The Copyright Landscape

Article excerpt

Introducing U.S. Copyright Law BY K. MATTHEW DAMES

AS recently as 10 years ago, few outside the library world were interested in copyright. A handful of lawyers (such as David Nimnier and William Patry) devoted significant time to it, and media/entertainment companies took comfort in the security copyright provided. The average Joe Citizen, however, paid little attention to copyright. It was, after all, a backwater part of the law that most folks thought concerned only legal specialists and bookish policy wonks.

Then, all of a sudden, copyright became " hot." The Web's development as a commercial and distribution platform sparked the flame, and when entertainment and culture moved from analog to digital in the mid-'90s, copyright moved from those backwaters to center stage. Now, nearly a decade after massive technological, societal, and commercial changes have occurred in the way content is created, archived, distributed, and protected, Big C is its own newsmaker. Copyright is a shifting landscape, full of crevasses and potential volcanic eruptions. Despite this, surprisingly few people know anything about the Copyright Act of 1976.

COPYRIGHT AND INTELLECTUAL PROPERTY

It is common for the layperson to use the terms "copyright" and "intellectual property" interchangeably. This is incorrect. Copyright is but one of five principal forms of American intellectual property ("IP") law, a category that includes trademarks, patents, trade secrets, and licenses. Copyright is the law that protects original and creative thoughts, ideas, and concepts that are memorialized in some tangible form or method. Trademark law deals with the protection of symbols, drawings, words, or names that are used to distinguish one business from another. Patent law deals with the protection of original ideas, methods, processes, and machines that are unique, useful, and not obvious. Copyright, trademark, and patent laws are governed by federal law-for practical purposes, this means that courts should consistently interpret the statutes and regulations for the respective disciplines. Should there be a significant doctrinal difference among different federal courts, the U.S. Supreme Court decides the issue to enforce that consistency.

The remaining forms of intellectual property law are governed at the state level, meaning that the statutes and regulations for each respective body of law can differ significantly from state to state. Trade secret law deals with the protection of formulas, devices, or patterns that one business uses to give it a competitive advantage over another business. Licensing law is closely related to state contract law; licenses are contracts whereby a party that controls content (called a licensor) allows another party (called a licensee) to access that content in exchange for a fee pursuant to negotiated terms and conditions.

BRIEF HISTORY OF U.S. COPYRIGHT

U.S. copyright law is based upon old British laws that were adopted to benefit England's aristocratic publishing class. The Statute of Anne was England's first copyright law; Parliament passed it in 1710, and the law replaced The Stationer's Company, a guild that enforced a monopoly on publishing.

When the U.S. was being formed, most of the colonies passed and enforced their own copyright statutes. However, the drafters of the Constitution thought copyright was important enough an issue to make it part of the Constitution.1 Article 1, section 8, clause 8 says, "The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This clause is the constitutional authority for all of this country's copyright law, including the current law, the Copyright Act of 1976.

Congress passed the Copyright Act of 1976 (the "Act") in October 1976; it became effective in January 1978. This current Act contains a number of innovations, including the first time that fair use has been codified in a statute, the first time an author's rights in Section 106 have been made divisible, and the first time that a person can receive copyright for unpublished works. …