The Evolution Of Copyright Law: A Historical Perspective

Copyright law has a long and complex history, with the first copyright statute being the British Statute of Anne in 1710. This law was the first to grant legal protection to publishers of a book, and it also granted 21 years of protection for any book already in print. The law was concerned with the reading public, the continued production of useful literature, and the advancement and spread of education.

The first federal copyright act in the United States was the Copyright Act of 1790, which was modelled on the Statute of Anne. This law protected books, maps, and charts for 14 years, with a 14-year renewal period. Since then, copyright law in the US has been revised several times, with the most recent general revision being the Copyright Act of 1976.

The Statute of Anne and the Copyright Act of 1790

The Statute of Anne, also known as the Copyright Act of 1710, was the first statute to provide for copyright regulated by the government and courts, rather than by private parties. It was passed in 1710 by the Parliament of Great Britain and was the first copyright statute in the world. The statute was an act of the Parliament of Great Britain, passed during the reign of Queen Anne, and it established a pragmatic bargain involving authors, booksellers, and the public.

The Statute of Anne prescribed a copyright term of 14 years, with a provision for renewal for a similar term, during which only the author and the printers to whom they chose to license their works could publish the author's creations. Following this, the work's copyright would expire, with the material falling into the public domain. The statute also included provisions for the public interest, such as a legal deposit scheme.

The Copyright Act of 1790 was the first copyright law enacted under the new United States Constitution. It was modelled after Britain's Statute of Anne and was relatively limited in scope, protecting books, maps, and charts for only 14 years, with a renewal period of another 14 years. The act was meant to provide an incentive for authors, artists, and scientists to create original works by providing creators with a monopoly. At the same time, the monopoly was limited to stimulate creativity and the advancement of science and the useful arts through wide public access to works in the public domain.

The expansion of copyrightable works

The scope of copyrightable works has also expanded due to the standardisation of national copyright laws through international and regional agreements, such as the Berne Convention and the European copyright directives. While there is consistency among nations' copyright laws, each jurisdiction has separate and distinct laws and regulations.

One notable expansion of copyrightable works relates to the inclusion of software as a subject matter. This development was influenced by the recommendations of the National Commission on New Technological Uses of Copyrighted Works (CONTU) and the subsequent EU Computer Programs Directive.

Additionally, the enactment of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the World Intellectual Property Organization Copyright Treaty further expanded the scope of copyrightable works.

Another significant expansion pertains to the criminalisation of copyright infringement. This development has introduced a new level of controversy into copyright policy, with critics arguing that digital copyright is fundamentally different and challenging to enforce.

Furthermore, the creation of anti-circumvention laws and the application of secondary liability doctrines to cover file-sharing networks have also broadened the scope and operation of copyrightable works.

The evolution of technology has played a pivotal role in the expansion of copyrightable works, and it will continue to shape the landscape of copyright law in the future.

The duration of copyright protection

For works created after January 1, 1978, copyright protection generally lasts for the life of the author plus an additional 70 years. 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 70 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 95 years from publication or 120 years from creation, whichever is shorter.

For works created before January 1, 1978, but not published until after this date, the duration of copyright will generally be computed in the same way as for works created on or after January 1, 1978: the life-plus-70 or 95/120-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, 2047.

For works created and first published 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 a second renewal term of an additional 28 years. The current copyright law has extended the renewal term from 28 to 67 years for copyrights that existed as of January 1, 1978, making these works eligible for a total term of protection of 95 years.

Works published before January 1, 1929, are in the public domain.

The Copyright Act of 1976

The Act's Provisions

The Act spells out the basic rights of copyright holders, codifying the doctrine of "fair use", and for most new copyrights, it adopted a unitary term based on the date of the author's death rather than the prior scheme of fixed initial and renewal terms.

Under the Act, copyright protection extends to "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". The Act defines "works of authorship" as any of the following:

• Musical works, including any accompanying words
• Dramatic works, including any accompanying music
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works

An eighth category, architectural works, was added in 1990.

The Act granted five exclusive rights to copyright holders:

• The right to reproduce (copy) the work into copies and phonorecords
• The right to create derivative works of the original work
• The right to distribute copies and phonorecords of the work to the public by sale, lease, or rental
• The right to perform the work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, motion picture, or other audiovisual work)
• The right to display the work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, pictorial, graphic, sculptural, motion picture, or other audiovisual work)

A sixth exclusive right was later included in 1995 by the Digital Performance Right in Sound Recordings Act: the right to perform a sound recording by means of digital audio.

The Act's Impact

The Act was designed to address intellectual property questions raised by new forms of communication such as television, motion pictures, sound recordings, and radio. It was also influenced by the development of, and the United States' participation in, the Universal Copyright Convention (UCC).

The Act's extension of the term of subsisting copyrights was intended to ensure that "royalties will be paid to widows and heirs for an extra 19 years for such about-to-expire copyrights as those on Sherwood Anderson's Winesburg, Ohio". It also sought to protect authors' rights "for life plus 50 years—the most common term internationally and the one Twain fought for in his lifetime".

The Act's impact on innovation has been questioned by critics, who argue that it discourages innovation and perpetuates older businesses. Its impact on internet radio has also been a cause for concern, with critics pointing out that services like Pandora pay over 60% of their revenue in licensing fees while others pay far less for delivering the same service.

The Sonny Bono Copyright Term Extension Act

The history of copyright law in the United States began with the introduction of the printing press to England in the late 15th century. As the number of presses grew, authorities sought to control the publication of books by granting printers a near monopoly on publishing. The Licensing Act of 1662 confirmed that monopoly and established a register of licensed books to be administered by the Stationers' Company, a group of printers with the authority to censor publications.

The Statute of Anne, passed in 1710, established the principles of authors' ownership of copyright and a fixed term of protection of copyrighted works (14 years, and renewable for 14 more if the author was alive upon expiration). The statute prevented a monopoly on the part of the booksellers and created a "public domain" for literature by limiting terms of copyright and by ensuring that once a work was purchased, the copyright owner no longer had control over its use.

The Copyright Term Extension Act, also known as the Sonny Bono Copyright Term Extension Act, extended copyright terms in the United States in 1998. The Act was named after the late Congressman Sonny Bono, who had previously sponsored a similar bill. The Act extended the term of copyright for an additional 20 years, bringing the total term of protection to the life of the author plus 70 years. For works of corporate authorship, the term was set at 95 years from publication or 120 years after creation, whichever is earlier.

Opponents of the Act, on the other hand, argued that copyright protection was never intended to be extended in the US and that such extensions would not benefit the public. They contended that the Act amounted to corporate welfare and have tried, unsuccessfully, to have it declared unconstitutional.

Frequently asked questions