23 Copyright Theory and History

“The more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the tradeoff.” United States Supreme Court in  Sony Corp. v. Universal City Studios (1984)

Unlike many obscure legal terms, the nature of “copyright” reveals itself transparently in the term itself. Copyright law provides the right to copy to certain individuals or corporate entities. This last point is important — copyright does not recognize a fundamental or natural right applicable to all. Rather, it grants a right to copy to only a small subclass of individuals, creating in effect a monopoly power (ostensibly for a limited time) to make copies of a certain defined set of works (books, music, films, etc.).

Copyright protects the expression of ideas, not the ideas themselves. For example, suppose you wrote a song about a rainy day that is in the key of D minor in a slow, triple meter. Your copyright is only on your particular song on that subject using those musical components in a particular way. Somebody else could also write a song about a rainy day in D minor in a slow triple meter without violating your copyright. You don’t own a copyright on your idea for a song, only on the particular song you have written using those ideas. Those same ideas can be used by others to write songs that are different enough in musical particulars that they would not infringe on your copyright.

The first U.S. copyright law was inspired by and modeled on a British law enacted in 1710, the Statute of Anne (named after Queen Anne of England, who ruled from 1665-1714). This was the first legal statute governing the right to copy printed works, rather than leaving such arrangements to private negotiation. But the Statute of Anne did not extend that right to all people. Rather, it created a time-limited monopoly by granting the right to copy a work exclusively to its author for a period of 14 years (renewable once), after which the work would enter the public domain. The act also preserved another pre-existing monopoly held by a single British publishing firm, Stationer’s Company, in its right to publish books in the United Kingdom. In order to secure the copyright, the statute required that authors publish their works only through the Stationer’s Company. The significance of the Statute of Anne is primarily its recognition of the rights of authors to control the making of copies of their works, thus giving them a measure of economic control over their creative product.

Public Domain

The U.S. federal copyright scheme described in this chapter bifurcates musical (and other) works into two classes: those that are copyrighted and those that are not. Musical works that are not subject to a copyright exist in the public domain. The public domain consists of all musical works (a) that pre-date the first copyright act of 1790, or (b) whose copyright term has expired. It used to be that the public domain also included musical works whose authors did not register their works with the U.S. Copyright Office. However, registration is no longer required (as of 1976) for a work to be copyrighted, so all works are copyrighted regardless of registration until the term of copyright has expired.

If a work is in the public domain, then that particular expression of musical ideas cannot be the basis for a copyright infringement claim as nobody owns it. However, a new musical work that incorporates musical elements in the public domain may contain enough original material so that the new work could gain copyright protection. However, the copyright of the new work containing public domain elements would only cover those original expressions found in the new work and not the public domain elements themselves. These concepts will be explored further below when we look at copyright infringement cases.

The Beginning: Copyright Act of 1790

Article 1, Section 8 of the United States Constitution (the “Copyright Clause”) gives Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” 

The first session of the U.S. Congress (1789-1790) resulted in passage of both the Patent Act of 1790 and the Copyright Act of 1790 to implement the Constitution’s Copyright Clause. Copying the language of Britain’s Statute of Anne, the Copyright Act confers on authors of certain printed material (books, maps, and charts) an exclusive right for a period of 14 years to control the making of copies of their works. The 14-year term was renewable once during the the author’s life for works not published prior to the date of the act. The Copyright Act only applied to United States citizens until passage of the International Copyright Act of 1891.

The first Copyright Act did not expressly mention musical works, though musical works that were printed as books were routinely allowed to be registered and protected under the law. The Act required works to be registered with the clerk of the author’s local federal District Court in order to receive protection (for a fee of 60 cents) and copies of the work to be deposited with the clerk. The Act specified that any person who was shown to have infringed another’s registered copyright would be “liable to suffer and pay to [the copyright owner] all damages occasioned by such injury.”

Copyright in Musical Compositions and Extension of Term: Copyright Act of 1831. In 1831, Congress made its first revisions to the Copyright law, recognizing printed musical compositions as copyrightable works and doubling the term of a copyright from 14 years to 28, with one option to renew for an additional 14 years. It is important to distinguish here that this law only protected printed musical works and not the performance of musical works.

Adding International Protections: International Copyright Act of 1891 and the Berne Convention. The International Copyright Act of 1891 provided copyright protection under U.S. laws to citizens of other countries that wished to register their works in the U.S. The Copyright Act of 1790 extended copyright protection only to U.S. citizens. One limitation of the act is that it only provided copyright protection to works that were printed in the United States. The 1891 act formalized an agreement by the United States in 1889 to abide by the terms of the Berne Convention, an international copyright agreement reached among many other countries in Berne, Switzerland in 1886. The Berne Convention lists the minimal copyright protections that member countries agree to, and provides that member countries will respect the copyright laws of the “country of origin” for the copyrighted work in question. 

1897 Amendment to the Copyright Act. In 1897, Congress further amended the Copyright Act to extend copyright protection of musical works to public performances of those works. Note that this amendment provided for a general copyright for public performances, not only those “for profit,” which was language added to the 1909 Copyright Act (see below), which seemingly limited the public performance copyright. The “for profit” limitation was eroded by subsequent case law and the 1976 Copyright Act eliminated the “for profit” limitation entirely.

Copyright Act of 1909. The Copyright Act of 1909 was the first wholesale, major revision of U.S. copyright law since the initial act of 1790.

• Compulsory Mechanical License. In 1908, the United States Supreme Court ruled in White-Smith Music Publishing Company v. Apollo Company that pianola music rolls (cylindrical rolls with holes punched in them that served as the “software” for player pianos in the early 20th century) and other reproductions that are part of a mechanical music playback process are not eligible for copyright protection as copies of printed music because they are not intelligible as music notation. In response to this ruling, Congress included in the 1909 act one of the foundations of modern music copyright law, the compulsory mechanical license. 
• The license created by this act provides that, after a copyright holder initially agrees to the duplication of their composition by a mechanical process (such as recording), thereafter the copyright holder is compelled to issue a license to any other person who wishes to also make a mechanical duplication of that composition. The only stipulations to this compelled license are that the licensee give notice of the intent to make the recording to the copyright office and pay the copyright holder a statutory royalty of $.02 for every mechanical copy sold (an amount that has subsequently been increased).
• Congress’s intent in creating the compulsory mechanical license was to prevent some person or entity from creating a monopoly on recordings or other reproductions of musical performances and thus constraining the free market for music. This was not a hypothetical fear, as at the time the Aeolian company had a near-monopoly on player piano rolls.
• Publication and Notice. The 1909 act specifies that only published works that contain a copyright notice are protected by the federal copyright law. By extension, unpublished works could only be protected under state law. (Note: The notice requirement has since been removed.)
• Extension of term. The Copyright Act of 1909 again extended the duration of a copyright to 28 years, with one 28-year extension, for a total term of 56 years.

Copyright Act of 1912. This act added motion pictures to the list of works that could be protected through copyright.

Sound Recording Amendment of 1971. This act extended copyright protection to sound recordings (rather than just musical compositions) published before the act’s effective date of February 15, 1972. (The Music Modernization Act of 2018 has since extended federal copyright protection to sound recordings published before 1972.)

Copyright Act of 1976. The Copyright Act of 1976 was a complete revision of the U.S. copyright law and superseded the Copyright Act of 1909. The primary impetus for the new act was to address the impact on copyright of various media and reproduction technologies that had transformed the media landscape since the 1909 act, such as audio recording, movies, photocopying, television, etc. The act also brought U.S. copyright law into compliance with the Universal Copyright Convention, an international copyright protocol with which the U.S. had become affiliated in 1955. The 1976 act specified that its provisions would go into effect on January 1, 1978.

• Protection for unpublished works. The 1976 Act extends the protection of federal copyright law to any work that is  “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.” This broad definition does away with the previous requirements that the work be published and contain a copyright notice. It also extends protection to all new media technologies including those which are yet to be developed.
• Enumerated Exclusive Rights. The 1976 act revised the 1909 act’s list of protected rights that a copyright holder possesses to the following:
  • • 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), and
    • 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).
  • Fair Use. The 1976 act incorporated a four-part balancing test to determine if a use of copyrighted material falls within the doctrine of “fair use” that had been developed as a defense to copyright infringement in the courts. We will learn the details of the fair use doctrine in a later chapter.
  • Copyright Registration Not Required. The 1976 act removed the requirement for a work to be registered with the U.S. Copyright Office in order to be protected. However, in order to bring a copyright infringement suit in court, the work would have to be registered (which would apply retroactively to the date the work was created).
  • Term. The 1976 act continued the practice of extending the term of a copyright with every major copyright revision. In this case, the term was substantially extended from the previous 56 years of the 1909 act (28 years, plus 28-year extension) to “the life of the author plus 50 years.” The 1976 act also provided that previously-copyrighted works that had not used the 28-year extension and were not yet in the “public domain” were now eligible for a 47-year extension, bringing the total term for those works to 75 years. (The Copyright Renewal Act of 1992 later made the copyright extension automatic.) For anonymous works and “works for hire” (to be discussed later), the act specified a term of 75 years.

Berne Implementation Act of 1988. This act allows the United States to join the international Berne Convention on copyright laws, effective March 1, 1989. It amends the 1976 Copyright Act by doing away with copyright notice requirements, as required by the Berne Convention.

Copyright Renewal Act of 1992. This act removes the copyright renewal requirement that at the time still applied to works published between 1964 and 1977, making the renewal automatic.

Copyright Term Extension Act of 1998. This Act extended copyright terms once again, to life of the author plus 70 years, and for “works for hire” to 120 years after creation or 95 years after publication, whichever is earlier. These remain the current copyright term lengths today. Copyright protection for works published before January 1, 1978, was increased to 95 years from publication date. This made U.S. copyright terms consistent with those of the European Union, which was seen as desirable (though not required) after the U.S. formally adopted the Berne Convention in 1989.

Fairness in Music Licensing Act of 1998. Passed simultaneously with the Copyright Term Extension Act, this act provided for an exemption to music performance licensing requirements for small restaurants and bars under certain square footages and using only certain playback equipment.

Digital Millennium Copyright Act of 1998. This act has five titles, but we will focus here on only the two most significant to the music industry:

• Digital Rights Management Evasion. Title I of this act provides for penalties for the evasion or circumvention of digital rights management (DRM) protection built into various recording technologies.
• Online Copyright Infringement Liability Limitation Act. Title II of the act provides for heightened penalties for copyright infringement on the internet. More significantly, the act also creates a “safe harbor” for internet service providers against claims of infringement provided they comply with certain guidelines. We will go into more detail on this “safe harbor” in the chapter on copyright infringement claims, particularly with respect to YouTube, which relies on this safe harbor to avoid such claims.

Music Modernization Act of 2018. This act revises copyright law as follows:

• Blanket Streaming Licenses. In its most significant change to existing law, the act provides that digital music streaming companies, such as Spotify, can apply for a blanket license to stream any copyright-protected musical work by agreeing to pay a royalty to songwriters determined by the Copyright Royalty Board. The complexities of this royalty scheme will be explored in detail in a separate chapter below. The act also provides that streaming companies may choose to voluntarily negotiate directly with publishers and songwriters to pay a different amount of royalties.
• Mechanical Licensing Collective. The act establishes a new organization, the Mechanical Licensing Collective, whose mission includes the following:
  • Administer the newly created blanket licenses for digital streaming of musical compositions;
  • Collect and distribute the mechanical royalties on musical compositions, including digital downloads and streaming;
  • Create and maintain a “musical works database” containing information about the various rights holders in musical works, their addresses, etc. Before this act, the only database of musical works protected by copyright and their rights holders was that maintained by the U.S. Copyright Office. The Copyright Office’s database was notoriously incomplete, such that streaming services could often claim they could not locate rights holders, even to such well-known acts as Ed Sheeran and Brian Wilson of the Beach Boys.
  • Co-ordinate identification of owners of rights in musical works or sound recordings, and process claims of ownership related to those rights

The Mechanical Licensing Collective is staffed by 14 voting members representing publishers and songwriters.

• Unclaimed Royalties. Because many streaming providers claimed to be unable to locate the rights holders to musical works and thus pay them accrued royalties, this act provides that all unclaimed royalties can be held for only three years, at which point they must be distributed according to the proportional market share of all songwriters and publishers.
• Pre-2018 Lawsuits limitations against Streaming Providers. In a major concession to the streaming industry, the act prevents musical work rights holders from suing streaming companies after January 1, 2018 for any damages other than actual royalties owed (no lost profits or other damages).
• Pre-1972 Sound Recordings. This act provides federal copyright protection for sound recordings published before 1972, which had previously been excluded when sound recordings were first granted protection in 1971. The act also creates four new tiers of copyright expiration for these newly-protected pre-1972 sound recordings: Recordings made before 1923 get three years protection from October 11, 2018; recordings made between 1923 and the end of 1946 get 95 years from date of first publication plus 5 years; recordings made between 1947 and the end of 1956 get 95 years from date of first publication plus 15 years; all recordings made after January 1, 1957 will have their protection terminate on February 15, 2067
• Producers. The act provides that producers will be paid royalties directly from SoundExchange (the company that distributes sound recording royalties from non-interactive streaming and satellite radio) when the recording company or artist has sent a letter to SoundExchange notifying them of the producer’s royalty share.