The Concept & History of Copyright and Sources of Law
As with much of the law in the United States today, copyright law has its origins in the laws of England. The motivations underlying copyright law today, however, are quite different from those which led to its original creation in England several hundred years ago. While the following discussion is somewhat less exciting than much of what you are used to reading, it is important that you gain a general understanding of the history and evolution of copyright law.
Power to the Printers
Until the advent of the printing press, nobody needed protection against others who might steal their work; the process of copying books was so tedious that few copies of most books were ever made. But during the mid-sixteenth century, the Stationers’ Company was established by a group of printers who agreed among themselves that they would not print books which another was already printing. The fatal flaw with their idea was that new printers could show up with their own presses and print anything they liked. In order to avoid this competition, the Stationers’ Company petitioned the King for a monopoly, which was granted. Of course, the monopoly came with a catch - a censorship system gave the King the ability to control what was printed.
This exclusive right to print copies of books - a copyright - is the ultimate source of today’s body of copyright law in the United States and across the world.
Power to the Authors
A further issue in copyright law is what rights to these works should be protected, and how. This will automatically force us to consider why we protect the works in the first place. When the goal was to protect printers (and control what information reached the people), the Stationers’ Company absolute monopoly was the result. If the goal is instead simply to give an author total ownership of anything she creates, then copyright protection might logically need to last forever, and might prevent anyone from using any part of the work for any reason without the author’s permission – an absolute monopoly again, but this time in favor of the authors (an therefore spread out a lot more). If the goal of copyright law is to maximize the social value of the work, we would be led in a different direction. And if the goal is to encourage creativity and productivity, we might again be led to a different result.
Most would say that some combination of these goals is what we seek. Certainly, copyright law is no longer intended to provide absolute governmental censorship power, nor is it intended to give a few wealthy individuals a valuable monopoly over the printing industry. The first shift in the goal of copyright law came with the
American Copyright Law
Colonial copyright law, as discussed in Chapter 1, was largely inspired by the
EXAMPLE: Saucy is an up-and-coming photographer in the late 1800’s, when the technology was still new and mysterious. In 1882, after months of effort, he convinces a young but famous playwright, Oscar Grouch, to agree to pose for a photograph. Saucy takes great pains to arrange the backdrop, drapes, Grouch’s outfit, and other visual aspects of the photograph in order to produce “a useful, new, harmonious, characteristic and graceful picture...entirely from his own original mental conception.” He toils over ways in which to pose the great author. He contemplates the various lighting options and the effects of light on his subject’s face and frills. He finally produces a scene, and a photograph, which he believes worthy of the playwright’s reputation and his own aspirations. A lithograph company soon makes and sells 85,000 copies of the photo without Saucy’s permission. Despite the lithograph company’s argument that the 1865 addition of photographs by Congress was unconstitutional, the Supreme Court would have good reason to uphold the lower court’s finding for the plaintiff, Saucy. See
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (concerning the photograph titled “Oscar Wilde No. 18").
While this history may seem irrelevant to working as a paralegal in the twenty-first century, it will later prove quite helpful to you in understanding copyright law. Perhaps the most important development during the latter half of the nineteenth century was the emergence of international copyright law. While this course will focus primarily on the law of the United States, protecting your client’s interests in her works requires an understanding of modern international copyright law, and that law has its roots in the 1886 Berne Convention. International issues will be discussed in more detail toward the end of Chapter 2, but it is noteworthy that the original Berne Convention was signed by only ten nations in 1886 and that as of 2017, 171 nations are parties to the agreement.
The Copyright Act of 1909
While we will not go into great detail here, you should know that the
The basic idea of preventing people from making copies of books without permission is still the main concept underlying copyright protection, although the way we choose to achieve that goal is by no means a simple matter. After all, we no longer deal solely with books printed on paper; musical works, art, and digital works, to name just a few, are included within the scope of protection.
One major issue in copyright law is, therefore, what should be protected based on our idea of what is proper. This is separate from the question of what the law actually protects. While we usually do not deal with normative questions of this sort, it is important to understand that copyright law is very much in flux today. With the increasingly international nature of communication and the ever-changing technological landscape, copyright law cannot always keep current. Therefore, convincing a court that some new form of transmission constitutes a “writing,” or that some new form of expression should fall under the definition of a protected “work,” becomes a matter of arguing that this should be the case. After all, it is quite difficult to claim that the law as it stands intended to protect a form of expression which did not even exist at the time the law was passed!
Consider the fact that at one time there was a question as to whether computer games, generated by computer code, were “fixed” writings that could be copyrighted. See, e.g.,
All references to §101 and other sections discussed in the copyright chapters of this courseware are sections of the
A further note on references:
Throughout this chapter we will refer to House Report No. 94-1476, 94th Cong., 2d Sess. (1976). The quotations from, and references to the House Report are selections from more extensive quotations of this House Report found in Copyright for the Nineties, Gorman and Ginsburg, 4th ed. The Michie Company (1993). These will be cited as “1976 House Report, p. XX ” where the page number is the beginning of the Report quote as found in Gorman.
The relevant text of the House Report can also often be found in the notes of the section of Title 17 under discussion, under the heading “History; Ancillary Laws and Directives,” but references to Gorman are maintained for the sake of continuity and consistency.