History of inventions and copyright protections

Terry Fischer Disaggregation Speech

Federal Copyright Law originates in a 1790 statute, adopted under the auspices of Article I, Section 8, Clause 8 of the Constitution Only 3 kinds of works were protected under the original statute: “Books, maps, charts” [later subsumed in general category of “all the writings of an author” (1909) Over the course of the nineteenth and twentieth century, Congress and the courts cooperated in expanding the set of protected creations “Prints” are added by statute in 1802 “Musical Compositions” in 1831 “Dramatic Works” In effect, were added to the galaxy by an 1856 statute granting the owners of copyrights in books the right to control public performance of their works – the only form of protection truly valuable to playwrights An extension confirmed in subsequent statutes “Photographs” were added by statute 1865

• In the 1883 Burrow-Giles case, the SCt rejected a constitutional challenge to this provision, but only because the posed, studio photo of Oscar Wilde at issue in the case was, in the court’s judgment a “useful, new, harmonious, characteristic, and graceful picture.”

Gradually the aesthetic standard implicit in this judgment was softened, and copyright protection was tacitly extended to photos of all sorts So nowadays, not only is xeroxing a landscape photograph clearly illegal, but even taking a substantially similar photo may give rise to an infringement claim

• Arguably, for example, Ansel Adams famous photograph of the snake river is infringed by this recent calendar picture

Photographs can even be infringed by copies in other media For example, in the judgment of the Second Circuit,

• this photo was infringed by
• this sculpture, despite the mockery plainly evident in the latter

“paintings; drawings; and chromos” were added to the statute in 1870 as were “statues”; meaning 3-dimensional works of fine art and “artistic models or designs” (1870) later subsumed in the broader category of “works of art” and “reproductions of works of arts” (1909) Around the turn of the century, Advertisements were accepted into the fold (1903) During the 19th c., courts had generally been hostile to the extension of copyright to ads – on the ground that they did nothing to “stimulate original investigation whether in literature, science or art, for the betterment of the people.”: [Bracha: “In J.L. Mott Iron Works, for example, the court stated that the copyright law “sought to It found that plaintiff’s “work” was “a mere priced catalogue illustrated with pictures of wares offered for sale” --L. Mott Iron Works v. Clow, 82 F. 316, 318-19 (7th Cir. 1897); See also: Baker v. Selden, 101 U.S. 105-107

• This position is famously rejected by Justice Holmes in Bleistein (1903), which extended copyright protection to a circus poster:

Holmes reasoned: “A picture is none the less a picture, and none the less a subject of copyright that it is used for an advertisement.” Motion Pictures are invented by Thomas Edison in the late 19th c. By 1903, an intermediate appellate court had recognized them as copyrightable subject matter Edison v. Lubin, 122 F. 240 (3d Cir. 1903). “Lectures, sermons & addresses” are added to the list by statute in 1909

• Growth continues in the 20th century

“Fictional characters” and “plots” are recognized by judicial decisions as objects of protection

An 1948 Copyright Office regulation, construing a provision of the 1909 statute abandoning the restriction to “fine art,” upheld by the SCt in Mazer (1954) extended copyright protection to useful objects, so long as their aesthetic and functional aspects were “conceptually separable” “Sound recordings” – as distinct from the compositions they embody – were added in 1972

Pantomimes and Choreographic works were formally added as part of the 1976 general reform of the statute Software, formally, in 1978

Finally, Architecture was grudgingly given special protection by statute in 1990, in response to the United States’ belated accession to the Berne Convention

• Two gradual conceptual shifts underlie this steady expansion of the zone of coverage

The first, nicely traced by Oren Bracha in his dissertation in progress, is a movement from a conception of copyright as “trade specific regulation” to a conception that sees copyright as founded on the general principle of the right of creators to control their original works A change partially completed in the 1909 general reform of the Copyright Statute and fully completed in the 1976 Reform The second, emphasized by Peter Jaszi, is a change in what copyright is thought to protect: from the text to the “work” At the start of the 19th c., lawyers and Js thought that copyright law protected the sequence of words used in a book against verbatim reproduction By the early 20th century century, they thought it shielded the market value of the underlying work no matter how expressed The effect of this reconceptualization was to render illegal many forms of unauthorized use – including translations, abridgments, and motion-picture adaptations

Digital Media Timeline

First Video Game Invented 1948 CE http://www.youtube.com/watch?v=s2E9iSQfGdg

Software Code circa 1950sCE http://upload.wikimedia.org/wikipedia/commons/b/b7/Html-source-code.png

Videotape Machine Invented 1956 CE http://upload.wikimedia.org/wikipedia/commons/4/4e/Ampex-avr3.jpg

ARPANET comes online 1969 CE http://upload.wikimedia.org/wikipedia/en/6/6e/Arpnet-map-march-1977.png

Copyright Act of 1976 1976 CE X

First Cell Phone in U.S. 1983 CE http://www.bignet.org/regional/program/2005ISSC/StephanGardner/bigcellphone.jpg

Berne Convention 1988 CE X

Tim Berners-Lee invents Web 1989 CE http://en.wikipedia.org/wiki/Image:First_Web_Server.jpg]

GPL Introduced 1989 CE http://www.fsfeurope.org/projects/gplv3/GPLv3-logo-red.png

Uruguay Round 1994 CE X

Netscape Navigator 1.0 1994 CE http://techluver.com/wp-content/uploads/2007/12/netscape_logo.jpg

CD-ROMs Standardized 1995 CE http://upload.wikimedia.org/wikipedia/commons/c/ca/CD-ROM.png

AOL introduces Instant Messenger 1997 CE http://www.exit-reality.net/screenshots/aim17.gif

Sonny Bono Copyright Act 1998 CE http://www.unc.edu/~unclng/bono.jpg]

Digital Millennium Copyright Act 1998 CE X

Google Launches 1998 CE http://library2go.files.wordpress.com/2008/04/google.jpg

Napster Starts 1999 CE http://www.pocketpicks.co.uk/latest/wp-content/uploads/2008/03/napster4_logo_270x242.jpg

iPod Released 2001 CE http://guides.macrumors.com/Image:Ipod1_2.jpg

Napster Shuts Down 2001 CE X

Creative Commons Launches 2002 CE http://mirrors.creativecommons.org/presskit/icons/cc.large.png

MySpace.com launches 2003 CE http://img183.imageshack.us/img183/3013/screenafterbqa1.png

iTunes Music Store launches 2003 CE http://images.apple.com/ca/itunes/store/images/index_hero20070905.png

Flickr.com launches 2004 CE http://www.aoddesign.com/blog/resources/flickr-logo-icons/

Family Entertainment and Copyright Act 2005 CE X

YouTube.com launches 2005 CE http://www.youtube.com/watch?v=jHjFxJVeCQs

Notable Dates in US Copyright

from US Government Copyright Site August 18, 1787

   James Madison submitted to the framers of the Constitution a provision “to secure to literary authors their copyrights for a limited time.”

June 23, 1789

   First federal bill relating to copyrights (H.R. 10) presented to the first Congress.

May 31, 1790

   First copyright law enacted under the new U.S. Constitution. Term of 14 years with privilege of renewal for term of 14 years. Books, maps, and charts protected. Copyright registration made in the U.S. District Court where the author or proprietor resided.

June 9, 1790

   First copyright entry, The Philadelphia Spelling Book by John Barry, registered in the U.S. District Court of Pennsylvania.

April 29, 1802

   Prints added to protected works.

February 3, 1831

   First general revision of the copyright law. Music added to works protected against unauthorized printing and vending. First term of copyright extended to 28 years with privilege of renewal for term of 14 years. 

August 18, 1856

   Dramatic compositions added to protected works. 

March 3, 1865

   Photographs added to protected works. 

July 8, 1870

   Second general revision of the copyright law. Copyright activities, including deposit and registration, centralized in the Library of Congress. Works of art added to protected works. Act reserved to authors the right to create certain derivative works including translations and dramatizations. Indexing of the record of registrations began. 

March 3, 1891

   First U.S. copyright law authorizing establishment of copyright relations with foreign countries. Records of works registered, now called the Catalog of Copyright Entries, published in book form for the first time in July 1891. 

January 6, 1897

   Music protected against unauthorized public performance. 

February 19, 1897

   Copyright Office established as a separate department of the Library of Congress. Position of Register of Copyrights created. 

July 1, 1909

   Effective date of third general revision of the copyright law. Admission of certain classes of unpublished works to copyright registration. Term of statutory protection for a work copyrighted in published form measured from the date of publication of the work. Renewal term extended from 14 to 28 years. 

August 24, 1912

   Motion pictures, previously registered as photographs, added to 
   classes of protected works. 

July 13, 1914

   President Wilson proclaimed U.S. adherence to Buenos Aires Copyright Convention of 1910, establishing convention protection between the United States and certain Latin American nations. 

July 1, 1940

   Effective date of transfer of jurisdiction for the registration of commercial prints and labels from the Patent Office to the Copyright Office. 

July 30, 1947

   Copyright law codified into positive law as title 17 of the U.S. Code. 

January 1, 1953

   Recording and performing rights extended to nondramatic literary works. 

September 16, 1955

   Effective date of the coming into force in the United States of the Universal Copyright Convention as signed at Geneva, Switzerland, on September 6, 1952. Proclaimed by President Eisenhower. Also, date of related changes in title 17 of the U.S. Code. 

September 19, 1962

   First of nine special acts extending terms of subsisting renewal copyrights pending Congressional action on general copyright law revision. 

February 15, 1972

   Effective date of act extending limited copyright protection to sound recordings fixed and first published on or after this date. 

March 10, 1974

   United States became a member of the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, which came into force on April 18, 1973. 

July 10, 1974

   United States became party to the 1971 revision of the Universal Copyright Convention as revised at Paris, France. 

October 19, 1976

   Fourth general revision of the copyright law signed by President Ford. 

January 1, 1978

   Effective date of principal provisions of the 1976 copyright law. The term of protection for works created on or after this date consists of the life of the author and 50 years after the author's death. Numerous other provisions modernized the law. 

December 12, 1980

   Copyright law amended regarding computer programs. 

May 24, 1982

   Section 506(a) amended to provide that persons who infringe copyright willfully and for purposes of commercial advantage or private financial gain shall be punished as provided in Section 2319 of title 18 of the U.S. Code, "Crimes and Criminal Procedure." 

October 4, 1984

   Effective date of Record Rental Amendments of 1984. Grants the owner of copyright in a sound recording the right to authorize or prohibit the rental, lease, or lending of phonorecords for direct or indirect commercial purposes. 

November 8, 1984

   Federal statutory protection for mask works became available under the Semiconductor Chip Protection Act with the Copyright Office assuming administrative responsibility. Copyright Office began registration of claims to protection on January 7, 1985. 

June 30, 1986

   Manufacturing clause of the Copyright Act expired. 

March 1, 1989

   United States adhered to the Berne Convention for the Protection of Literary and Artistic Works. 

November 15, 1990

   Section 511 added to copyright law. Provided that states and state employees and instrumentalities are not immune under the Eleventh Amendment from suit for copyright infringement. 

December 1, 1990

   Effective date of the Computer Software Rental Amendments Act of 1990. Grants the owner of copyright in computer programs the exclusive right to authorize or prohibit the rental, lease, or lending of the program for direct or indirect commercial purposes. 

December 1, 1990

   Protection extended to architectural works. Section 106A added to copyright law by Visual Artists Rights Act of 1990. Granted to visual artists certain moral rights of attribution and integrity. 

June 26, 1992

   Renewal registration became optional. Works copyrighted between January 1, 1964, and December 31, 1977, automatically renewed even if registration not made. 

October 28, 1992

   Digital Audio Home Recording Act required serial copy management systems in digital audio recorders and imposed royalties on sale of digital audio recording devices and media. Royalties are collected, invested, and distributed among the owners of sound recording and musical compositions, certain performing artists, and/or their representatives. Clarified legality of home taping of analog and digital sound recordings for private noncommercial use. 

December 8, 1993

   North American Free Trade Agreement Implementation Act (NAFTA) extended retroactive copyright protection to certain motion pictures first fixed in Canada or Mexico between January 1, 1978, and March 1, 1989, and published anywhere without a copyright notice; and/or to any work embodied in them; made permanent the prohibition of sound recordings rental. 

December 17, 1993

   Copyright Royalty Tribunal Reform Act of 1993 eliminated the CRT and replaced it with ad hoc Copyright Arbitration Royalty Panels administered by the Librarian of Congress and the Copyright Office. 

December 8, 1994

   Uruguay Round Agreements Act restored copyright to certain foreign works under protection in the source country but in the public domain in the United States; repealed sunset of the Software Rental Amendments Act of 1990; and created legal measures to prohibit the unauthorized fixation and trafficking in sound recordings of live musical performances and music videos. 

November 16, 1997

   The No Electronic Theft Act defined “financial gain” in relation to copyright infringement and set penalties for willfully infringing a copyright either for purposes of commercial advantage or private financial gain or by reproducing or distributing, including by electronic means phonorecords of a certain value. 

October 27, 1998

   The Sonny Bono Copyright Term Extension Act extended the term of copyright protection for most works to the life of the author plus 70 years after the author's death.

October 28, 1998

   The Digital Millennium Copyright Act provided for the implementation of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty; limited certain online infringement liability for Internet service providers; created an exemption permitting a temporary reproduction of a computer program made by activating a computer in the course of maintenance or repair; clarified the policy role of the Copyright Office; and created a form of protection for vessel hulls.

November 2, 2002

   The Technology, Education, and Copyright Harmonization (TEACH) Act of 2002 provided for the use of copyrighted works by accredited nonprofit educational institutions in distance education.