Foundations of Copyright Law

Foundations of Copyright Law

Copyright is a form of protection arising from the Patent and Copyright Clause of the U.S Constitution. Copyright protects the works of authors and artists to ensure their products are not unlawfully reproduced, distributed, performed, or displayed, acts that would deprive them of revenue and discourage further creative work. As new technologies have developed, copyright law has evolved to keep pace, thereby affording protection to works not originally contemplated by the framers of the Constitution, such computer programs.
The present act governing copyrights in the United States is the Copyright Act of 1976, which provides protection upon creation of a work in a fixed form rather than requiring publication of a work as a prerequisite to protection as did the previous Copyright Act of 1909. Rights arise automatically upon creation of a work, and no publication or registration with Copyright Office is required to secure copyright, although there are several advantages to registration.
Just as medieval merchants in guilds in English used trademarks on their wares to indicate the source of those products, mercantile in England prompted the first insistence upon protection for publication of books. When the invention of the printing press in about 1440 resulted in the ability to produce books by machine rather than by hand, bookbinders and printers demanded protection from copying of books. Authors also began to demand protection from unauthorized copying and demanded to share in the financial rewards the publishers ere winning. Finally, in 1710, Parliament enacted the first copyright statute, the Statute of Anne, which limited the formerly perpetual rights publishers were winning. Finally, in 1710, Parliament enacted the first copyright statute, the Statute of Anne, which limited the formerly perpetual rights publishers enjoyed to a period of fourteen years. Under the statute, damages for infringement were set at one penny for every sheet found in the infringer’s custody, one-half to go to the author, and one-half to go to the Crown. Authors were thus granted the right to control copying of their books. This grant of rights was called a copyright.
Just as trademark law protects the investment by merchants in the marks under which their goods are sold, copyright law protects the creators of books, music, and art by providing them with the exclusive right to reproduce their works and derive income from them. Protecting these rights fosters creative effort there would be little to be gained from investing and pouring effort into composing a song or writing a novel if others could reproduce the song or book at will without compensating its creator.
Not only is copyright at the center of the creative soul of artists, but it has a significant financial impact in the United States as well. Approximately 5 percent of the gross domestic products in the United States derive from copyright industries, including software, films, music, and television shows. Additionally, copyright piracy costs U.S. businesses an estimated $ 12.4 billion each year in lost revenues.
Copyright law in the United States stems from the Patent and Copyright Clause of the Constitution, which provides that Congress shall have the power “to promote the progress of science and useful arts, by securing for limited times to authors legislation to provide copyright protection for authors for limited period. Over time, the wording in the clause has been liberally interpreted to incorporate new technologies and protect new forms of expression as varieties of “writings”.
Congress enacted the first copyright act in 1790, and the first federal copy right registration was issued that same year to author John Barry for Philadelphia Spelling Book. Since 1790, the act has been subject to major revision on four occasions: in 1831, 1870, 1909, and 1976. The 1790 act provided copyright protection to maps, charts, and books, and set damages for infringement of published works in the sum of fifty cents for every sheet found in the infringer’s possession, one-half of the damages to go to the copyright owner, one-half to the federal government. Subsequent revisions to the 1790 act reflect a gradual expansion of the categories of works or “writings” that are entitled to protection. Thus, musical compositions, dramatic compositions, photographs, paintings, and sculpture were eventually included within the definition of copyrightable material. The present act provides protection to nearly anything that can be expressed in tangible form, including sound recordings, videotape, and computer software.
Copyright law strives to balance two competing interests; the interests of authors in protecting their works from unauthorized copying and the interest of the public in having the greatest possible access to works of authorship. United States copyright law is intended to stimulate the creation of new works of art, literature, music, sculpture, and other tangible forms of expression.

Until January 1,1978 (the effective date of the 1976 Copyright Act), the United States had a dual system of copyright protection in that a distinction was drawn between unpublished works and those that were published. Until 1978, authors had a perpetual common law right to their unpublished works. Thus, the author of an unpublished manuscript could exclude other from copying the material forever. Once the work published, however, the common law perpetual copyright was then provided a period of protection up to fifty-six years. Publication is the distribution of copies of a work to the public for sale or other transfer of ownership, by rental, lease, or lending.
Because this dual nature of copyright protection was complex, and the point at which works became published often led to controversy, the 1976 act eliminated the distinction between unpublished and published work and provides simply that a work is protected from its creation, that is, ad soon as it created or fixed in some tangible form. Thus, even an unpublished manuscript is governed by the 1976 act inasmuch as it is created when the author sets the words down onto paper or types them into a computer.
Works published before the 1976 act, for example, Ernest Hemingway’s A Farewell to Arms (published in 1929), are governed by the act in existence on the date of their publication. Hemingway’s book would thus be governed by the 1909 act.
Just as trademark rights arise from use and not from registration with the PTO, copyright rights arise from the creation of a work in fixed form and not from publication or registration or other action in the United States. No permission or application; however, just as securing a trademark registration from the right protection; however, just as securing a trademark registration from the PTO provides certain advantages to trademark owners, securing a copyright registration from the Copyright Office provides certain advantages to authors of works, including the following:
• Registration establishes a public record of the copyright claim;
• Before an infringement suit may be filed in court, registration is necessary for works of U.S origin;
• If made before or within five years of publication, registration will establish prima facie evidence in soured of the validity of the copyright and of the facts stated in the certificate; and
• If registration is made within there months after publication of the work or prior to an infringement of the work, statutory damages and attorneys; fees will be available to the copyright owner in court actions (otherwise, only an award of actual damages and lost profits is available to the copyright owner).
Copyright protection generally lasts until seventy years from the death of the author. The 1976 Copyright Act is found at 17 U.S.C. $ 101-1101. (See Appendix E).
The 1976 Copyright Act has been amended several times. In 1980, specific protection was afforded to computer programs as works entitled to copyright protection. In 1989, the United States joined the Berner Union, an organization now comprising more than one hundred and thirty-five nations, by entering into an international treaty called the Berner Convention for the Protection of Literary and Artistic Works. Just as the Paris Conventions for the Protection of Literary and Artistic Works. Just as the Paris Convention requires member nations to treat citizens of member nations as they do their own citizens with regard to trademarks, the Berner Convention requires member nations to treat citizens of member nations as they do their own citizens with regard to copyrights. To satisfy our obligations under the Berner treaty, Congress once again amended the 1976 Copyright Act by eliminating any requirement for a copyright notice to be used with a work (although use of the notice is recommended) and by requiring copyright applicants to submit two copies of a published work in which copyrights is claimed when they apply for copyright registration. In 1990, the Copyright Act was again amended to bring U.S. copyright law more into conformity with that of other Berne Union members, particularly with respect to rights of attribution and integrity for certain works of visual arts (see Chapter 11). The most recent significant amendment to the 1976 Copyright Act was enacted in late 1998, when Congress extended the duration of copyright to seventy years from an author’s death rather than fifty years from death as was previously the case. References in this text to the Copyright Act are references to the 1976 act.

The U.S. Copyright Office is a division of the Library of Congress and is located in Washington, DC. Its address and telephone number are as follows: register of Copyrights, Copyrights Office, Library of Congress, 101 Independence Avenue SE, Washington, DC 20559-6000 (2002/707-3000). Its chief officer is the Register of Copyrights, and its powers and procedures are established in the 1976 Copyright Act. The primary function of the Copyright Office is to issue copyright registration and serve as a depository for materials in which copyright is claimed. The Copyright Office is not permitted to give legal advice and will not offer guidance on matters such as disputes over the ownership of a copyright, suits against possible infringers, or other matters related to copyrights. It does, however, provide a variety of information, publications, circulars (information packets), and forms related to copyright, most of which are provided free of charge. Among the more useful publications and materials are the following:
• Forms for copyrights registration;
• Circular 1, “Copyright Basics”;
• Circular 2, “Publications of the Copyright Office”;
• Circular 3, “Copyright Native”;
• Circular 4, “Copyright Fees”;
• Circular 15, “Renewal of Copyright”;
• Circular 15a, “Duration of Copyright”;
• Circular 38a, “International Copyright Relation of the United States”;
• Circular 61, “Copyright Registration for Computer Program”;
• Kit 109, containing material, announcements, and forms relating to copyright registration for books; and
• Kit 113, containing material, announcement, and forms relating to copyright registration for computer programs.

To order copyright publication, write to:

Publication Section, LM-455
Copyright Office
Library of Congress
101 Independence Avenue SE
Washington, DC 20559-6000


At this stage of copyright protection and prosecution, IP professionals will typically be engaged in general legal research relating to copyright ability of clients’ works. Additionally, IP professionals should contact the Copyright Office and begin creating form files for forms and publications related to copyrights. The files should be maintained in a central location, and indexes to the forms and publications should be circulated to all other IP professionals, Finally, IP professionals should routinely monitor the Copyright Office web site to keep informs of new developments in copyright law, check fee schedules, and determine whether the Copyright Office has implemented new procedures.

Alternatively, you call the Copyright Office “Forms and Circulars Hotline” at (202) 707-9100 (twenty-four hours a day). Orders are recorded automatically and materials will be mailed to you as quickly as possible, usually within two weeks.
Selected circulars and announcements are available via facsimile
. Call (202) 707-2600 from any touch-tone telephone. Key in your fax number at the prompt and the document number of the item (s) you want. The item (s) will be transmitted to your fax machine. If you do not know the document number of the item (s) you want, you may request that a menu be faxed to you. You may order up to there items at a time. Copyright applications are not available by fax.
Finally, frequently requested Copyright Office Circulars, announcements, application forms, and the most recent proposed and final regulations are now available over the Internet. These documents may be examined and downloaded through the Library of Congress campus wide information system “LC Marvel”. To connect through the World Wide Web, enter this web site gives you access to information created by the Copyright Office and likes to a wide variety of other copyright resources. LC Marvel and World Wide Web access are available twenty-four hours a day, and no fees are charged to connect to these Internet resources.
The Copyright Office is in the process of implementing an electronic registration system that will enable applicants for registration to file their applications electronically and that will reduce processing time for registration.

In the United States, copyright law arises under the Patent and Copyright Clause of the Constitution. The U.S. copyright laws have been amended several times, and the current governing statute is the Copyright Act of 1976. Copyright ensures that an author or creator of a work will derive benefits from his or her creation and will be protected from unauthorized use or copying of a work. Under the Copyright Act of 1909, a work has to be published to be protected under the act. The 1976 act. The 1976 act eliminated the requirement of publication and provides that copyright is secures automatically when the work is created. No publication or registration is necessary to secure copy right protection, although there are certain advantages to registration of a copyright with the U.S. Copyright Office.

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