(Presented at the NYC Bar Association on April 10, 2012; revised Jan-Mar 2013.)
Copyright may be the closest that American law gets to Chaos as scientists started using the term at the end of the last century: a system with so many variables constantly in play that, by definition, its development and at times even its basic character and shape are unpredictable and often not rational in the way that we expect a legal regime of its vintage to be. Certainly, there has never been any serious controversy as to whether copyright is necessary or intrinsically a "good thing." And what copyright is is simple enough - the word itself says it: the right to make copies of something inherently reproducible by virtue of one’s ownership interest in it. How any of those simple concepts actually work is where copyright immediately passes from the linear to the fractal. And the latter, in short, is what we mean by the “nature and scope” of copyright.
The power of the federal government to protect copyright (as well as patents) is established in Article I, Section 8, Clause 8 of the Constitution, which reads in its relevant entirety:
The Congress shall have power . . . [t]o 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 sparked no debate to speak of at the Constitutional Convention, and it gets barely a mention in The Federalist Papers. Britain’s Statute of Anne had already been protecting the rights of English authors to control the reproduction of their works since 1710. Accordingly, the enactment of the first American copyright law, the Act of 1790, preceded the ratification of the Bill of Rights by one year.
In the Act of 1790, the terms “author” and “writings” covered the subject matter of copyright more or less literally. “Authors” meant the literal writers of written and published “writings,” although the Act specifically excluded newspapers while including maps and charts. After 1803, “authors” also meant printmakers, etchers and engravers. After 1831, “authors” also meant authors of written musical compositions. The term “authors” now also includes, among others, authors of recorded musical compositions, architects, choreographers, painters, sculptors, filmmakers and writers of computer software programming.
Only in copyright law are all of these artists called “authors.” And only in copyright law are dances, films and sculptures called “writings.” The reason for these elastic definitions is part of the special genius of American constitutional law. All of American copyright law – absolutely all of it – is encompassed in Article I, Section 8, clause 8. Congress is afforded the power to secure to “authors” the “exclusive right” to their “writings,” for “limited times.” Those are the words and, to this day, everything copyright does has to fit within those words – literally.
This flexible definition of “writings” was embodied in statute before it was challenged in court, but challenged it has been – most notably in a Supreme Court decision from 1884 called Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). Napoleon Sarony was a well-known photographer of the time who had taken a well-known photograph of Oscar Wilde. The Burrow-Giles Company made a lithograph lifted directly from this photograph. There was no issue whatsoever as to whether the lithograph was a copy of the Sarony photograph, because it clearly was. Also, the Copyright Act of 1870 had extended copyright protection to photographs. So, what was the issue? The issue before the Court was whether the 1870 statute’s categorization of photographs as “writings” was constitutional under the copyright clause. Was photography by definition protectable – as a “writing” – under the copyright laws and within the copyright clause? The Court found this expansive application of the word “writing” to be wholly constitutional:
By writings in that clause is meant the literary productions of those authors, and congress very properly has declared these to include all forms of writing, printing, engravings, etchings, &c., by which the ideas in the mind of the author are given visible expression. … … We entertain no doubt that the constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author.1
The specific phrasing here is key. “Writings” is roughly defined as the ways in which “the ideas in the mind of the author are given visible expression.” And that formulation raises a couple of key questions. First, if an author’s ideas given visible expression are protectable under copyright, does that mean the author’s ideas themselves are protectable? The answer is no, and this may be the hardest fundamental concept to explain to someone dealing with copyright law for the first time: Copyright Does Not Protect Ideas. It can only protect an idea when it takes the form that the law recognizes as tangible property: the expression of that idea in a work of some kind. But precisely where the expression of an idea crosses the line into an expression protectable by copyright is often difficult to explain and often obscure.
In another formative case, Baker v. Selden, 101 U.S. 99 (1879), the author of a book on accounting that he had copyrighted, sued when another author used a similar accounting system in his own book, using similar graphics. In this case, the Court found that these bookkeeping graphics, notwithstanding that they were visible manifestations of the plaintiff’s original ideas about accounting, did not rise to the level of protectable expression. The book and graphics might convey the author’s ideas about accounting, but those ideas themselves were not protectable. As the Court stated:
The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters-patent.2
This formulation has long been codified in the operative statute. Section 102(a) of Title 17, regarding the “Subject Matter of Copyright,” states, in relevant part:
(a) Copyright protection subsists . . . in 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. . . .
Further sub-section (b) states, à la Baker v. Selden:
(b) In no case does copyright protection for an original work of authorship extend to 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.
You may note here that the current version of subsection (a) says “tangible medium of expression,” rather than “visible expression” as the Supreme Court phrased it in the Burrow-Giles case 130 odd years ago. This raises the second question implicit in that case’s holding: How could an 18th Century formulation of copyright law be made to extend to 21st Century formulations of expression?
One key development was actually a relatively backward-looking Supreme Court case, White-Smith Music Publishing Co. v Apollo Co., 209 U.S. 1 (1908), which involved player piano rolls. Player piano was a largely archaic technology even in 1908. Phonographs had been around for quite some time, although sound recordings proper were not protected under the copyright statutes until 1971. As mentioned previously, written musical composition had been protected since 1931. A musical score was clearly understood as a visual expression under the law, even though you obviously had to be able to read music for it to be intelligible. Player piano rolls were different, however. It was a long scroll with holes punched in it. You would mount it onto a mechanized pneumatic piano that blew streams of air through a row of 88 tiny holes. The punched paper would run from spool to spool with the sheet pressed against the holes. When a hole punched in the sheet crossed one of the pneumatic valves, the air would escape through the hole causing a corresponding piano key to strike. A sequence of punched holes in a line would make a chord, and so on. And it would sound like a disembodied pianist playing whatever song you bought the roll for.
The issue for the Court in the White-Smith case was whether music punched onto a player piano roll was sufficiently fixed expression such that it constituted an infringing copy of the original copyrighted musical composition. In this case, the Court said no. Even though you could easily hear a theoretically unauthorized “performance” of a song by slapping the roll for that song into the player piano and switching on the mechanism, the specific means of transmitting the work – the punched roll – was not “generally intelligible” in itself. No one could be expected to “read” the holes in the paper roll. Oliver Wendell Holmes dissented, expressing what would seem to us a more intuitive view:
[O]ne would expect that, if it was to be protected at all, that collocation would be protected according to what was its essence. One would expect the protection to be coextensive not only with the invention, which, though free to all, only one had the ability to achieve, but with the possibility of reproducing the result which gives to the invention its meaning and worth. A musical composition is a rational collocation of sounds apart from concepts, reduced to a tangible expression from which the collocation can be reproduced either with or without continuous human intervention. On principle anything that mechanically reproduces that collocation of sounds ought to be held a copy … .3
Ultimately, this was something that had to be corrected in the wording of the statute, as with the language in section 102(a) referencing “the aid of a machine or device.” The most obvious current applications of which are video (film is visually intelligible, while magnetic inscription on tape or disc is not) and, most importantly, computer software. The fact that software is today the province of copyright rather than patent – at least, for the present – would appear to turn Baker v. Selden on its head. The extent that it does not is attributable to case law requiring that the protectable content in computer programs be subject to a number of tests.
Most emblematic is the Second Circuit’s holding in Computer Assocs. Int’l Inc. v. Altai, 982 F.2d 693 (2d Cir. 1992). In order to determine what aspects of source code are protectable, the Court required a three-step process:
Ostensibly, if you take out the functional aspects of the programming, you will leave something from which some kind of “expression” can be discerned.
So what about “functional” aspects? Can you copyright something that has a useful function? The answer is yes, to the extent that there are aspects of that something that are not functional and also protectable expression. In Mazer v. Stein, 347 U.S. 201 (1954), for example, the issue was whether the sculptural bases in table lamps were protectable. The answer was yes – and the pictures of the objects make it reasonably clear that one could take out the lamp portion of these pieces, leaving the sculptural elements intact. But what if the heads of the dancing figures themselves had lit up? That would be a closer call, but still easy to make – there’s nothing directly related to the function of a light in having it shaped like someone’s head. But under section 101, if a “pictorial, graphic, and sculptural work” has any intrinsic function, it has to meet the “separability” test whereby you can either physically separate the expressive features from the utilitarian aspects – as in the lamps in Mazer v. Stein – or conceptually separate them (as in lit-up heads).
Predictably, there are any number of other cases in which the distinction between what is copyrightable has and what is not has been similarly delineated – at least tentatively – but the handful I’ve discussed convey the flavor of the law’s development, and the ways in which it has resolved itself within the language of the Copyright Clause. But the real whammy in that clause is its built-in dialectic:
“The Congress shall have power . . . [t]o 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[.]”
If the objective is to “promote the progress of . . .useful arts,” the question is not protecting a right deemed to be preexisting and inalienable but actually creating one. The “exclusive right” references just how much protection is necessary to encourage the production and circulation of original works. If you write a novel and never show it to anybody, copyright is irrelevant to that work. If someone steals the manuscript and hides it from you, they have robbed you of your property, and that is a crime, but copyright is still irrelevant – unless they try to exploit the work by publishing it – making it public. Then they have robbed you and infringed your work. You have the exclusive right to make your own work public, or to authorize that being done. But “limited times” says that, by definition, there has to be a limit to that exclusive right – it’s not so exclusive, let alone inalienable, if it self-destructs. Where and when that happens – and why – is always in flux.
That, in short, is the nature and scope of copyright: a system as inherently chaotic – in its basic structure – as the law provides.
1 111 U.S. at 58.
2 101 U.S. at 105.
3 209 U.S. at 19-20.
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