Copyright Law in the Digital Age

By Thomas Shirley1 and Robrert J. Schneider2

Copyright law in the United States is governed exclusively by the Federal Laws of the United States, namely the Copyright Act of 1976, as amended. The Copyright Act prevents certain unauthorized uses of of the expression of a protected work of authorship. These unauthorized uses may include copying, reproduction, importation, display, performance or sale of the work as described below. However, only the impermissible use of the expression of work itself is prohibited--anyone is free to use or copy the ideas contained within a work. Copyrights can be registered in the U. S. Copyright Office in the Library of Congress, but newly created works do not have to be registered to be protected. It is no longer even necessary to put a copyright notice on a work for it to be protected by copyright law. However, the Copyright Act does provide additional benefits to those who register their copyrights in the Copyright Office. Consequently, copyright registration and the use of a copyright notice is recommended.

During the last four years, the Internet has become one of the basic tools for the exchange of information. Now growing at a rate that staggers the imagination, the Internet has moved from a quiet means of communication among academic and scientific research circles into the commercial arena and private homes. The field of electronic commerce, or E-Business, as IBM calls it, is moving very rapidly. Traffic on the Internet is doubling every 100 days and business use is growing the fastest. According to the Commerce Department, 10 million Americans had made purchases on the world-wide web by the end of 1997, which is an increase from only 7.4 million six months earlier. It is estimated that commercial purchases, such as wholesale purchase of supplies could reach 300 billion dollars by the year 2002, thereby saving the largest corporate users hundreds of millions of dollars by lowering their costs and reducing their inventories. Recent reports indicate that:

1. The Internet is growing faster than all other technologies that have preceded it. Radio existed for 38 years before it had 50 million listeners, and television took 13 years to reach that mark. The Internet crossed the line in a mere 4 years.

2. In 1994, 3 million people were connected to the Internet, and this has exploded to over 100 million users today.

3. Workers in the information technology industry (IT) earn an average of almost $46,000 annually, compared with an average of only $28,000 in other industries. Workers in the software and service industries are the highest average wage earners at about $56,000 per year.

All of this leads to the conclusion that information technology is driving the U.S. economy and its influence is increasing at a much faster rate than previously estimated. The Internet has become an international system through which large
amounts of intellectual property are being transferred. As the Internet is being used in the mainstream of commerce to sell and deliver creative content and information across international borders, issues of intellectual property protection for the
material available on and through the Internet are rising in importance.

Copyright law will provide one of the most important forms of intellectual property protection on the Internet for many reasons. First, much of the material that will move in commerce on the Internet will be works of authorship, such as musical works, multimedia works, audiovisual works, movies, software, database information and the like, which are within the usual subject matter of copyright. Second, there is basically no regulatory agency to monitor this transfer of data. Third, because the very nature of an electronic online medium requires that data be "copied" at various stages as it is transmitted across the network, intellectual property rights and copyright rights, in particular, obviously need protection.


1. Obtaining Copyright Protection for a Work

Under the current U.S. Copyright Act, copyright protection exists in
"original works of authorship fixed in a tangible medium of expression." The
ease in which copyright rights are secured under this definition has led to
copyrights becoming the most widely available form of intellectual property
protection.

Originality Requirement: For a work to be protected by copyright law, it
must be "original." However, the amount of originality required is extremely
small. The work cannot be a mere mechanical reproduction of a previous work,
nor can the work consists of only a few words or a short phrase. In
addition, if the work is a compilation, the compilation must involve some
originality beyond mere alphabetic sorting of all available works (see the
discussion on compilations below for more information). Beyond that, almost
any work that is created by an author will meet the originality requirement.


Works of Authorship: The Copyright Act uses the phrase "works of authorship"
to describe the types of works that are protected by copyright law. This
purposefully broad phrase was chosen by Congress to avoid the need to
rewrite the Copyright Act every time a new "medium" was discovered. This
intended ambiguity allows the Copyright Act to protect World Wide Web pages
and multimedia CD roms even though these items did not exist at the time the
Copyright Act was written. In order to clarify what was considered a work of
authorship, Congress included a list of eight works of authorship in the Act
itself:

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.

Although this list is not meant to be all-inclusive, most protected works
fall into one of the specified categories. These categories are broader than
they initially appear to be. For example, computer programs and most
compilations are registered as "literary works," while maps and
architectural plans are registered as "pictorial, graphic, and sculptural
works."

Fixation: In order for a work to be protectable, it must be fixed in a
tangible medium of expression. A work is considered fixed when it is stored
on some medium in which it can be perceived, reproduced, or otherwise
communicated. For example, a song is considered fixed when it is written
down on paper. The paper is the medium on which the song can be perceived,
reproduced and communicated. It is not necessary that the medium be such
that a human can perceive the work, as long as the work can be perceived by
a machine. Thus, the song is also fixed the moment the author records it
onto a cassette tape. Similarly, a computer program is fixed when stored on
a computer hard drive. In fact, courts have even held that a computer
program is fixed when it exists in the RAM of a computer. This is true even
though this "fixation" is temporary, and will disappear once power is
removed from the computer.

Automatic Creation: The above three requirements are the only requirements
for copyright protection. As a result, copyright protection exists the
moment an original work of authorship becomes fixed. For example, the song
in the previous example is protected by copyright at the moment it is
written to paper, or recorded on a cassette tape. A computer program is
protected the exact moment that it is saved to disk.

No other actions are required for copyright protection. There is no need to
file an application for copyright protection, or to even place a copyright
notice on a work. These additional steps, often referred to as
"formalities," were previously required to secure copyright protection.
Under the current law, the formalities of registration and notice now merely
serve as recommended steps to expand the protection provided by copyright.

This automatic creation of copyright protection in the United States began
in 1978. Before 1978, statutory copyright was generally secured by the act
of publishing a work with a notice of copyright on the work. If a work
remained unpublished, statutory copyright could be secured by the act of
registration. If a work was published without a copyright notice, the work
could enter the public domain and would not have copyright protection. Any
work that was in the public domain on January 1, 1978 remained in the public
domain.

Compilation Copyrights: Compilation copyrights are a special breed of
copyrightable work. They are defined by the Copyright Act as a work that is
formed by the "collection and assembling of preexisting materials or of data
that are selected in such a way that the resulting work as a whole
constitutes an original work of authorship." An example of a compilation
would be a collection of the most influential plays of the Eighteenth
Century. The individual plays themselves would not be subject to copyright
protection, since the copyright would have expired. However, the selection
of the plays (as well as their order) involves enough original, creative
expression to be protected by copyright. Therefore, the grouping of plays is
protected by the copyright in the compilation even though each individual
play is not protected.

The white pages telephone directory is an example of an unprotected grouping
of facts. The individual facts (name, address, and telephone number) are not
protectable under the copyright law. In addition, the compilation in this
case consisted solely of gathering all available telephone numbers in a
particular area and sorting them alphabetically. The U.S. Supreme Court has
held that this minimal level of selecting and arrangement does not involve
enough originality to be protected by copyright.

Traditional copyright law was designed to deal primarily with the creation, distribution and sale of protected works in tangible copies. In the prior world of tangible distribution, it is generally easy to know when a "copy" has been made. The nature of the Internet, however, is such that it is often difficult to know precisely whether a "copy" of a work has been made and, if so, where it resides at any given time within the network. As described further below, information is sent through the Internet using a technology known as "packet switching," in which data is broken up into smaller units, or "packets," and the packets are sent as discrete units. As these packets pass through the random access memory (RAM) of each interim computer node on the network, are "copies" of the work being made?

The ubiquitous nature of "copying" in the course of physical transmission gives the copyright owner potentially very strong rights with respect to the movement of copyrighted material through the Internet, and has moved copyright to the center of attention as a form of intellectual property on the Internet. If the law categorizes all interim and received transmissions as "copies" for copyright law purposes, or treats all such transmissions as falling within the right of distribution of the copyright owner, then activities that have been permissible with respect to traditional tangible copies of works, such as browsing and transfer, may now fall within the control of the copyright holder.

On the Internet information is transmitted through the Internet using a technique where packets of information are created, transferred and then reassembled to complete the transfer of a file. As an example of the number of interim "copies," that may be made when transmitting a work through the Internet, consider the example of downloading an Adobe Photoshop file from a Web site. During the course of such transmission, at least six interim copies of the file may be made. The modems at each end will generally “buffer” each byte of data, as will the router, the receiving computer itself, the Web browser, and the video display board. These copies are in addition to the one that may be stored on the recipient's hard disk. Do these temporarily stored packets qualify as "copies"?

Do the interim and final copies of a work being transmitted through the Internet qualify as “copies" within the meaning of United States copyright law? The copyright statute defines "copies" as: “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.”

The language of the definition raises two issues concerning whether images of transmitted data in qualify as "copies." First, depending upon where the data is in transit through the Internet, only a few packets of the data may reside in storage at a given time. For example, the modem at the receiving and transmitting computers may buffer only one or a few bytes of data at a time. A node computer may receive only a few packets of the total data, the other packets being passed through a different route and therefore a different node computer's RAM. Should the law consider these partial images a "copy" of the work? Should the outcome turn on whether all or most of the packets of data comprising the work pass through a given RAM, or only a portion? How can partial images of data stored in RAM be deemed a "copy" of a work, in the case where there is no point in time at which the entire work is available? No case to date has addressed these specific issues.

The White Paper published by the Working Group on Intellectual Property Rights of President Clinton's Information Infrastructure Task Force implicitly suggests that at least interim, partial copies of a work created in RAM in interim node computers during transmission do not themselves constitute a "fixed" copy:

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. 9

The second general issue raised by the definition of "copies" is whether images of data stored in RAM are sufficiently "permanent” to be deemed "copies" for copyright purposes. The definition of "copies" speaks of "material objects," suggesting an enduring, tangible embodying medium for a work. With respect to an image of data stored in RAM, is the RAM itself to be considered the "material object"? The image of the data in RAM disappears when the computer is turned off. In addition, most RAM is "dynamic"(DRAM), meaning that even while the computer is on, the data must be continually refreshed in order to remain readable. So the data is in every sense "fleeting." Is its embodiment in RAM sufficiently permanent to be deemed a "copy"?

The legislative history of the Copyright Act of 1976 would suggest that data stored in RAM is not a "copy." As noted above, a "copy” is defined as a material object in which a work is "fixed." The statute defines a work to be "fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." This suggests that images of data temporarily stored in RAM do not constitute "copies."

Several cases, however, appear to have held to the contrary. Therefore it should be considered an open issue whether the cases apply to images of works stored in RAM for more transitory periods, such as in a node computer' during a transmission through the Internet. Other court opinions suggests that only copies that exist for several minutes should constitute a "copy” within the purview of copyright law.





2. Works Not protected by Copyright Law


Some types of material are ineligible for copyright protection. Generally,
these materials are either protected by some other intellectual property, or
have been considered inappropriate for protection.

Works that have not been fixed in a tangible form of expression are not
protected under the Copyright Act, since fixation is one of the
prerequisites for copyright protection. For example:
choreographic works that have not been notated or recorded, or
improvisational speeches or performances that have not been written or
recorded are both ineligible for copyright protection. For many years,
unrecorded music concerts were also unprotected by copyright law because
they were not fixed. This caused problems when bootleg tapes of rock
concerts would appear, since there was no cause of action under the
Copyright Act (there was often protection under certain state statutes and
common law, however). This meant that the availability of copyright
infringement actions against bootleggers depended on whether the performers
bothered to record the concert.

In December, 1994, Congress changed the law of unrecorded music performances
when it passed The Uruguay Round Agreements Act. This act included a new
provision, which prohibited the recording of live musical performances (that
is, bootleg copies) even when there was no other "fixation" of the work.
This provision includes separate prohibitions against the distribution and
transmission of bootleg copies. In fact, the prohibition against
transmission does not even require that a physical copy of the performance
ever be made. While this act appears to create an exception to the fixation
requirement for copyright, it is probably best understood as an independent
right that is similar to copyright, but is not copyright.

Titles, names, short phrases, and slogans are not protected by copyright
law. Similarly, it is clear that copyright law does not protect simple
product lettering or coloring, or the mere listing of product ingredients or
contents. The exclusion of these types of materials is not an exception to
copyright law, but merely an application of the requirements for copyright
protection. To be protected by copyright, a work must contain at least a
minimum amount of authorship in the form of original expression. Names,
titles, and other short phrases are simply too minimal to meet these
requirements. This is why you will often see books and movies sharing the
same title.

Of course, brand names, slogans and phrases which are used in connection
with a product or service may be protectable under trademark law. In fact, a
series of books all under the same title may even create trademark protection
for that title.

Ideas, procedures, principles, discoveries, and devices are all specifically
excluded from copyright protection. As stated in the Copyright Act:

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.

This specific exclusion helps maintain the distinction between copyright
protection and patent law. Ideas and inventions are the subject matter for
patents, while the expression of ideas is governed by copyright law. If
copyright were extended to protect ideas, principles and devices, then it
would be possible to circumvent the rigorous prerequisites of patent law and
secure protection for an invention merely by describing the invention in a
copyrightable work.

An example is the best way to explain this idea/expression distinction.
Suppose that an inventor discovers a process for cold fusion--an invention
that would revolutionize society as we know it. If the inventor were to
write down on paper a description of the process, that description would be
protected against copyright infringement from the moment the work is fixed.
If she were to publish her paper, no one would be able to make additional
copies of the paper without her permission. However, anyone reading her
paper could implement her process without fear of copyright infringement,
since the process itself--the idea--is not protected under copyright law. In
fact, it would even be allowable for someone to write a competing paper
describing her invention, as long as the competing paper described the
invention in its own words and did not take any "expression" from the
original paper. However, only the inventor could apply for patent protection
for her process. After applying for the patent, and going through a rigorous
examination of the patentability of her patent, the U.S. Patent and
Trademark Office might grant her a patent. At that point, she could prevent
all others from using her idea.

One consequence of the idea/expression dichotomy is that there is no
copyright protection in basic facts. A fact, such as George Washington's
birthday or the Pope's address and phone number, is considered synonymous
with an idea. It makes no difference how much effort went into discovering a
particular fact. Even if it took two years of research to discover a fact,
the fact is still not protectable under copyright laws. It is possible that
a compilation of facts is protectable as a compilation, as long as the
compilation required a minimum degree of originality .

A second, less expected result of the idea/expression dichotomy is the
inability to obtain copyright protection for blank forms. Although graphical
or literary elements that might be found on a form (such as a photograph or
a detailed explanation of a term) would be subject to copyright protection,
there is no copyright in the blank form itself. The blank form is considered
to be a type of idea, a conclusion which stems from an old Supreme Court
decision.

Useful articles: Copyright protection is generally not available to articles
which have a utilitarian function. Examples of these types of "useful
articles" would include lamps, bathroom sinks, clothing, and computer
monitors. Under the Copyright Act, the only copyright protection available
to these items is for "features that can be identified separately from, and
are capable of existing independently of, the utilitarian aspects of the
article." Unfortunately, this test is inherently ambiguous when deciding the
scope of copyright protection for certain useful articles.

Some distinctions are clear. For instance, a painting on the side of a truck
is protectable under copyright law even though the truck is a useful
article. The painting is clearly separable from the utilitarian aspects of
the truck. The overall shape of the truck, on the other hand, would not be
copyrightable since the shape is an essential part of the truck's utility.
Another commonly considered example is that of clothing. The print found on
the fabric of a skirt or jacket is copyrightable, since it exists separately
from the utilitarian nature of the clothing. However, there is no copyright
in the cut of the cloth, or the design of the skirt or jacket as a whole,
since these articles are utilitarian. This is true even of fanciful
costumes; no copyright protection is granted to the costume as a whole.

One of the primary purposes for prohibiting copyright protection in useful
articles is to prevent the granting of patent-like protection through the
copyright laws. If a useful article was protected under the copyright law,
the protection against copying would be quite similar to patent protection.
Since copyrights are so much easier to obtain than patents, there would be
no way of limiting this patent-like monopoly to inventions that are truly
novel and non-obvious.

Another interesting copyright concern is the extent of copyright protection
in pictorial or sculptural works that portray a useful article. Take, for
example, a painting of a futuristic looking automobile. Copyright protection
would prevent the outright copying of the painting. In addition, copyright
law would prevent the creation of a three-dimensional model of the
automobile found in the painting. However, under the specific terms of the
Copyright Act, copyright law would not prevent General Motors from making a
working (hence utilitarian) automobile of the design found in the painting.




3. Scope of Protection Under Copyright Law


The U.S. Copyright Act grants certain exclusive rights to the owner of a
copyright in a work. These exclusive rights are different from the rights
given to a person who merely owns a copy of the work. For example, when a
person purchases a book at a bookstore, they have received a property right
in a copy of a copyrighted work (namely, the book). The book owner may then
resell the book, or even destroy it, since they own the book. However, the
book's owner did not receive any copyright rights when they purchased the
book. All copyright rights are held by the book's author until the author
specifically transfers them. Consequently, the book owner may not make any
copies of the book, since the right to copy a work is one of the exclusive
rights granted under the Copyright Act. This distinction allows a copyright
owner to sell copies of a work, or even the original work itself (such as a
sculpture), without forfeiting her rights under the Copyright Act.

The Copyright Act grants five rights to a copyright owner:

* the right to reproduce the copyrighted work;
* the right to prepare derivative works based upon the work;
* the right to distribute copies of the work to the public;
* the right to perform the copyrighted work publicly; and
* the right to display the copyrighted work publicly.

The rights are not without limit, however, as they are specifically limited
by "fair use" and several other specific limitations set forth in the
Copyright Act.

The reproduction right is perhaps the most important right granted by the
Copyright Act. Under this right, no one other than the copyright owner may
make any reproductions or copies of the work. Examples of unauthorized acts
which are prohibited under this right include photocopying a book, copying a
computer software program, using a cartoon character on a t-shirt, and
incorporating a portion of another's song into a new song.

It is not necessary that the entire original work be copied for an
infringement of the reproduction right to occur. All that is necessary is
that the copying be "substantial and material."

The right to make a derivative work overlaps somewhat with the reproduction
right. According to the Copyright Act, a derivative work is

a work based upon one or more preexisting works, such as a
translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction,
abridgment, condensation, or any other form in which a work may be
recast, transformed, or adapted.

A derivative work usually involves a type of transformation, such as the
transformation of a novel into a motion picture. In the computer industry, a
second version of a software program is generally considered a derivative
work based upon the earlier version.


The distribution right grants to the copyright holder the exclusive right to
make a work available to the public by sale, rental, lease, or lending. This
right allows the copyright holder to prevent the distribution of
unauthorized copies of a work. In addition, the right allows the copyright
holder to control the first distribution of a particular authorized copy.
However, the distribution right is limited by the "first sale doctrine",
which states that after the first sale or distribution of a copy, the
copyright holder can no longer control what happens to that copy. Thus,
after a book has been purchased at a book store (the first sale of a copy),
the copyright holder has no say over how that copy is further distributed.
Thus, the book could be rented or resold without the permission of the
copyright holder.

The public performance right allows the copyright holder to control the
public performance of certain copyrighted works. The scope of the
performance right is limited to the following types of works:

* literary works,
* musical works,
* dramatic works,
* choreographic works,
* pantomimes,
* motion pictures, and
* audio visual works.

Under the public performance right, a copyright holder is allowed to control
when the work is performed "publicly." A performance is considered "public"
when the work is performed in a "place open to the public or at a place
where a substantial number of persons outside of a normal circle of a family
and its social acquaintances are gathered." A performance is also considered
to be public if it is transmitted to multiple locations, such as through
television and radio. Thus, it would be a violation of the public
performance right in a motion picture to rent a video and to show it in a
public park or theater without obtaining a license from the copyright
holder. In contrast, the performance of the video on a home TV where friends
and family are gathered would not be considered a "public" performance and
would not be prohibited under the Copyright Act.

The public performance right is generally held to cover computer software,
since software is considered a literary work under the Copyright Act. In
addition, many software programs fall under the definition of an audio
visual work. The application of the public performance right to software has
not be fully developed, except that it is clear that a publicly available
video game is controlled by this right.

The public display right is similar to the public performance right, except
that this right controls the public "display" of a work. This right is
limited to the following types of works:

* literary works;
* musical works;
* dramatic works;
* choreographic works;
* pantomimes;
* pictorial works;
* graphical works;
* sculptural works; and
* stills (individual images) from motion pictures and other audio visual
works.

The definition of when a work is displayed "publicly" is the same as that
described above in connection with the right of public performance.



4. Fair Use in Copyright Law


Copyright and Fair Use. The exclusive rights granted by the Copyright Act
are limited by several statutory and Constitutional limitations on copyright
law. The most well known of these limitations is "fair use". However, the
Copyright statute itself sets forth over ten separate limitations on
copyright law.

The fair use statute: The doctrine of fair use developed over the years as
courts tried to balance the rights of copyright owners with society's
interest in allowing copying in certain, limited circumstances. This
doctrine has at its core a fundamental belief that not all copying should be
banned, particularly in socially important endeavors such as criticism, news
reporting, teaching, and research.

Although the doctrine of fair use was originally created by the judiciary,
it is now set forth in the Copyright Act. Under the Act, four factors are to
be considered in order to determine whether a specific action is to be
considered a "fair use." These factors are as follows:

1. the purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the
copyrighted work.


A fair use example: It can often be difficult to determine whether or not a
particular use is a "fair use". The four factors described in the statute
often lead to conflicting results. This is best seen in analyzing an example
fair use situation. The quotation of short passages from a novel in a
negative newspaper review of that novel is generally considered a fair use.
But an analysis of the four factors makes this result far from clear.

First Factor (purpose and character of the use): In analyzing the first
factor, the copying party used the quotations in a for-profit newspaper (and
therefore the use was for commercial gain). Generally, this would mean that
the first factor weighs in favor of finding no fair use. However, the fact
that the purpose of the use was to review or criticize the work is a fact
favorable to a finding of fair use. While it is not clear from examining the
statute, the later fact is probably more important than the first, meaning
that the first factor set forth in the Copyright Act should weigh toward a
finding of fair use.

Second Factor (nature of the copyrighted work): In analyzing the second
factor in our example, a novel is one of the premier examples of a work
which should be protected by copyright law. As a result, the second factor
weighs toward a finding of no fair use. If the novel had not yet been
published, this would be even more important. It can be difficult to prove
fair use in the quotation of an unpublished work. However, it is not
impossible, since the unpublished status of a work is only one element in
the fair use analysis.

Third Factor (amount and substantiality taken): As for the third factor,
only short passages from the novel were included in the review. This
generally means that the third factor is analyzed in favor of a finding of
fair use. However, the "quality" of the portion taken is analyzed under this
factor as well as the "quantity." It is possible that these short passages
are the most important part of the novel. If this were the case, this third
factor might lead to a conclusion of no fair use.

Fourth Factor (effect on potential market for protected work): Finally, the
fourth factor should be considered in our example. Courts have stated that
this is the most important factor in the fair use analysis. In this case,
the negative review would clearly impact the potential market for or value
of the copyrighted work. However, courts have stated that this factor is to
look only at the portion taken to analyze the effect on the potential
market, and not at any negative comments contained in a review. Thus, the
question is whether the inclusion of the short passages in the newspaper
would effect the market for the novel. When only short passages are
involved, courts have generally held that there is no market effect, and
this factor should be analyzed in favor of a finding of fair use.

Conclusion: The four factors are split. However, courts would generally
review this analysis and determine that, on the whole, the four factors
weigh toward a finding of fair use.


Other fair use examples: As shown by the example above, it can often be
difficult to determine whether a particular use qualifies as a fair use. It
most cases, a copyright attorney should be consulted before undertaking any
significant activity which would rely on the fair use doctrine as a defense
to copyright infringement.

Nonetheless, there are some traditional activities which have been used to
illustrate when the fair use doctrine would apply. These activities include:

* small excerpts in a review or criticism for purposes of illustration or
comment;
* a parody which incorporates some elements (but not all) of the work
being parodied;
* quotations from a speech, address, or position paper in a news report;
and
* limited copying made by a student for academic work.

In the context of computer technologies, the fair use doctrine is often used
in the context of reverse engineering. Under trade secret principles, it is
generally accepted to "reverse engineer" a product to determine how the
product works. Reverse engineering may involve analyzing circuit board
layouts, "peeling" back a integrated circuit chip, or decompiling computer
software. However, it is impossible to decompile software and then analyze
the results without making a copy (or a derivative work) of the software.
Courts have sometimes held that the making of these copies in the context of
reverse engineering is a fair use and is not copyright infringement.


First Amendment: It is unclear whether the first amendment grants an
additional privilege to make unauthorized copies of protected works beyond
that granted by the doctrine of fair use. While commentators have argued
that a separate defense against an allegation of copyright infringement does
exist, courts have not agreed. Instead, courts have stated that the
combination of the fair use doctrine (described above) and the fact that
copyright does not prevent the copying of facts and ideas secures society's
interest in free speech.

Compulsory Licenses: Generally, the exclusive rights granted by the United
States Copyright Act may be exercised as the copyright owner sees fit.
If an author of a manuscript does not want the manuscript published or
distributed, the author as the copyright owner can prevent publication and
distribution. Similarly, these rights can be controlled through licenses
however the copyright owner desires. However, several limited
exceptions to this rule have been made in the Copyright Act under the guise
of compulsory licenses. These compulsory licenses allow third parties to
copy, perform, or distribute certain types of works without the copyright
owners permission, in exchange for which the third parties must pay a
predetermined royalty amount.

These compulsory licenses are extremely limited, and apply in only five
circumstances:

* the production of new sound recordings based upon an existing
non dramatic musical recording;
* the performance of a non dramatic musical recording in a jukebox;
* the simultaneous re-transmission of television signals by cable
television operators;
* the performance, display and recordal of certain works by public
broadcasting entities; and
* a temporary right to retransmit television signals via satellite to
household satellite dishes.

Before taking advantage of any of these compulsory licenses, an individual
should consult with a knowledgeable copyright attorney.


5. Duration of Copyright Protection


The duration of copyright protection for a particular work depends upon when
the work was created and first published. The three relevant time frames
are:

* works created on or after January 1, 1978;
* works created before January 1, 1978, but not published
until after this date; and
* works created and first published before January 1, 1978.


Works Originally Created On or After January 1, 1978:

A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is ordinarily given a term enduring for the author's life, plus an additional 50 years after the author's death. In the case of "a joint work" prepared by
two or more authors that was not a "work made for hire," the term lasts for
50 years after the last surviving author's death. For works made for hire,
and for anonymous and pseudonymous works (unless the author's identity is
revealed in Copyright Office records), the duration of copyright will be 75
years from publication or 100 years from creation, whichever is shorter.

Works Created Before January 1, 1978, But Not Published by That Date:

Works that were created but not published or registered for copyright before
January 1, 1978, have been automatically brought under the statute and are
now given Federal copyright protection. The duration of copyright in these
works will generally be computed in the same way as for works created on or
after January 1, 1978: the life-plus-50 or 75/100-year terms will apply to
them as well. The law provides that in no case will the term of copyright
for works in this category expire before December 31, 2002, and for works
published on or before December 31, 2002, the term of copyright will not
expire before December 31, 2027.


Works Originally Created and Published or Registered Before January 1, 1978

Under the law in effect before 1978, copyright was secured either on the
date a work was published or on the date of registration if the work was
registered in unpublished form. In either case, the copyright endured for a
first term of 28 years from the date it was secured. During the last (28th)
year of the first term, the copyright was eligible for renewal. The current
copyright law has extended the renewal term from 28 to 47 years for
copyrights that were subsisting on January 1, 1978, making these works
eligible for a total term of protection of 75 years.

There is no longer a need to make the renewal filing in order to extend the
original 28-year copyright term to the full 75 years. However, some benefits
accrue to making a renewal registration during the 28th year of the original
term.


6. Database Protection under Copyright Law


Protection for databases under copyright law is provided under the concept
of a compilation copyright. Compilation copyrights protect the collection
and assembling of data or other materials. The extent of the protection
provided to databases is explained in the following sections:

* databases as compilations;
* no separate protection for underlying data;
* Feist Case: originality & creativity requirement;
* database licensing and preemption; and
* the European Database Directive and proposed WIPO treaty.


Databases as Compilations: Databases are generally protected by copyright
law as compilations. Under the Copyright Act, a compilation is defined as a
"collection and assembling of preexisting materials or of data that are
selected in such a way that the resulting work as a whole constitutes an
original work of authorship." 17. U.S.C. § 101. The preexisting materials or
data may be protected by copyright, or may be unprotectable facts or ideas.

An example of a database that is protected as a compilation would be a
database of selected quotations from U.S. Presidents. The individual
quotations themselves may or may not be subject to copyright protection.
However, the selection of the quotations involves enough original, creative
expression that it is protected by copyright. Therefore, a database of
quotations will be protected by copyright as a compilation even though some
of the quotations are not protected.

A database of facts is also protected as a compilation, assuming the
grouping contains enough original expression to merit protection (see the
discussion of Feist below). An example of a protectable grouping of facts
would be a database of Internet locations for selected legal articles. Each
location consists merely of factual information, namely that a particular
article can be found at a particular URL location on the Internet. There is
no copyright protection for each location. Therefore, while the individual
locations can be copied by others, if an entire database of locations (or a
substantial portion of the database) were copied, the copyright in the
compilation would be infringed. The creative, original expression that is
being protected is the selection of locations for the database. If the
locations were divided by topic in the database, the organization of the
database would also be protected.



No Separate Protection for Underlying Data: Although databases may be
protected as compilations under U.S. copyright law, the underlying data is
not automatically granted protection. The Copyright Act specifically states
that the copyright in a compilation extends only to the compilation itself,
and not to the underlying materials or data. 17 U.S.C. § 103(b). As a
result, compilation copyrights cannot be used to extend copyright protection
to ideas or facts that are otherwise unprotectable (it is a basic premise of
copyright law that there is no copyright protection for ideas and basic
facts).

Thus, a database of unprotectable works (such as basic facts) is protected
only as a compilation. Since the underlying data is not protected, U.S.
copyright law does not prevent the extraction of unprotected data from an
otherwise protectable database. In the example of a database of presidential
quotations, it would therefore not be a violation of copyright law to
extract (copy) a quotation from George Washington from the database. On the
other hand, it would be violation to copy the entire database, as long as
the database met the Feist originality and creativity requirements.

Feist Case: Originality and Creativity: In the case of Feist Publications, Inc.
v. Rural Telephone Service Company, Inc., the U.S. Supreme Court ruled that
a compilation work such as a database must contain a minimum level of
creativity in order to be protectable under the Copyright Act.

Rural Telephone Service Company, Inc. was a local telephone company in
Kansas that published telephone directories based on data that it obtained
from its subscribers. Feist Publications, Inc. was a publisher of area-wide
telephone directories covering a much larger geographic range than Rural's
directories. In order to publish its white pages, Feist needed to use the
information Rural had in its telephone directories. Feist first tried to
license the information in Rural's white pages directly from Rural. When
Rural refused, Feist extracted the listings it needed from Rural's directory
without Rural's consent. Although Feist altered many of Rural's listings,
many were identical to listings in Rural's white pages. Rural sued Feist for
copyright infringement in the compilation that made up its white pages. Two
lower courts ruled in Rural's favor, holding that Feist's extraction of data
from Rural's white pages infringed upon Rural's copyright interests.

The Supreme Court, however, held that Rural's white pages are not entitled
to copyright protection, since the white pages did not meet the statutory
requirement for originality under 17 U.S.C. §102(a). According to the
Supreme Court, a compilation is not copyrightable per se, but is
copyrightable only if its facts have been "selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes an
original work of authorship," citing the definition of a compilation in 17
U.S.C. §101. According to the Supreme Court, the statute envisions that some
ways of selecting, coordinating, and arranging data are not sufficiently
original to trigger copyright protection. In applying this originality
requirement, the Supreme Court held that Rural's white pages were not
selected, coordinated, or arranged in such a way as to create an original
work of authorship. Rural's selection of listings--subscribers' names,
towns, and telephone numbers--was obvious and lacked the modicum of
creativity necessary to transform mere selection into copyrightable
expression. Arranging names alphabetically in a white pages directory is so
commonplace that it has come to be expected.

This holding overruled numerous lower courts that adopted a "sweat of the
brow" or "industrious collection" test of copyrightability. Under this test,
if a compilation was created as a result of a great deal of effort (such as
the collection of thousands of names and addresses), copyright protection
would extend to the compilation regardless of the creativity or originality
in the selection, coordination, or arrangement of the facts. In fact, under
this overruled doctrine, copyright protection extended to each fact
contained within the compilation--no extraction of facts from a compilation
was allowed. The Supreme Court expressly stated that this "sweat of the
brow" analysis was faulty, and that copyright extended only to the original
selection, coordination, and arranging of data, and not to any unprotected
facts contained within the compilation.

Database Licensing and Preemption: As a result of the Supreme Court's
holding in Feist, it is clear that not all databases are protected by
copyright law as compilations. In order to be protected, the database must
be original in its selection, coordination, and arrangement. The mere
alphabetic arrangement of data is not original enough for protection by
copyright law unless there is some originality in the selection or
coordination of the data. In addition, Feist makes it clear that even if a
database is protected by copyright law as an original work, this protection
will not prevent an individual from extracting factual data from the
database (short of copying the selection and arrangement of the database as
a whole).

The limited copyright protection provided to databases makes it imperative
that database owners and developers protect their databases through contract
law. Through an enforceable contract, typically in the form of a license to
use the database, the end user can be prohibited from extracting data from
the database for uses other than those intended by the database owner. For
instance, a contract could prohibit the end user from making data extracted
from the database available to third parties, or from including the
extracted data in a new database.

Some have argued that contracts that protect databases beyond the protection
available through copyright law should be "preempted" by the Copyright Act
itself. The concept of preemption is a difficult one. Basically, preemption
by the Copyright Act means that since the federal government has enacted the
Copyright Act to govern the protection given to original works of
authorship, individual states (i.e., New York or California) are prohibited
from having contradictory laws. As a result of the ability of a federal
statute to preempt state law, and the explicit preemption set forth in the
Copyright Act at 17 U.S.C. § 301, no state may create rights that are
equivalent to any of the exclusive rights provided under the Act. It is this
concept of preemption that prevents copyright protection from varying
depending upon the state where a work of authorship is created.

Since a contract is enforced under state law, some courts have refused to
enforce contracts that provide copyright-like protection to "unoriginal"
databases and facts under the theory that such contracts are preempted by
the Copyright Act. However, the vast majority of recent court decisions have
held that such contracts ARE NOT preempted and are enforceable. These courts
generally find that since a breach of contract claim requires proof that the
parties involved entered into a contract, the contract claim is not the
equivalent of any of the exclusive rights provided under the Copyright Act
and therefore is not preempted.

An example of the importance of database contracts can be found in the case
of ProCD, Incorporated v. Matthew Zeidenberg and Silken Mountain Web
Services, Inc. In this case, the court was faced with a situation where an
end-user of a CD ROM phone database extracted a large portion of the
database and made it available over the Internet on his web page. The
database in this case was nearly identical to the type of data in the Feist
case--names, addresses, and phone numbers. The lower court rejected all
copyright claims and found that the shrink-wrap license that controlled the
end user's right to use the data was both unenforceable (as a shrink wrap
license) and preempted by the Copyright Act. As a result, there was no
relief available to the creator of the phone database and the end-user was
free to extract the data and use it as he saw fit.

On appeal to the Fifth Circuit, however, the lower court decision was
reversed. The Fifth Circuit acknowledged that the database might not be
sufficiently original to be protected by copyright. As a result, there was
no copyright infringement by the end-user. However, the Fifth Circuit found
the end-user to be guilty of breach of contract, since the shrink-wrap
license for the CD ROM prohibited the end-user's conduct. The Fifth Circuit found the license to enforceable. In addition, the Fifth Circuit rejected the argument
that the shrink wrap license must be considered preempted by the Copyright
Act, finding that the enforcement of this contract was not equivalent to any
of the exclusive rights provided by the Copyright Act. The court would not
say that there could never be a time that a contract would be preempted,
only that these kinds of licenses were not preempted.

European Database Directive and the Proposed WIPO Database Treaty: As
explained above, databases are protected by U.S. copyright law as
compilations, but only if they are selected, coordinated, or arranged in
such a way that they constitute an original work of authorship. This
copyright protection extends only to the compilation itself, which means
that some of the data can be extracted from a protected database without
violating the copyright in the database. If the database is unprotected by
copyright law, the entire database may be copied unless such acts are
prohibited by contract.

Europe, however, provides much greater protection of databases. Under the
Database Directive adopted by the European Parliament on March 11, 1996, a
database can be protected in two ways. First, the Directive provides that
databases shall be protected under copyright law where the selection or
arrangement of the contents constitutes the author's own intellectual
creation. This right is similar to that provided under U.S. law, in that it
provides protection to a database (not the underlying data) and in that it
is limited to databases containing a sufficient degree of creativity in the
selection or arrangement of the data. The second right, however, provides
for a sui generis right that prohibits the extraction or reutilization of
any database in which there has been a substantial investment in either
obtaining, verification, or presentation of the data contents. Under this
second right, there is no requirement for creativity or originality. In
effect, this right gives databases in Europe the type of "sweat of the brow"
protection that was explicitly rejected by the Supreme Court in Feist. The
sui generis right lasts for fifteen years from the date of the database's
creation.

In a defeat for North American database interests, the sui generis right
granted under the Database Directive applies only to databases created by
companies based in countries that are members of the European Union. Thus,
European companies (and European subsidiaries) will have greater protection
for their databases than non-European companies.

Member states in the European Union must enact the Database Directive by
January 1, 1998.

In a related development, the World Intellectual Property Organization
considered approving a Treaty on Intellectual Property in Respect of
Databases in its December 1996 Diplomatic Conference on Certain Copyright
and Neighboring Rights Questions. The proposals for this Treaty focused on
the creation of a sui generis right similar to that created in the European
Database Directive. Although an agreement could not be reached on this
Treaty, participants in the Diplomatic Conference agreed to continue
developing the language for the treaty.

In the U.S., a bill to provide sui generis rights to databases was submitted
to the House of Representatives on May 23, 1996 by Representative Moorhead.
Given the current emphasis placed on protecting databases, it may only be a
matter of time before sui generis protection for non-original databases is
available throughout the world.

See also the pamphlets published by the Copyright Office of the United States.