NATIONAL INFORMATION INFRASTRUCTURE

2. SUBJECT MATTER AND SCOPE OF PROTECTION

a. ELIGIBILITY FOR PROTECTION

The subject matter eligible for protection under the Copyright Act is set forth in Section 102(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.[1]

From this provision, the courts have derived three basic requirements for copyright protection -- originality, creativity and fixation.[2]

The requirements of originality and creativity are derived from the statutory qualification that copyright protection extends only to "original works of authorship."[3] To be original, a work merely must be one of independent creation -- i.e., not copied from another. There is no requirement that the work be novel (as in patent law), unique or ingenious. To be creative, there must only be a modicum of creativity. The level required is exceedingly low; "even a slight amount will suffice."[4]

The final requirement for copyright protection is fixation in a tangible medium of expression. Protection attaches automatically to an eligible work of authorship the moment the work is sufficiently fixed.5 A work is fixed "when its embodiment in a copy or phonorecord . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."6

Congress provided considerable room for technological advances in the area of fixation by noting that the method of fixation in copies or phonorecords may be "now known or later developed."[7] The Copyright Act divides the possible media for fixation into "copies" and "phonorecords":

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.[8]

 

"Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.[9]

According to the House Report accompanying the Copyright Act of 1976, Congress intended the terms "copies" and "phonorecords" to "comprise all of the material objects in which copyrightable works are capable of being fixed."[10]

The form of the fixation and the manner, method or medium used are virtually unlimited. A work may be fixed in "words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia"; may be embodied in a physical object in "written, printed, photographic, sculptural, punched, magnetic, or any other stable form"; and may be capable of perception either "directly or by means of any machine or device 'now known or later developed.'"[11]

In digital form, a work is generally recorded (fixed) as a sequence of binary digits (zeros and ones) using media specific encoding. This fits within the House Report's list of permissible manners of fixation.12 Virtually all works also will be fixed in acceptable material objects -- i.e., copies or phonorecords. For instance, floppy disks, compact discs (CDs), CD-ROMs, optical disks, compact discs-interactive (CD-Is), digital tape, and other digital storage devices are all stable forms in which works may be fixed and from which works may be perceived, reproduced or communicated by means of a machine or device.[13]

The question of whether interactive works are fixed (given the user's ability to constantly alter the sequence of the "action") has been resolved by the courts in the context of video games and should not present a new issue in the context of the NII. Such works are generally considered sufficiently fixed to qualify for protection.[14] The sufficiency of the fixation of works transmitted via the NII, however, where no copy or phonorecord has been made prior to the transmission, may not be so clear.

A transmission, in and of itself, is not a fixation. While a transmission may result in a fixation, a work is not fixed by virtue of the transmission alone. Therefore, "live" transmissions via the NII will not meet the fixation requirement, and will be unprotected by the Copyright Act, unless the work is being fixed at the same time as it is being transmitted.[15] The Copyright Act provides that a work "consisting of sounds, images, or both, that are being transmitted" meets the fixation requirement "if a fixation of the work is being made simultaneously with its transmission."16 To obtain protection for a work under this "simultaneous fixation" provision, the simultaneous fixation of the transmitted work must itself qualify as a sufficient fixation.

A simultaneous fixation (or any other fixation) meets the requirements if its embodiment in a copy or phonorecord is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."[17] Works are not sufficiently fixed if they are "purely evanescent or transient" in nature, "such as those projected briefly on a screen, shown electronically on a television or cathode ray tube, or captured momentarily in the 'memory' of a computer."[18] Electronic network transmissions from one computer to another, such as e-mail, may only reside on each computer in RAM (random access memory), but that has been found to be sufficient fixation.[19]

b. PUBLISHED AND UNPUBLISHED WORKS

Historically, the concept of publication has been a major underpinning of copyright law. Under the dual system of protection which existed until the 1976 Copyright Act took effect, unpublished works were generally protected under state law. Published works, on the other hand, were protected under Federal copyright law.[20] On the effective date of the 1976 Act, Federal copyright protection became available for unpublished as well as published works.[21] The concept of publication thus lost its "all-embracing importance" as the threshold to Federal statutory protection.[22]

However, while the importance of publication has been reduced through amendment to the law (e.g., granting Federal protection to unpublished works and removing the notice requirement for published works), the status of a work as either published or unpublished still has significance under the Copyright Act. For example:

The Copyright Act provides a definition of "publication" to draw the line between published and unpublished works:

"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.[29]

The definition uses the language of Section 106 describing the exclusive right of distribution, and was intended to make clear that "any form of dissemination in which a material object does not change hands -- performances or displays on television, for example -- is not a publication no matter how many people are exposed to the work."[30] It also makes clear that the distribution must be "to the public."[31] In general, the definition continues principles that had evolved through case law under previous copyright laws,[32] including the doctrine of limited publication.[33] The doctrine was developed by courts to save works from losing copyright protection when copies of the work were only distributed to a restricted number of people and for a restricted purpose without a copyright notice.[34] Those works would not be considered distributed to the public (i.e., published) and, therefore, not subject to the notice requirement. Although the notice requirement has been eliminated, and thus the most critical justification for the doctrine, the few cases dealing with publication since 1989 suggest that courts will continue to apply the doctrine of limited publication.[35]

c. WORKS NOT PROTECTED

Certain works and subject matter are expressly excluded from protection under the Copyright Act, regardless of their originality, creativity and fixation. Titles, names, short phrases, and slogans generally do not enjoy copyright protection under the Copyright Act.[36] Other material ineligible for copyright protection includes the utilitarian elements of industrial designs;[37] familiar symbols or designs; simple geometrical shapes; mere variations of typographic ornamentation, lettering or coloring; and common works considered public property, such as standard calendars, height and weight charts, and tape measures and rulers.

Copyright protection also does not 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 even if it meets the criteria for protection.[38] Thus, although a magazine article on how to tune a car engine is protected by copyright, that protection extends only to the expression of the ideas, facts and procedures in the article, not the ideas, facts and procedures themselves, no matter how creative or original they may be. Anyone may "use" the ideas, facts and procedures in the article to tune an engine -- or to write another article on the same subject. What may not be taken is the expression used by the original author to describe or explain those ideas, facts and procedures.[39]

Copyright does not prevent subsequent users from copying from a prior author's work those constituent elements that are not original -- for example . . . facts or materials in the public domain -- as long as such use does not unfairly appropriate the author's original contributions.[40]

This idea/expression dichotomy "assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work."[41] Although it "may seem unfair that much of the fruit of the [author's] labor may be used by others without compensation," it is "a constitutional requirement" -- the "means by which copyright advances the progress of science and art."[42]

As a matter of law, copyright protection generally is not extended under the Copyright Act to works of the U.S. Government.[43] Therefore, nearly all works of the U.S. Government -- including this Report -- may be reproduced, distributed, adapted, publicly performed and publicly displayed without infringement liability in the United States under its copyright laws.[44] While the Copyright Act leaves most works created by the U.S. Government unprotected under U.S. copyright laws, Congress did not intend for the section to have any effect on the protection of U.S. government works abroad.[45]

d. CATEGORIES OF PROTECTIBLE WORKS

The Copyright Act enumerates eight broad categories of protectible subject matter:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.[46]

LITERARY WORKS

Although many categories of works will be available via the NII, the majority of works currently available on computer networks such as the Internet are literary works.

"Literary works" are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, films, tapes, disks, or cards, in which they are embodied.[47]

Literary works include computer programs,[48] articles, novels, directories, computer databases, essays, catalogs, poetry, dictionaries, encyclopedias, and other reference materials.[49

MUSICAL WORKS

A musical work consists of the musical notes and lyrics (if any) in a musical composition.[50] A musical work may be fixed in any form, such as a piece of sheet music or a compact disc.[51] Musical works may be "dramatic," i.e., written as a part of a musical or other dramatic work, or "nondramatic," i.e., an individual, free-standing composition.

DRAMATIC WORKS

Generally, a dramatic work is one in which a series of events is presented to the audience by characters through dialogue and action as the events happen, such as in a play.[52]

PANTOMIMES AND CHOREOGRAPHIC WORKS

This category was first added to the list of protectible subject matter in 1976.[53] While pantomimes and choreographic works, such as dances, can be fixed in a series of drawings or notations, they are usually fixed on film or videotape.

PICTORIAL, GRAPHIC AND SCULPTURAL WORKS

A significant number of works traveling through the NII will be pictorial and graphic works. Works in this category include:

[T]wo-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.[54]

A work of art which is incorporated into the design of a useful article, but which can stand by itself as art work separate from the useful article, is copyrightable, but the design of the useful article is not.[55]

MOTION PICTURES AND OTHER AUDIOVISUAL WORKS

The Copyright Act provides definitions of "audiovisual works" and the subcategory "motion pictures":

"Audiovisual works" are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.[56]

"Motion pictures" are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.[57]

The House Report notes that the key to the subcategory "motion pictures" is the conveyance of the impression of motion, and that such an impression is not required to qualify as an audiovisual work.[58]

SOUND RECORDINGS

A "sound recording" is the work that results from the fixation of sounds, including those that are musical or spoken.[59] When those sounds are included in an audiovisual work, such as a music video, they are considered part of the audiovisual work rather than a sound recording.[60]

ARCHITECTURAL WORKS

An "architectural work" is "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings."[61] It includes the overall form as well as the "arrangement and composition of spaces and elements" in the design of the building.[62]

COMPILATIONS AND DERIVATIVE WORKS

A compilation is "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship."[63] Directories, databases, magazines and anthologies are types of compilations.

A derivative work is a work "based upon" one or more preexisting works.[64] A derivative work is created when one or more preexisting works is "recast, transformed, or adapted" into a new work, such as when a novel is used as the basis of a movie or when a drawing is transformed into a sculpture.[65] Translations, musical arrangements and abridgments are types of derivative works.

The Copyright Act makes clear that the subject matter of copyright specified in Section 102 (literary works, musical works, sound recordings, etc.) includes compilations and derivative works.[66] The copyright in a derivative work or compilation, however, extends only to the contribution of the author of the derivative work or compilation (the compiler), and does not affect the copyright protection granted to the preexisting material.[67] Protection for an individual musical work, for instance, is not reduced, enlarged, shortened or extended if the work is included in a collection, such as a medley of songs.

Moreover, copyright in a compilation or derivative work does not imply any exclusive right in the preexisting material employed in the compilation or derivative work.[68] The copyright in a compilation, for example, is limited to the original selection or arrangement of the facts or other elements compiled; protection for the compilation in no way extends to the facts or elements.[69] Copyright protection is not granted simply for the hard work that may be involved in compiling facts. The Supreme Court struck down the doctrine that had protected such efforts, known as the "sweat of the brow" or "industrial collection" theory.[70]

"MULTIMEDIA" WORKS

Increasingly, works from different categories are fixed in a single tangible medium of expression.[71] This will certainly be true as development of the NII progresses and the ability to create and disseminate interactive "multimedia" or "mixed media" products increases.

A prefatory note may be warranted because of the manner in which these terms are used in the context of copyright law. The terms "multimedia" and "mixed media" are, in fact, misnomers. In these works, it is the types or categories of works that are "multiple" or "mixed" -- not the types of media. The very premise of a so-called "multimedia" work is that it combines several different elements or types of works (e.g., text (literary works), sound (sound recordings), still images (pictorial works), and moving images (audiovisual works)) into a single medium (e.g., a CD-ROM) -- not multiple media.[72] However, in recognition of the prevalent use of the term, this Report refers to this type of work as a "multimedia" work.

Multimedia works are not categorized separately under the Copyright Act; nor are they explicitly included in any of the eight enumerated categories. While most current multimedia works would be considered compilations,[73] that classification does not resolve the issue of subject matter categorization.[74]

Despite the fact that the Copyright Act enumerates eight categories of works, works that do not fit into any of the categories may, nevertheless, be protected. The list of protectible works in Section 102 is intended to be illustrative rather than inclusive.[75] The House Report explains that the categories of works "do not necessarily exhaust the scope of 'original works of authorship' that the [Copyright Act] is intended to protect."[76] However, absent the addition of a new category, a work that does not fit into one of the enumerated categories is, in a sense, in a copyright no-man's land.[77]

Under the current law, the categorization of a work holds a great deal of significance under the Copyright Act. For instance, two of the exclusive rights granted in Section 106 apply only to certain categories of works.[78] In addition, many of the limitations on rights in Sections 108 through 120 are not applicable to all types of works.[79] Therefore, categorization of multimedia and other new types of works is an important issue.

Generally, multimedia works include two or more of the following preexisting elements: text (literary works), computer programs (literary works), music (musical works and sound recordings), still images (pictorial and graphic works) and moving images (audiovisual works). The definition of "literary works" begins with the phrase "works, other than audiovisual works . . . ."[80] Therefore, a reasonable interpretation may be that text and computer programs that would otherwise be categorized as literary works may be considered part of an audiovisual work if included in a work of that type. Such is also the case with sound recordings. A music video is not categorized as both a sound recording and an audiovisual work; it is categorized as an audiovisual work.[81] Audiovisual works also include still images -- at least related ones.[82] Therefore, in many instances, a multimedia work may be considered -- as a whole -- an audiovisual work. The legislative history makes clear that a work in one category may contain works in other categories.[83]

The somewhat strained analysis needed to find a category for multimedia works and the increasing "cross-breeding" of types of works demonstrate that categorization may no longer be useful or necessary. While the Working Group does not recommend at this time the consolidation or elimination of categories (and harmonization of the differing application of rights and limitations on those rights), it is likely that such consolidation or elimination will be appropriate in the future.

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