Copyright Law and Practice
by William F. Patry

Copyright © 1994, 2000 by The Bureau of National Affairs, Inc.
Reprinted with permission.

Table of Contents:

Chapter 1

- Introduction

- England and the Statute of Anne

- The Colonies and Copyright

- The Constitutional Clause

- The First Copyright Act

- Statutory Revision

- Amendments to the 1909 Act

- The 1976 Act

- Amendments to the 1976 Act


- Amendments to the 1976 Act

- The Digital Millennium Copyright Act

Chapter 1 – Introduction

Before the 1976 Copyright Act swept virtually all copyrightable subject matter within the exclusive domain of federal protection, the term “copyright” implied a statutory right created by Congress in order to “Promote the Progress of Science.”1 Our first copyright act, in 1790, protected only maps, charts, and books. Protection gradually was extended to musical compositions and graphic works. In the middle of the nineteenth century, photography was developed and then protected, followed at the end of the century by motion pictures (although they were protected as photographs). As the twentieth century comes to a close, digital technology and multimedia forms of authorship seriously challenge the gradual, compartmentalized approach to granting new rights and new subject matter: a series of 1s and 0s digitally transmitted appear the same regardless of whether the work being transmitted is a novel, a motion picture, or a sound recording. The digital revolution also requires us to rethink the administration of copyright: the existing nineteenth-century system of deposit of “hard copies” of books and examination copies with the Copyright Office is clearly unsuited for works that are delivered only via computers or satellites.

The last general revision, in 1976, made some strides toward a more liberal system of copyright by vesting copyright automatically from the moment of creation and fixation. Contrary to common usage, therefore, one does not “copyright” a work, nor does the Copyright Office grant copyrights. Instead, if desired, a claim to copyright is submitted to the Copyright Office, which reviews the application and the deposit copy of the work for compliance with the requirements of the Act. If the Copyright Office finds that the requirements of the Act have been met, it issues a certificate of registration. If the Copyright Office determines that the requirements have not been met, it refuses registration. Unlike patent applications, certificates of registration are generally issued {Page 2} without any search of earlier works.2 Also unlike a patented work, a copyrighted work need not be novel or “nonobvious.” It need only be “original”; that is, it must be the result of independent creation (i.e., not mere copying) and must contain a modest or minimal amount of creative effort.3 Thus, while a patentee may exclude the claim of another individual who later independently develops the same invention, a person working independently does not infringe another’s copyright even though the resulting work is identical to an earlier copyrighted work. In fact, such a subsequent creator can secure a copyright for his or her work and enforce it against all others except, of course, the first copyright owner.

After an initial act in 1790, omnibus revisions to the copyright statutes occurred in 1831, 1870, 1909, and 1976. The 1976 Act modernized the antiquated 1909 statute and struck some reasonable social compromises. The 1976 Act introduced a number of complex exemptions and compulsory licenses governing new technological uses of copyrighted works, while leaving intact centuries of Anglo-American case law on such fundamental concepts as authorship, originality, and infringement. There have been a number of amendments to the 1976 Act. The Berne Implementation Act of 1988 abolished the mandatory notice requirement for published works, but added a complicated two-tier system for registration as a prerequisite to the bringing of an infringement action. In 1992, vestiges of the harsh renewal system that originated with the 1710 English Statute of Anne were mitigated by making renewal automatic for works first published between 1964 and 1977 (the last year a renewal {Page 3} scheme applied).4 In 1994, significant changes were made to the enforcement and examination sections.

This history bears out the wisdom of former Assistant Register of Copyrights Richard DeWolf:

The progress of copyright law does not take place by revolutions, but by successive stages. It resembles the growth of a city, in which, as time goes on, some parts are torn down and others are devoted to new uses, while the plan remains the same and the great historic structures are preserved.5

In view of this patchwork process, it will be profitable both to review the “great historic structures,” and to discover how they have been put to adaptive reuse, to borrow an analogy from architecture.

Next section: England and the Statute of Anne

1 U.S.Const. art. I, §8, cl.8.

2 One exception to this general rule involves applications for computer color-encoded versions of black and white motion pictures. In a Final Regulation issued on August 9, 1988, 53 Fed. Reg. 29,887, the Copyright Office announced that where registration is sought for a computer color-encoded version of a black and white motion picture, one complete deposit of the best edition of the black and white version (in addition to the color-encoded version) must be deposited. One stated purpose of this requirement was to “enable the [Copyright Office] examiner to determine better whether the colorized version satisfies the standards for copyright registration . . . .” Another stated purpose was to enrich the collections of the Library of Congress “since in many cases the older black and white films were never registered or otherwise deposited with the Library.” The persuasiveness of the examination rationale is undercut by the regulation’s failure to also require deposit of the black and white version of a television program when a claim to copyright in a colorized version is sought, and by the requirement that the best edition of the black and white version of a motion picture (typically 35mm format) be deposited. One may assume, therefore, that deposit for the benefit of the Library of Congress was the decisive factor leading to the regulation. While increasing the Library’s collections is certainly laudable, the propriety of doing so through the Copyright Office’s registration requirements for derivative works has been strongly criticized. Perhaps the decision should best be understood as evolving out of the unique political environment then present, and, one hopes, not as precedent for future similar actions.

3 See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

4 See Chapter 6, text at notes 190-201.

5 R. DeWolf, An Outline of Copyright Law viii (1925).