William Fisher, CopyrightX: Lecture 3.1, The Subject Matter of Copyright: Literature (and software)

Hello. I’m Terry Fisher. This is the third in a series
of twelve lectures on copyright. The topics of the lectures
are set forth on your screen. In the first, I examined the
foundations of copyright, specifically the set of treaties
that cause considerable convergence in the copyright systems in
various countries of the world. The concept of originality, and the
so-called idea expression distinction. In the second lecture, I discussed two
of the four main theories of copyright, the fairness and the
personality theories. In this lecture, I put theory to
the side and return to the law, focusing on the subject matter
of copyright, the kinds of things that copyright law applies to. You can see from the slide
where we’re going after this. There are two main
themes to this lecture. First, the subject matter
coverage of copyright law has grown dramatically
over the years, and is now a good deal larger than you might think. Certainly it reaches far beyond its
core, namely fine art and literature. Second, copyright law is
not unitary or homogeneous. Rather, the rules governing
the different kinds of things now subject to copyright
protection vary considerably. Partly as a result, the
business models associated with the different kinds
of works also vary. This second theme I refer to as
the disaggregation of copyright. I’ll begin to develop
it in this lecture, but it will figure in
future lectures as well. As usual, the lecture
will be accompanied by a fair amount of
illustrative graphic material. So I hope you’re watching this
recording on a computer or a device with a reasonably sized screen. One source of illustrative
material will be a map, which summarizes the main
features of the US Copyright system, and some ways in which the
copyright law in other countries differs from the US model. An interactive PDF
copy of that map can be downloaded from my home page, the
address of which is tfisher.org. I’ll begin with a brief overview of
the history of the subject matter coverage of copyright,
and then start over and examine each of the
sectors in more detail. US copyright law originates
in a 1790 federal statute. Only three kinds of works were
protected under the original statute– books, maps, and charts. Over the course of the 19th and 20th
centuries, Congress and the courts cooperated in expanding the
set of protected creations. Prints were added by statute in 1802. Musical compositions added in 1831. Dramatic works, in effect,
were added to the cluster by an 1856 statute which granted
the owners of copyrights in books the right to control public
performance of their works, which is the only form of protection
truly valuable to playwrights. This extension was confirmed by
subsequent statutory amendments. Photographs were added
by statute in 1865, as we saw in the first of
the lectures in this series. In 1883, in the Burrow-Giles
case, the Supreme Court rejected a constitutional challenge
to the addition of photography, but only because this posed
studio photo of Oscar Wilde was, in the court’s judgment, a
quote “useful, new, harmonious, characteristic and graceful picture”. Gradually, the aesthetic requirement
implicit in this ruling was softened, and copyright protection was tacitly
extended to photographs of all sorts. Paintings and drawings were added to
the set of protected works in 1870, as were statues– meaning
three-dimensional works of fine art– a type
of work later subsumbed into the broader category of works of
art and reproductions of works of art. Around the turn of the
century, advertisements were accepted into the fold. During the 19th century,
courts had generally been hostile to the extension of
copyrights to ads, on the ground that they did nothing to quote
“stimulate original investigation, whether in literature science, or art,
for the betterment of the people”. This skeptical position was
rejected by Justice Holmes in the Bleistein case, which was
also discussed in lecture number one. Bleistein, as you’ll recall,
extended copyright protection to a circus poster. Holmes reasoned, quote “a picture is
nonetheless a picture, and nonetheless a subject of copyright, that it
is used for an advertisement”. Motion pictures were invented by Thomas
Edison and his assistant William Dixon in the 1890s. Shown on your screen is a photo
of one of the first machines that they developed to view
their primitive movies. By 1903, an intermediate appellate
court had recognized movies as copyrightable subject matter, a
position later confirmed by Congress. Lectures, sermons, and
addresses were added to the list of copyrightable
materials by statute in 1909. Subsequently fictional
characters and plots were recognized by judicial
decisions as objects of protection. This, as you might imagine, is a tricky
subject to which we’ll return shortly. A complex series of steps
between 1909 and 1954 had the overall effect of
extending copyright protection to some useful articles. Which ones, we’ll consider in a moment. Sound recordings, as distinct
from the compositions they embody, were added to the fold in 1972. Pantomimes and choreographic
works were added as part of the 1976 general
reform of the copyright statute. Software was formally added in
1978, although, as we’ll see, early forms of protection for
software occurred in the 1960s. Last but not least, architecture was
grudgingly given special protection by statute in 1990 in response to
the United States’s belated accession to the Berne Convention. That’s where things stand today. Two gradual, intertwined
conceptual shifts underlie this steady expansion
of the zone of coverage. The first, which is nicely
traced by Oren Bracha, is a movement from a conception of
copyright as trade-specific regulation to a conception that
sees copyright as founded on the general principle
of the right of creators to control their original works. This change was partially completed
in the 1909 general reform of the copyright statute, and
fully completed in the 1976 reform. The second of the overall changes,
emphasized by Peter Jaszi, is a shift in what copyright is thought
to protect, from the text to the work. At the start of the 19th
century, lawyers and judges thought that copyright law
protected the sequence of words used in a book– in other
words, the text alone– against verbatim reproduction. By the early 20th
century, by contrast, they thought it shielded the market
value of the underlying work, no matter how it was expressed. As we’ll see in lecture number seven,
the effect of this reconceptualization was to render illegal, for the first
time, many forms of unauthorized use, including translations, abridgments,
and, perhaps most importantly, motion picture adaptations. Now that we’ve completed a brief
historical overview of the growth of US copyright law during the last
two centuries, let’s go back and examine in more detail each of
the sectors of copyrightable subject matter. For this purpose, we’ll be using
the map on copyright law, which I hope is by now familiar to you. As I mentioned, during this
survey I’ll highlight the ways in which the rules governing
the different kinds of things now subject to copyright protection
vary, and how, as a result, the business models associated with
those types of works also differ. The underlying thesis, to repeat,
is that the copyright system is disaggregated. As the map indicates,
the statutory basis for the subject matter
coverage of copyright is Section 102 of the federal statute. In the first lecture in this series,
we discussed subsection 102(b), which embodies, as we saw
there, the idea/expression distinction, and related
grounds for excluding work from copyright protection. We now focus on 102(a), which
details the kinds of things that copyrighted law includes. As you can see, the language
of 102(a) is capacious. It itemizes various kinds of things that
are subject to copyright protection, but it also includes a
blanket clause indicating that quote “original works
of authorship, of any sort, can be protected”. In other words, the itemized list on the
left of your screen is non-exhaustive. The first entry in the itemized
list consists of literary works. Such works are often thought to be
the heart of copyright protection. Included in this
category are many things you would naturally
think of as literary. For example, novels, short stories,
poems, newspaper or magazine articles, and so forth. Also included are some less
obvious things, such as catalogs, and, as we saw earlier,
advertising copy. Last but not least, the
term “literary works” is now construed to
incorporate computer software. The history and economic implications
of this highly counter-intuitive interpretation are very complicated. Here’s a brief introduction
to the topic of software, a subject to which we’ll
return several times. Before plunging into
the details of the law, it’s important to differentiate
the kinds of activities that some– not all–
software firms hope to curb. They’re listed in the map. The first consists of consumer
reproduction of object code. By object code, I mean the
collection of ones and zeros that embody the working
version of the program. By consumer reproduction, I mean the
behavior of individual software users. So for example, if I
borrowed a disc that you had purchased containing
PowerPoint or Final Cut Pro and made a copy of one of those
programs onto my own laptop hard drive, my behavior would fall
into this first category. Commercial reproduction
of object code consists of the same conduct
on a commercial scale. The vendors on the streets of
Beijing or Rio selling discs containing pirated versions
of the Microsoft Office Suite are engaged in commercial
reproduction of object code. Much different is the
activity of incorporating parts of the source code of a
software program into a new program. Source code is the version of the
program in a human-readable language, typically the language
which was originally written before it was converted
or compiled into object code. Copying portions of the source code is
sometimes known as follow-on copying. This behavior includes a
wide range of behavior, from the creation of modestly improved
versions of existing programs, to the creation of
radically new programs that incorporate small
bits of existing programs. Fourth and finally, some
developers– not all– wish to prevent what is sometimes
referred to as “non-literal” copying. This consists of the
creation of new programs that have the same structure, sequence,
or organization as existing programs, but use none of the code
of the existing programs. Suppose, for example, that I created
a program that worked exactly like Photoshop, enabling
me to compete with Adobe, but I wrote my own code from scratch. My conduct would fall
into this fourth category. The reason for differentiating
these four categories is that, as we’ll see often during this
course, both the legal doctrines and the policy issues that
they raise differ considerably. Now let’s turn to the law. The history of efforts to use
law to discourage or penalize the behaviors I just summarized
proceeded roughly as follows. In the 1950s and ’60s, when the
computer industry was just getting off the ground, a few integrated
firms provided– typically industrial– customers both
hardware and associated software. These products typically
were task-specific, and thus were often
customized for each client. The sellers and buyers of software
were usually– though not always– in contractual privity. Under this combination of circumstances,
the existing law of trade secrecy provided reasonably good
protection against competitors. Typically, the software
and hardware firms would provide their customers copies
of the object code of their programs while retaining the source code. US courts ruled that public
distribution of object code did not result in forfeiture
of trade secrecy protection, so long as the source
code was kept secret and was reasonably hard
to reverse engineer. The combination of trade secret
law and the concentrated structure of the software industry made
non-permissive copying rare. Gradually, however, the effectiveness
of trade secrecy protection diminished. Several factors were at work. They included the gradual
improvement of decompilers, which facilitated reverse engineering,
the increased demand from customers for access to source code, and
the fact that, in any event, trade secrecy does not inhibit verbatim
reproduction of object code, which is made public. Some firms responded to
these changing conditions by increasing their reliance
on the law of contracts. They began to demand that
their customers agree to various contractual restrictions
on their ability to reproduce, modify, or redistribute the
programs provided to them. This strategy also worked
reasonably well for awhile, but its effectiveness was
undermined by two circumstances. First, the firms came increasingly to
depend not upon expressed voluntary acceptance of contractual
terms by their customers, but instead upon so-called “shrink
wrap” or “click-through” licenses. The phrase “shrink-wrapped
license” refers to, ostensibly, contractual commitments that were
printed on the outside of the boxes that were sold to customers. A common term provided that, by breaking
the cellophane that enclosed the boxes, the buyer agreed to all
the other provisions. The validity of such commitments
was far from certain. A decades-long struggle to settle this
question was, in the end, inconclusive. If you’re curious about the
details of that struggle, including the efforts
of a group of academics to prevent the modification
of the Uniform Commercial Code that would have resolved the matter
in favor of the software firms, follow the link in the map
associated with the topic Contracts. The second limitation of contracts, from
the standpoint of the software firms, grows out of the peculiar
structure of the law of federalism in the United States. Briefly, contract law is state law,
whereas copyright law is federal law, and under some circumstances, federal
law will trump or preempt state law. Skeptics of contractual limitations
on modifications or redistribution of software sometimes challenge
those limitations on the grounds that they were preempted. Another struggle, this time over the
scope of copyright preemption, ensued. Most of the cases that
were fought over this issue eventually upheld
contractual limitations against preemption challenges,
but the controversy undermined the overall
effectiveness of this approach. By the late 1970s, the structure of the
software industry was changing fast. The increased use of integrated
circuits and microprocessors made the price of
microcomputers drop rapidly. No longer was software
produced and sold primarily by the hardware manufacturers. Instead, separate software firms
began manufacturing and distributing both operating systems and
application programs designed to run on devices
produced by other firms. These changes, combined with increased
dissatisfaction with trade secrecy and contracts– the
reasons I just suggested– prompted some software firms
to seek increased protection from the law of copyright. Initially, copyright law
was not very hospitable. To be sure, as early
as 1964, the register of copyrights in the United
States had expressed a willingness to register copyrights in
software, but several uncertainties in the relevant law and procedural
hurdles limited usage of this option. As of 1977, a total
of only 1,200 programs had been registered, 80% percent
of them by either IBM or Burroughs. In 1974, as part of the long ramp-up to
the ’76 general reform of the copyright statute, Congress created
a commission known as CONTU to consider the extent to which
copyright protection for software should be clarified and expanded. The 1976 act itself recognized
copyright protection for software, but did not settle all issues. CONTU’s 1978 report, which was adopted
and implemented by Congress in 1980, cleaned things up. The net result was that software
developers came to enjoy, in the United States, all
of the entitlements enjoyed by authors of other,
more traditional works. Europe soon followed suit. And finally, copyright
protection for software was mandated by the TRIPS Agreement,
and is, thus, now close to universal. This is not the end
of the story, however. Copyright protection to not proved
to be a panacea, partially confirming the arguments raised by CONTU’s
critics, who thought copyright protection for software was a
bad idea from the beginning. The limitations of copyright
prompted a subset of software firms to press for patent protection, first
in the United States, then in Europe. They met with only mixed success. How and why copyright law
proved less than ideal is a large and important question,
which we’ll take up in another lecture.

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