Introduction to Copyright
Principles
© 2005 Patricia L. Bellia. May be reproduced, distributed or adapted for educational
purposes only.
Intellectual Property Generally
▪ Protects products of the mind
▸Patent Law: Limited monopoly for new, inventive
products, processes, and designs
▸Trademark Law: Protects words, symbols, etc. that
identify the source of goods and services against
confusingly similar uses
▸Copyright Law: Protects “original works of authorship”
Theories for Copyright Protection
▪ Natural law view: persons have the right to reap the
fruits of their creations
▪ Utilitarian view: copyright protection provides
incentives for persons to produce works of
authorship
Sources of Copyright Law
▪ U.S. Const. art. I, sec. 8, cl. 8 (The Patent and
Copyright Clause) empowers Congress:
“To promote the Progress of Science and the
useful Arts, by securing for limited Times, to
Authors and Inventors, the exclusive Right to
their respective Writings and Discoveries.”
Incentive-Based View of Copyright
▪ The Copyright Act of 1976 (17 U.S.C. § 101 et
seq.) reflects an incentive-based view of intellectual
property.
Incentive-Based View of Copyright
•The public grants
an author a limited
monopoly (giving
up a public good)
and receives
•original works of authorship
and certain rights to use the
work during the copyright
term (and rights once work is
in public domain)
Copyright Basics
▪ What works?
▪ When?
▪ Whose rights?
▪ What rights?
▪ What limitations?
What works?
■ 17 U.S.C. § 102(a):
■ “original works of authorship”
■ “fixed in any tangible medium of expression”
What works?
Originality Requirement
▪ independent creation
▪ modest quantum of creativity
What works?
Fixation Requirement
■ Under the Constitution, Congress can protect
“writings” of authors
• construed to mean any physical rendering of the
fruits of intellectual activity
• work must be recorded or written in some
manner; mere performance does not qualify
What works?
Categories of Works Protected
■
■
■
■
literary, musical, dramatic works
pictorial, graphic, sculptural, architectural works
motion pictures and other audiovisual works
sound recordings
What works?
Categories of Works Not Protected
■ ideas and principles – copyright law protects the
expression, not the substance, of the idea
• E.g.: Superman versus the Greatest American Hero
■ utilitarian objects – something is only protectable
to the extent that it is separate from and capable of
existing independently of its utilitarian aspects
• E.g.: Ledger sheets and blank forms
• E.g.: On computer systems, graphical interfaces often
not protected
What works?
Categories of Works Not Protected
■ facts
■ obscene, immoral, or fraudulent works
■ works of the U.S. Government
When?
When Protection Attaches
■ At the moment of fixation
■ Not publication (as was the case under previous
regimes)
■ Copyright notice not required post-1989 (though
it provides procedural advantages)
■ Registration is permissive (but is a prerequisite to
an infringement suit)
When?
How Long
■ Generally speaking, life of the author plus 70
years
■ For institutional works, 95 years from publication
or 120 years from creation, whichever is shorter
■ For works published prior to 1978, 28-year first
term and 67-year renewal term
■ Pre-1923 works now in public domain
Whose rights?
■The creator of the work (“author”)
• ownership of copyright is distinct from ownership
of the physical object
■In the case of a work for hire, employer owns
What rights?
■ Exclusive rights (17 U.S.C. § 106)
• to reproduce work in copies and phonorecords
• to prepare derivative works
• to distribute copies or phonorecords to the public by
sale, lease, etc.
• to publicly perform and display work (generally does not
apply to sound recordings)
■ Moral rights for visual art (17 U.S.C. § 106A):
rights of attribution and integrity
What limitations?
■ Exclusive rights subject to specific limitations (17
U.S.C. §§ 107-121)
1. Fair use is not infringing use (17 U.S.C. §
107)
Four factors:
• purpose and character of use
• nature of copyrighted work
• amount in relation to work as a whole
What limitations?
■2. Compulsory Licenses (examples):
• secondary transmission of broadcast programs by
cable systems
• satellite retransmissions
• independent recording of a musical work, once
phonorecord has been distributed to public
■3. Blanket Licenses Distinguished
Infringement
■ 17 U.S.C. § 501:
■ “Anyone who violates any of the exclusive rights
of the copyright owner . . . is an infringer of the
copyright . . . .”
■ Possible remedies include injunctions;
impounding and disposition of infringing articles;
damages and profits
Criminal Offense
■ 17 U.S.C. § 506 provides for criminal penalties
for one who
• willfully infringes
• either for purposes of commercial advantage or
private financial gain
• or by reproduction or distribution during a 180day period of works with a total retail value of
more than $1000
Related Defendants
■ Contributory Infringement
• defendant knew or had reason to know of
infringement
• and materially contributed to it
Related Defendants
■ Vicarious Liability
• defendant had the power to control infringing acts
• and benefitted from them
Related Defendants
■ Digital Millennium Copyright Act of 1998 limits
the liability of online service providers
Responses to the Challenges of Digital
Technology (Rights Beyond Copyright)
■ Anti-circumvention and anti-trafficking
provisions of the DMCA
• prohibits circumvention of technical measures
that control access to works
• prohibits making and selling of devices used
to circumvent technical measures to control
access or prevent copying