Core Copyright

Copyright used to be a topic that interested a nerdy or specialized few, and affected a limited amount of works and creators. This post outlines some reasons why copyright’s scope, breadth, and applicability has expanded, and why this area of intellectual property has become so important.

Ubiquity: Without exception, copyright is the most ubiquitous form of intellectual property. Copyright’s pervasiveness has risen because it is, by far, the easiest form of intellectual property protection for which one can qualify; it applies to the broadest scope of works; and it lasts the longest. Additionally, copyright may be the easiest form of intellectual property to violate; and arguably has the most severe penalties in the event of a legal violation.

Law professor Jessica Litman explicitly has acknowledged copyright’s ubiquity. “At the turn of the century, U.S. copyright law was technical, inconsistent, and difficult to understand, but it didn’t apply to very many people or very many things,” she wrote in 1994. “If one were an author or publisher of books, maps, charts, paintings, sculpture, photographs or sheet music, a playwright or producer of plays, or a printer, the copyright law bore on one’s business. Booksellers, piano-roll and phonograph record publishers, motion picture producers, musicians, scholars, members of Congress, and ordinary consumers could go about their business without ever encountering a copyright problem.”

“[Now], the U.S. copyright law is even more technical, inconsistent and difficult to understand; more importantly, it touches everyone and everything,” she continued. “Most of us can no longer spend even an hour without colliding with the copyright law.”

Lack of prerequisites or formalities: Under prior iterations of U.S. copyright law, one could not receive copyright protection for a work if that work was unpublished; or the work was not registered with the U.S. Copyright Office; or if the work did not carry the requisite copyright notice (generally the “C in a circle,” or ©). This is no longer the case: publication no longer is a prerequisite to receiving copyright protection; one can receive copyright protection without registering the work with the Copyright Office; and for the last 20 years or so, lack of a copyright notice does not invalidate or eliminate copyright protection for the underlying work.

There are reasons why copyright formalities, which were standard under the Copyright Act of 1909, no longer are standard under the current Act. We will address these reasons in a separate post. For the moment, though, we now are fairly close to an automatic system of copyright, according to William Patry.

Applicability & expansion: Copyright applies to any originally creative and recorded work, and rarely have the classes of copyright-eligible works been broader than they are now. According to Edward Samuels, the Copyright Act of 1790, this nation’s first copyright law, granted protection only to books, maps, and navigational charts; the sole rights the creators received were the exclusive rights to print, reprint, publish and sell those works.

Since then, according to William Patry, Congress has added statutory protection for the following works, in the following years:

• musical compositions (1831);
• dramatic works (1856);
• photographs (1865);
• motion pictures (1912) (Note: Motion pictures first were able to receive copyright protection as photographs in 1894);
• sound recordings (1972); and
• architectural works (1990).

(As for computer programs, Patry writes in his treatise that the Copyright Office began registering computer programs as books in 1964; current copyright law provides copyright protection to computer programs as “literary works.”)

The expansion of copyright has not been limited to the eligible classes of works. Types of rights also have expanded. After Congress provided for the exclusive rights of reproduction and distribution in the original Copyright Act (1790), it subsequently has added the following rights, according to Samuels:

• a translation right (1870);
• an expanded translation right (1909);
• a public performance right for dramatic works (1856);
• a public performance right for musical works (1897);
• a public display right (1976);
• rights of attribution and integrity (1990); and
• a public performance right for digital audio transmissions of sound recordings (1995).

This expansion of eligible works and rights is matched by the repeated extensions of copyright’s term.

Duration: As many people realize, copyright lasts a long time. The growth of copyright duration can be summarized as follows:

• 14 years (one 14-year renewal) (1790);
• 28 years (one 14-year renewal) (1831);
• 28 years (one 28-year renewal) (1909);
• author’s life plus 50 years (1976);
• author’s life plus 70 years (1998).

What fewer people may realize is how much longer copyright lasts compared to other forms of intellectual property. The baseline rule for the duration of copyright protection is “life plus seventy.” If one assumes a person begins creating copyright eligible works at 18 years of age and lives to the average U.S. life expectancy of 78 years, one can expect copyright protection to last on that work for 130 years. This means at least one full generation will pass before that work falls into the public domain.

In contrast, patents last 20 years at most, and trademarks last only for 10 year terms. (A trademark owner may renew his mark for an infinite number of 10-year terms, but the owner must follow a number of renewal formalities, and the mark must continue to be used in commerce.) Since copyright and patent both are provided for in the same Constitutional provision, a comparison of terms between copyrights and patents is appropriate: in sum, copyright may last more than 6 times as long as the longest patent term depending upon birth, death, and creation dates.

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In summary, copyright legitimately affects the average citizen engaging in the most basic of creative acts in a digitally, networked economy, and does so for a longer period of time than the other forms of federal intellectual property. If you send an e-mail that contains any original or creative thought, there is a copyright implication. Cut or copy an image and paste it into a Web page? There’s a copyright implication. Reformat a DVD so you can watch it on your iPod, and there is a copyright implication. Virtually everything about digital content –- from its creation and archiving to its reformatting and distribution –- involves copyright law.

Even everyday events or circumstances that have nothing to do with a digital lifestyle seem to involve copyright. Have a restaurant staff sing “Happy Birthday” during your child’s birthday party? There’s a copyright implication. Watch a playoff game during a church gathering, and there’s a copyright implication. Perform an asana in a heated room? There may be a copyright implication.

As of this writing, breathing does not implicate copyright in any way. Beyond that, however, many of life’s daily activities somehow implicate copyright. Just the mere fact that the average person now has to think about these issues attests to the importance copyright now has in contemporary American society.

© Copyright 2009, Core Copyright

Editor’s Note: Clarification issued. See Errata & Clarifications page.