Cecily Zamora
Common law copyright is a legal doctrine that grants copyright protection based on the common law of various jurisdictions. It is based on the contention that copyright is a natural right, and creators are entitled to the same protections as anyone with tangible and real property. In the United States, common law copyright refers to most state law copyright claims and took effect in 1978 with Section 301, which preempted all state common law copyright claims that fell under the subject matter in Section 102 or Section 103. However, there is still legal room for state and common law copyright laws to operate, and occasionally, copyright infringement cases are brought based on state statutes or common law. For example, in the 2005 New York State case Capitol Records v. Naxos of America, the court held that pre-1972 sound recordings, which do not receive federal copyrights, may receive state common law copyrights.
| Characteristics | Values |
|---|---|
| Definition | Common law copyright is the legal doctrine that grants copyright protection based on common law of various jurisdictions, rather than through protection of statutory law. |
| Natural Right | Copyright is a natural right, so creators are entitled to the same protections anyone would have in regard to tangible and real property. |
| Federal Copyright Law | Most state-law copyright claims are preempted by federal copyright law, but for some categories of works, common law (state) copyright may be available. |
| Registration | Registering a work is not mandatory, but for U.S. works, registration (or refusal) is necessary to enforce the exclusive rights of copyright through litigation. |
| Statutory Protection | Under Section 301, a work would obtain statutory protection as soon as it is "created" or fixed in a copy or phonorecord for the first time. |
| Effective Date | The statute applies to all works created after 1 January 1978, regardless of whether they are published or disseminated. |
| Common Law Protection | Section 303 of the statute provides protection for works created before 1 January 1978 and guarantees a minimum period of statutory copyright. |
| Preemption of State Law | Section 301 intends to preempt and abolish any rights under the common law or statutes of a state that are equivalent to copyright. |
| Common Law Copyright Infringement Cases | Despite the efforts of Congress to abolish common law copyrights, cases are still brought for common law copyright infringement. |
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What You'll Learn
Common law copyright's history in the US
The history of common law copyright in the US dates back to colonial times, with the first federal copyright law, the Copyright Act, passed in 1790. This act has been updated several times, including a major revision in 1976, to broaden the scope of copyright, change the term of protection, and address new technologies.
Before the 1976 Act, copyright protection was provided by a dual system under both federal and state laws. Federal law under the 1909 Copyright Act protected published or registered works, while state copyright laws, including "common law copyright", protected unpublished and unregistered works. The 1976 Act abolished this dual system, replacing it with a single federal system.
The concept of common law copyright is based on the idea that copyright is a natural right, and creators are entitled to the same protections as anyone with tangible and real property. This "natural right" aspect was addressed in the US Supreme Court case Wheaton v. Peters in 1834, which ruled that authors of unpublished works had a common law right to control the first publication, but not reproduction after the first publication.
In the US, common law copyright also refers to state-level copyrights. For example, in the 2005 New York State case Capitol Records v. Naxos of America, the court held that pre-1972 sound recordings, which do not receive federal copyrights, may receive state common law copyrights. This precedent was partially overruled in 2016, limiting the extent of common law copyright in New York.
The length of copyright protection in the US depends on when a work was created. For works created on or after January 1, 1978, the copyright term is the life of the author plus seventy years after their death. Works created before 1978 have different timeframes, with a minimum period of statutory copyright guaranteed.
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Common law copyright's natural right debate
The concept of common law copyright is based on the idea that copyright is a natural right. This means that creators are entitled to the same protections as anyone else when it comes to tangible and real property. However, this notion of "natural rights" has been disputed, with some arguing that it is not supported by historical evidence.
The debate surrounding common law copyrights as a natural right has a long history. In the United Kingdom's Donaldson v. Beckett case of 1774, the courts addressed the "natural right" aspect of the doctrine. Similarly, in the United States, the Wheaton v. Peters case of 1834 dealt with the same issue. In both instances, the courts concluded that copyright is a limited right, subject to the conditions and terms imposed by the legislature.
The House of Lords, in the Donaldson v. Beckett case, ruled that copyright in published works was subject to statutory durational limits. While the specific reasoning behind this decision is debated, scholars generally agree that the House did not outright reject the concept of common-law copyright. They acknowledged an author's pre-existing right to their work until they willingly relinquish it. However, they also asserted that before the Statute of Anne, the right to copy was based on patents, privileges, and bylaws rather than common law. Ultimately, they determined that the Statute of Anne superseded any previous common law rights of the author.
In the United States, the 1978 enactment of Section 301 further shaped the landscape of common law copyright. This legislation preempted all state common law copyright claims that fell under the subject matter of copyright law. This move towards a single Federal system aimed to simplify and enhance the effectiveness of copyright law, promoting uniformity, writing, and scholarship.
While federal preemption has taken precedence in many cases, there are still instances where common law (state) copyright may apply. For example, the 2005 Capitol Records v. Naxos of America case in New York State ruled that pre-1972 sound recordings could receive state common law copyrights, even if they did not qualify for federal copyrights. This ruling was later clarified and limited by the 2016 Flo & Eddie v. Sirius XM Radio case, which specified that the extent of common law copyright in New York did not cover the performance of a sound recording.
The ongoing debate surrounding common law copyrights as a natural right reflects the complex nature of intellectual property protection. While some argue for the inherent right of creators to their work, others emphasize the need for statutory frameworks and limitations. The evolution of copyright law continues to shape the balance between protecting creative endeavours and ensuring accessibility and the wider social good.
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Common law copyright cases in the US
Common law copyright is the legal doctrine that grants copyright protection based on the common law of various jurisdictions, rather than through protection under statutory law. It is based on the contention that copyright is a natural right, and creators are thus entitled to the same protections as anyone would have regarding tangible and real property.
In the United States, common law copyright refers to most state law copyright claims. In 1978, Section 301 came into effect, preempting all state common law copyright claims that fall under the subject matter in Section 102 (Subject matter of copyright: In general) or Section 103 (Subject matter of copyright: Compilations and derivative works).
Despite federal preemption, some categories of works may still receive state common law copyright protection. For example, in the 2005 New York State case Capitol Records v. Naxos of America, the court held that pre-1972 sound recordings, which do not receive federal copyrights, may receive state common law copyright protection. This ruling was later clarified and limited in 2016 with Flo & Eddie v. Sirius XM Radio, which determined that the extent of common law copyright in New York did not cover the performance of a sound recording.
In the United States, copyright is a type of intellectual property that protects original works of authorship once they are fixed in a tangible form of expression. To be copyrightable, a work must generally have some originality and be fixed in a tangible medium. Copyright exists automatically in an original work once it is fixed, but a copyright owner can take steps to enhance protection, such as registering the work. Registering a work is not mandatory, but for US works, registration is necessary to enforce exclusive rights through litigation.
Article I, Section 8 of the US Constitution provides that Congress can "promote the progress of... useful art" by granting authors exclusive rights to their "writings." This clause forms the foundation of US copyright law, and copyright holders possess a bundle of rights, including the rights to reproduce, distribute, and publicly perform or display the work, as well as the right to create derivative works. To sue for infringement, the author must have registered their work with the US Copyright Office.
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Federal preemption of common law copyright
In the context of copyright law, federal preemption was introduced in 1976 with the enactment of the Copyright Act. The Act included a federal preemption provision, codified at 17 U.S.C. § 301, which came into effect on January 1, 1978. This provision was designed to create a uniform system of copyright protection across the country, replacing the previous dual system where both state and federal governments provided separate and sometimes conflicting protections.
Section 301 of the Copyright Act explicitly states its intention to "preempt and abolish any rights under the common law or statutes of a State that are equivalent to copyright and that extend to works coming within the scope of the Federal copyright law." This means that for works that fall within the scope of federal copyright law, as outlined in Sections 102 and 103 of the Act, state-level common law copyright claims are superseded by federal law. This includes works that are created, published, disseminated, or fall within the public domain, regardless of when they were created.
However, it is important to note that federal preemption of common law copyright does not apply to all categories of works. There are certain exceptions where state common law copyrights may still be available. For example, in the 2005 case of Capitol Records v. Naxos of America, it was ruled that pre-1972 sound recordings, which were not covered by federal copyrights, could be protected by state common law copyrights. This ruling was later clarified and limited by the 2016 case of Flo & Eddie v. Sirius XM Radio, which determined that the scope of common law copyright in New York did not cover the performance of a sound recording.
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Common law copyright in the UK
Common law copyright is a legal doctrine that grants copyright protection based on the common law of various jurisdictions, rather than through statutory law. It is based on the contention that copyright is a natural right, and creators are entitled to the same protections anyone would have in regard to tangible and real property.
In the United Kingdom, the concept of common law copyright was addressed in the 1774 case of Donaldson v. Beckett. In this case, the House of Lords ruled that copyright in published works was subject to the durational limits of the statute. While the reasoning behind this decision is disputed, most scholars agree that the House did not rule against common-law copyright. The Lords agreed that an author had a pre-existing right "to dispose of his manuscript ... until he parts with it". However, they determined that the Statute of Anne superseded any common-law rights of the author that may have existed prior to the statute.
The UK's approach to common law copyright differs from that of other European countries. While the UK protects the economic right of the copyright holder under common law, most European countries follow the droit d'auteur system, which is a more individual personal right tied to the identity and personality of the author.
In terms of specific legislation, copyright protection in the UK is governed by the Copyright, Designs and Patents Act 1988, as amended from time to time. This legislation was updated by the Copyright and Related Right Regulations 2003, which implemented international and EU rules on copyright in the digital environment. The 1988 Act provides that copyright protection is automatic for original works, without the need for registration.
It is important to note that the UK's approach to copyright has evolved over time. For example, the 1911 Act extended the term of the author's copyright to the lifetime of the author and 50 years thereafter, which remained the case under subsequent legislation. Additionally, the UK has recognised the copyright laws of foreign countries to some extent, particularly if they are a party to the Berne Convention for the Protection of Literary and Artistic Works.
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Frequently asked questions
Common law copyright is the legal doctrine that grants copyright protection based on the common law of various jurisdictions, rather than through protection of statutory law.
In the United States, common law copyright takes effect when a work is created or fixed in a copy or phonorecord for the first time. Works are original when they are independently created and have a minimal degree of creativity.
Common law copyright protects "original works of authorship" such as literary, musical, and other types of artistic work as long as they are fixed in a tangible medium (such as paper, canvas, or a recording).
