Copyright in Cyberspace: Introduction to Copyright Law

Stacey L. Dogan
Northeastern University School of Law
Section One | Section Two | Section Three | Section Four | Section Five |

General. United States copyright law has both Constitutional and statutory foundations. Article I, section 8, clause 8 of the Constitution authorizes Congress 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." The clause reflects an incentive-based view of intellectual property: in order to encourage authors and inventors to write and to innovate, Congress may pass copyright and patent laws giving them exclusive rights in their creations for finite periods. The clause arguably also includes a negative implication: Congress should not grant more than the level of protection necessary to achieve this incentive-based goal, lest it deprive the public of the tools it needs to engage in further creation. The Copyright Act of 1976, 17 U.S.C. 101 et seq., represents Congress's most recent attempt to achieve this balance in the realm of creative expression.

Eligible works. The Copyright Act makes eligible "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." 17 U.S.C. 102(a). In its non-exhaustive list of protected categories, Congress included literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. Id. Although this was not always the case, under the current Copyright Act works are entitled to protection as soon as they are fixed in a tangible medium. Authors need not comply with any formalities to obtain a copyright, although U.S. citizens must register their work with the Copyright Office in order to file an infringement action. See 17 U.S.C. 411.

In contrast to patent law, which protects utilitarian inventions, copyright purports to protect only the expression of theories, facts, systems, and ideas -- not the theories, facts, systems or ideas themselves. Section 102(b) of the Copyright Act expressly prohibits protection of any "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Of course, the line between idea and expression is an inherently arbitrary one; as Judge Learned Hand wrote in 1930, "Nobody has ever been able to fix that boundary, and nobody ever can." Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930), cert. denied, 282 U.S. 902 (1931). Nonetheless, courts continue to struggle with drawing the line between protected expression, which imitators may not copy, and unprotected ideas, which are free for the taking.

Despite its apparent hostility to functional creations, moreover, the Copyright Act does protect computer programs, which are, by their nature, an amalgam of expression and functionality. See, e.g., id. 101 (definition of computer program), 117 (defining limitations on exclusive rights relating to computer programs). The fascinating and ever-evolving history of copyright protection for computer software is beyond the scope of this module; for our purposes, we will simply assume, as courts have unanimously held, that computer programs qualify as "literary works" under the Copyright Act and enjoy the protections afforded other copyrightable works. See, e.g., Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983); see also Lotus v. Borland, 49 F.3d 807 (1st Cir. 1995); Computer Associates, Inc. v. Altai, 982 F.2d 693 (2d Cir. 1992).

Ownership. As a general matter, the copyright in a work initially belongs to the creator of the work. In the case of "works for hire" -- works created by employees in the scope of their employment -- the employer is deemed to be the author and the owner of the copyright. 17 U.S.C. 201(a,b); see Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) (listing factors to consider in deciding whether work is work for hire). Special rules apply to joint works and collective works. 17 U.S.C. 101, 201(a,c). Independent contractors -- those who are paid to create works for others but do not meet the statutory definition of "employee" -- own the copyright to the works that they create.

Copyright rights, infringement, and fair use. Copyright vests its owners with a number of "exclusive rights" -- i.e., the right to exclude others from using the copyrighted work in particular ways during the term of the copyright. Copyright owners may license others to exercise some or all of these exclusive rights. Section 106 of the Copyright Act lists the owner's exclusive rights, including the right to reproduce copies of the work, to distribute the work, to display the work, and to prepare derivative works. We will explore each of these exclusive rights in greater detail in Section 3.

Infringement occurs when a party, without the permission of the copyright owner, performs an act that falls within the owner's exclusive rights. Someone who makes and sells a high-quality photocopy of a copyrighted photograph, for example, has probably infringed the rights of the owner of the copyright in the photo. The Copyright Act provides for both civil and criminal remedies for copyright infringement. See 17 U.S.C. 501-506.

The Copyright Act also contains a number of important limitations on copyright owners' exclusive rights. See id. 107-121. Most important, for our purposes, is the fair use provision. Id. 107. Congress included section 107 in the 1976 Copyright Act to codify a longstanding common law doctrine that allowed certain uses of copyrighted works without the owner's permission. The fair use inquiry involves a balancing of a number of equitable factors to determine, on a case-by-case basis, whether the particular use should be allowed. We will explore fair use in Section 4 below.

Term. The copyright term has changed several times in recent years, with each revision resulting in a longer period of protection. The 1998 Sonny Bono Term Extension Act brought the statutory term to life plus seventy years for works by known individual authors, and up to 120 years from creation for "works made for hire" -- works created by employees in the course of their employment. For a comprehensive chart of the copyright term for works created at various times, visit Professor Laura Gasaway's site, When Works Pass into the Public Domain.Soon after passage of the Sonny Bono Term Extension Act, Eldritch Press filed a lawsuit challenging its constitutionality. Harvard's Berkman Center (which, together with Hale & Dorr, represents the plaintiffs) has posted the complaint online at

General copyright resources. The Web offers a rich universe of materials on copyright law, which you are encouraged to explore. The United States Copyright Office Web site provides a Copyright Basics guide, as well as links to the Copyright Act, to new legislation, and to the regulations followed by the Office in evaluating and registering copyrighted works. Stanford University offers a fair use site. The World Intellectual Property Organization Home Page gives information on international copyright treaties and related issues. Cornell Law School's Legal Information Institute has a Copyright Law collection that you may find helpful.

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