courts generally say that the idea and the expression in question have “merged” and they deny copyright protection to the expression at issue. That approach also is called “the merger doctrine”.
Proving that an idea can only be expressed in a limited number of ways can be challenging and requires a detailed case-by-case analysis. One famous example is the case of Herbert Rosenthal Jewelry v. Kalpakian, where the court permitted the copying of a jewelry pin shaped like a bee because the idea of a bee merged with the expression of that idea. The court acknowledged that there are only a limited number of ways to design a bee-shaped pin and that any subsequent design would bear a striking resemblance to the original. If the plaintiff’s bee pin was the only one protected under copyright, they would have a monopoly on the idea of a bee-shaped pin, which goes against the purpose of copyright law to promote progress. Therefore, the court stated that when the idea and expression are inseparable, copying the expression is not barred, as protecting the expression in such a scenario would give the copyright owner a monopoly on the idea without the limitations imposed by patent law.
The practical problem of how to distinguish the “idea” of a work from its “expression.” This problem of classification is invariably controversial because in many infringement cases, the defendant will claim that he or she took only the unprotected ideas of the plaintiff’s work, rather than any of the protected expression. Moreover, the distinction between ideas and expression is not really a sharp dichotomy — rather, it is a continuum and we have to understand that no clear principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression,’…. Decisions must therefore inevitably be ad hoc.
Ultimately, the merger doctrine is an important complement to the idea-expression dichotomy and demonstrates how the law balances the need to keep ideas and expression separate while acknowledging that sometimes an idea can only be expressed in a limited number of ways.
Fixation
The “fixation doctrine” in copyright law requires that a work must be embodied or fixed in a tangible medium of expression, such as written on paper, recorded on tape, or captured in some other way before it can be protected by federal copyright laws.
In other words, the work has to be written down, taped, filmed, or otherwise captured in some way before copyright protection can be attached. Once an original work is fixed, it is immediately protected by the copyright laws. There are no formalities required of an author — no application to an administrative agency, no act of publication, nothing other than the mere fixation.
However, it’s important to distinguish between the work itself and the object or objects in which it is embodied. The statute defines two types of objects in which works can be embodied: “copies” and “phonorecords.” Phonorecords are material objects that contain fixed sounds, such as audio cassette tapes or compact discs. All other material objects that can contain a work are considered “copies,” including items like books, architectural drawings, photographic negatives, and computer floppy discs.
A work can be embodied in a single copy, like a handwritten letter or a unique oil painting, or in multiple copies, such as a best-selling novel. The physical object in which a work is embodied can be transferred or destroyed without affecting the ownership of the copyright in the work. Even if all physical copies of a work are destroyed, the copyright in the work itself will still endure.
Under earlier copyright statutes, the types of fixation that were deemed acceptable by the courts were much more limited compared to today. In the case of White-Smith Music Publishing Co. v. Apollo Co., for example, the court ruled that the production of unauthorized perforated piano rolls encoding protected musical compositions did not infringe on the copyright of the compositions. This was because the rolls could not be read and deciphered by the unaided human eye, and were therefore not considered “copies” of the protected works.
This ruling reflected the judicial reluctance at the time to extend copyright protection to works that were embodied in new technologies. If this ideology had prevailed today, copyright protection might be denied to works like computer programs on floppy discs, motion pictures on videotape, and music on CDs, on the grounds that these objects cannot be read by the unaided human eye and are therefore not adequately fixed.
Originality
The doctrine of originality is essential to copyright law but can be misunderstood due to its complexities. Moreover, this term is nowhere defined in the text of the copyright statute clearly.
Copyright only protects expression, and not ideas or facts. Only original expression is eligible for copyright protection, meaning it must satisfy the originality requirement. Originality in copyright law does not mean new, and it is not the same as distinctiveness, which is unique to trademark law. The originality doctrine in the US embodies two important elements.
The first is that the work must originate with the author, and not be copied from elsewhere.
There is an interesting theoretical consequence for this focus on independent creation. If two authors each were to conceive of and fix, the exact same work without knowledge of the other’s activities, each would be entitled to an independent copyright on the resulting work. This situation is sometimes referred to as parallel independent creation. Moreover, this is one of the major distinctions between the scope of patent law and that of copyright. Thus, once a patent has been issued to an inventor, he or she may prevent others from creating the invention, even if they do so entirely independently. In other words, to be patentable, an invention must be “novel” in the sense of never having existed before. In contrast, there is no novelty requirement for copyrights.
There are, of course, many intermediate possibilities between exactly copying a pre-existing work and creating a new work entirely from scratch. Many authors might start with someone else’s work and then modify it to a greater or lesser extent. For instance, someone might copy the first four acts of Hamlet verbatim, but write an entirely new Act Five; or might copy the painting of Gioconda but do it in bright neon colors instead of the colors of the original. These works, which are neither wholly original nor wholly copied are usually called“derivative” works.
The second is that it must embody a modicum of creativity, and cannot be banal or ordinary.
The amount of creativity required is not great. As the Supreme Court has stated in its one case, “to be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark ‘no matter how crude, humble or obvious’ it may be”.
A good example of the modicum of creativity is the famous case known as Feist vs Rural Telephone.
In the Feist v. Rural case, Rural, a local telephone company, had created a white pages directory using its own customer listings, as required by Kansas law. Feist, a publisher of wide-area telephone directories, wanted to include Rural’s service area in its own directory but was denied permission to use Rural’s listings. Despite this, Feist went ahead and used Rural’s information, copying 1300 listings, including four fictitious ones meant to detect copying.
The court ultimately ruled that Rural’s directory lacked the originality required for copyright protection. The court emphasized that individual facts in a compilation cannot be protected by copyright and that protection extends only to the selection, coordination, and arrangement of those facts.
In Rural’s case, the court found that the selection and arrangement of names in alphabetical order lacked originality and creativity. Thus, Rural’s directory was not eligible for copyright protection.
Authorship
In copyright law, there exists a hidden requirement for protectability, one that is often overlooked but crucially important. This requirement pertains to authorship, and without an author and authorship, copyright law cannot be applied.
To satisfy this requirement, the work of expression must have a human claimant of authorship, as authorship embodies a human element. In other words, only a human being can be considered an author.
A good example of the authorship requirement is the famous case known as Naruto v. Slater.
Naruto v. Slater is a legal case that centers around a monkey named Naruto who allegedly took a selfie using a camera belonging to wildlife photographer David Slater. The photo went viral and Slater published it in a book. PETA, (People for the Ethical Treatment of Animals) filed a lawsuit on behalf of Naruto, arguing that the monkey owned the copyright to the photo and should receive the income from its use. The court ultimately ruled that animals cannot hold copyright and dismissed the case.
To summarize, for copyright protection to attach, the work of expression must have an identifiable human element that is causally connected to the expression seeking protection. These two requirements of authorship are crucial in determining whether a work is eligible for copyright protection.
The author provides a more modern example of this principle in Bikram’s Yoga College v. Evolation Yoga (2015). Bikram Yoga claimed copyright infringement against a competitor who had copied its sequence of yoga poses, but the court ruled that the sequence was nothing more than an idea, and therefore not protected by copyright law. While the idea-expression dichotomy is a basic principle, it can be challenging to apply in practice. Bikram’s Yoga College v. Evolation Yoga: 803 F.3d 1032 (9th Cir. 2015).
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