In today’s global digital economy, artists, authors, and companies have unprecedented opportunities to share their creative works with audiences worldwide. However, they also face significant challenges in the form of infringement and piracy.
To leverage these opportunities and respond to the threats, creators and industries increasingly rely on the ability to protect and enforce their copyrights effectively. Understanding copyright and how to protect it requires examining the core principles of copyright law: what it is, what it protects, and how to secure it.
The primary goal of copyright law is to encourage the creation and dissemination of works for the benefit of the public. By granting creators exclusive rights to authorize specific uses of their works, copyright provides economic incentives for the creation of new works and their availability in the marketplace.
This fundamental objective is enshrined in the U.S. Constitution. Article I, Section 8, Clause 8 states: "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 language grants Congress the power to establish a national copyright system, recognizing the vital role of knowledge dissemination for the new nation.
The framers of the Constitution were convinced that spreading knowledge was critical to the success of the United States, and that establishing a copyright system would be an efficient way to achieve this. More than 200 years later, the purpose of U.S. copyright law remains the same: to provide economic incentives for creativity that ultimately serve the public good.
The Supreme Court, in its 1975 decision in Twentieth Century Music Corp. v. Aiken, put it this way: "The immediate effect of our copyright law is to secure a fair return for an author’s creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good" (Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 1975).
Copyright protection extends beyond the U.S., safeguarding American creative works internationally. The United States is a signatory to several international agreements that establish minimum standards of copyright protection, which member countries are required to implement. These agreements, including the Berne Convention for the Protection of Literary and Artistic Works, the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), ensure that American creators are adequately protected against infringements in foreign countries.
Copyright is a federally granted property right that protects creators from certain unauthorized uses of their original works of authorship. The subject matter eligible for protection is outlined in the Copyright Act of 1976. Copyrightable works include literary, dramatic, musical, and artistic creations such as books, plays, music, lyrics, paintings, sculptures, video games, movies, sound recordings, and software.
For a work to be eligible for protection under the Copyright Act, it must be fixed in a "tangible medium of expression." For example, a literary work can be fixed in a book or even on the back of an envelope. A musical work can be fixed in sheet music, on tape, or in a digital file. A visual artwork can be fixed on a canvas, and a sculptural work can be fixed in stone.
However, copyright protection does not extend to ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. Copyright only protects the expression of an idea, not the idea itself. This principle, known as the "idea-expression dichotomy," ensures that only the original contributions the author has made to a work are protected, while the underlying ideas remain free for public use.
Under the Copyright Act, a copyright owner has exclusive rights to reproduce, adapt, distribute, publicly perform, and publicly display the work (or authorize others to do so). In the case of sound recordings, the copyright holder also has the right to perform the work publicly via digital audio transmission. These exclusive rights are freely transferable and may be licensed, sold, donated to charity, or bequeathed to heirs.
Despite granting exclusive rights, copyright law includes several important limitations. These limitations recognize that exceptions to the exclusive rights can further the fundamental goal of copyright by allowing for uses of copyrighted works that benefit the public. International copyright agreements, to which the U.S. is a signatory, set forth a number of specific exceptions that member states may implement.
Any additional exceptions must satisfy the "three-step test," which requires that the use must (1) be limited to "certain special cases," (2) not conflict with the normal exploitation of the work, and (3) not unreasonably prejudice the legitimate interests of the author. U.S. copyright law contains several exceptions and limitations to the exclusive rights of copyright holders, including in the following areas: library and archival copying, educational and nonprofit broadcasting for distance learning purposes, nonprofit live performances and displays, reproductions for visually impaired persons, and making copies of computer programs for archival and maintenance purposes.
Moreover, Section 107 of the Copyright Act codifies the doctrine of "fair use," which allows certain uses not explicitly covered by other statutory exceptions. Fair use is flexible and case-specific, but Section 107 provides a list of uses generally considered fair, including criticism, comment, news reporting, teaching, scholarship, and research.
When determining whether a particular use constitutes fair use, courts consider four factors: (1) the purpose and character of the use, including whether it is commercial or nonprofit educational use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used relative to the entire work; and (4) the effect of the use on the potential market or value of the copyrighted work.
Many people mistakenly believe that they must register their work with the U.S. Copyright Office to claim copyright protection. In fact, no registration or other action with the Copyright Office is required to secure copyright.
Copyright is automatically granted when a work is created, as long as the work meets the necessary threshold of originality. A work comes into being when it is "fixed in a copy or a phonorecord for the first time," in accordance with the Berne Convention, which states that the "enjoyment and exercise" of copyright "shall not be subject to any formality."
Although registration is not required, it offers several important benefits: registration establishes a public record of the copyright claim, registration is required before a copyright infringement suit can be filed in court (for U.S.-origin works), and if made before or within five years of publication, registration establishes prima facie evidence in court of the validity of the copyright and the facts stated in the registration certificate. If registration occurs within three months of first publication or before an infringement, the copyright owner is eligible for statutory damages and attorney’s fees.
Otherwise, only actual damages and profits may be awarded. Registration also allows the copyright holder to record the registration with U.S. Customs to protect against the importation of infringing copies.
To register a claim with the U.S. Copyright Office, the claimant must: (1) submit a properly completed application; (2) pay a nonrefundable fee; and (3) deposit the required number of copies of the works to be registered. The international minimum standard for copyright protection under the Berne Convention and the TRIPS Agreement is the life of the author plus 50 years. However, the United States, the European Union, and other countries have opted to extend this period. Under U.S. law, for works created by individual authors on or after January 1, 1978, copyright protection begins as soon as the work is created and lasts for the life of the author plus 70 years.
For anonymous works, pseudonymous works (if the author’s name is not revealed), and works made for hire, copyright lasts for 95 years from the date of first publication, or 120 years from the date of creation, whichever expires first. The copyright for joint works lasts for the life of the last surviving author plus 70 years. There is no such thing as an "international copyright" that automatically protects an author’s works worldwide. Copyright protection is territorial, meaning it depends on the laws of each country where protection is sought.
However, most countries are members of the Berne Convention and TRIPS Agreement, which offer important protections for foreign authors. Under these agreements, a member country must provide the nationals of other member states with no less favorable protection than it provides to its own nationals. This principle is known as "national treatment."