The current copyright law in the United States, the Copyright Act of 1976 (which became effective on January 1, 1978), represents a substantial change in the way copyright protection comes into being. Before that Act, a work had to be published with a copyright notice, and the claim to copyright registered in the U.S. Copyright Office, for the work to be fully protected. But now, according to Section 102(a) of the Copyright Act:

Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. {FN14: 17 U.S.C. §102(a)}

Copyright protection “subsists,” which means that it comes into being, whenever something original is fixed in a medium of expression – in other words, at the moment of its creation. We’ll use the term “copyrighted” to mean “protected by copyright,” although “copyrighted” incorrectly implies that some action other than the fixing of the work in a medium of expression was required.

Before the Copyright Act of 1976, an unpublished work was not protected by federal law. Instead, any protection would have to come from state law, either some type of state copyright or a misappropriation action. The Copyright Act of 1976 included unpublished works within its scope, and explicitly preempted any state laws that might provide a similar protection. {FN15: 17 U.S.C. §301}

II.A.1. Fixation of a Work

Section 101 defines when something has been fixed:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. {FN16: 17 U.S.C. §101}

Fixation can be the writing of a work on a piece of paper, the typing of a work into a computer (assuming it is then stored on a disk or even in RAM), or any other act that will enable the work to be perceived later by somebody else. It doesn’t include the speaking of a work, unless that work was previously written down or is recorded at the time it is spoken, or having the work in your head. Works that are not fixed are protected by a state statute or a common law theory, if at all.

The fixed work does not have to be directly perceivable by a person but can be one that requires some machine or device for its display or performance. In a report that accompanied the passage of the Copyright Act of 1976, its drafters said:

This broad language is intended to avoid the artificial and largely unjustifiable distinctions . . . under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed. Under the bill it makes no difference what the form, manner, or medium of fixation may be – whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device “now known or later developed.” {FN17: H.R. Rep. No. 94-1476 at 52}

Works can be fixed in either “copies” or “phonorecords,” which are defined in Section 101:

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed. {FN18: 17 U.S.C. §101}

As noted by the Act’s drafters, “‘copies’ and ‘phonorecords’ together comprise all of the material objects in which copyrightable works are capable of being fixed.” {FN19: H.R. Rep. No. 94-1476 at 53} If it’s not a phonorecord, it’s a copy. While the distinction between phonorecords and copies may be important in some aspects of the copyright law, and reflects a historically different way of treating them, in most cases discussed here it will make no difference.

The drafters noted a difference between the work and the medium of expression in which it is fixed:

The definitions of these terms in section 101, together with their usage in section 102 and throughout the bill, reflect a fundamental distinction between the “original work” which is the product of “authorship” and the multitude of material objects in which it can be embodied. Thus, in the sense of the bill, a “book” is not a work of authorship, but is a particular kind of “copy.” Instead, the author may write a “literary work,” which in turn can be embodied in a wide range of “copies” and “phonorecords,” including books, periodicals, computer punch cards, microfilm, tape recordings, and so forth. It is possible to have an “original work of authorship” without having a “copy” or “phonorecord” embodying it, and it is also possible to have a “copy” or “phonorecord” embodying something that does not qualify as an “original work of authorship.” The two essential elements – original work and tangible object – must merge through fixation in order to produce subject matter copyrightable under the statute. {FN20: H.R. Rep. No. 94-1476 at 53}

Section 101 also discusses when a work is created:

A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work. {FN21: 17 U.S.C. §101}

So, if you are writing a book or a computer program or anything else, when you have written part of it and take a break, you have created a work protected by copyright. When you write a little more, you create another work protected by its own copyright, although it includes the first copyrighted work.

II.A.2. Types of Works

Section 102(a) goes on to illustrate the types of works that are copyrightable:

Works of authorship include the following categories:

(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; and

(8) architectural works. {FN22: 17 U.S.C. §102(a)}

Of most interest to us, as we consider copyright protection of digital information such as computer programs or Web pages, are literary works, which Section 101 defines as

works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied. {FN23: 17 U.S.C. §101}

Computer programs, for example, are literary works. But programmers shouldn’t start comparing themselves to Shakespeare as authors of literary works, because the drafters of the Copyright Act noted that

The term “literary works” does not connote any criterion of literary merit or qualitative value: it includes catalogs, directories, and similar factual, reference, or instructional works and compilations of data. It also includes computer data bases, and computer programs to the extent that they incorporate authorship in the programmer’s expression of original ideas, as distinguished from the ideas themselves. {FN24: H.R. Rep. No. 94-1476 at 54}

They make the same observation about other works. Section 101 also defines “pictorial, graphic, and sculptural works,” “motion pictures,” and “architectural works.” Of possible interest to the protection of digital information are “audiovisual works” and “sound recordings,” because digital information may fall into these definitions, rather than the general “literary works”:

“Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

“Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. {FN25: 17 U.S.C. §101}

If a work is both an audiovisual work and a computer program (which is a literary work), the Copyright Office will accept a single registration that covers both aspects of the work. Because of this, it is most common to consider computer programs as literary works even though they also may have aspects of an audiovisual work.

While the Act specifies eight different categories for copyrighted works, with respect to copyrightability it makes no difference the category in which a work falls. All that is important for copyright protection to attach to the work is that it be original and fixed.

But the classification of a work will determine which of the protections available under copyright will be available for the work. For example, the public performance right only applies to sound recordings that are in digital form. {FN26: See 17 U.S.C. §106} Furthermore, the copyright laws contain a variety of special exceptions that apply to one type of work, or use of a work, and not another. {FN27: See 17 U.S.C. §§108-122} The copyright laws are a series of compromises, some general, some very specific, between the broad rights of the copyright owners and the public’s use of the work. Just because something may be allowed for one category of work in a particular situation doesn’t mean that it is allowed for other categories of works, or in other situations.

II.A.3. Originality Is Required

Besides fixation, the law requires originality for copyright protection. But the standard for originality is very low. The Supreme Court discussed that standard in one of its major copyright cases, Feist Publications v. Rural Telephone Service: {FN28: 499 U.S. 340, 18 USPQ2d 1275 (1991)}

To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 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 might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable. {FN29: 499 U.S. at 345-346, 18 USPQ2d at 1278 (citations omitted)}

Next section: Compilations, Collections, And Derivative Works