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Copyright Law and New Technologies: A Long and Complex Relationship

The following is a guest post by Brad Greenberg, counsel in the U.S. Copyright Office, Office of Policy and International Affairs.

Copyright law and new technologies have a long history, arguably dating back to the Gutenberg Press in the 15th century—more than 200 years before passage of the matriarch of copyright statutes, Britain’s Statute of Anne. New technologies provide new tools for creative expression and new vehicles for sharing those works. But sometimes they also disrupt existing copyright regimes—as seen with player pianos (late 1800s), radio (1920s and 1930s), cable television (1960s and 1970s), photocopying (1970s), home video cassette recorders (1970s and 1980s), and, of course, digital downloading and streaming technology (today).

Emerging technologies continue to raise novel questions for copyright, particularly with a copyright system built around a law now more than forty years old. Is a poem written by a computer entitled to copyright protection? Does a mass digitization project for displaying snippets of in-copyright books require licenses from each copyright owner? When does copyright’s first sale doctrine apply to digital works?

Answers to such questions were debated at congressional hearings during the House Judiciary Committee’s multiyear review of copyright, from which Chairman Bob Goodlatte (R–Virginia) and Ranking Member John Conyers (D–Michigan) recently released their first policy proposal. In fact, the goal of the review “has been to determine whether the copyright laws are still working in the digital age.”

Since the 1950s, copyright law’s application to emerging technologies has been a theme of many Copyright Office studies and reports, including our most recent reports: Software-Enabled Consumer Products (2016), The Making Available Right in the United States (2016), and Orphan Works and Mass Digitization (2015). The Office also is examining two areas of copyright law where Congress responded to—and also sought to anticipate—technological change related to the growth of digital communications technologies, particularly the internet. The first is the Office’s study on section 512 of Title 17, which provides notice processes for copyright owners to seek removal of infringing material online and a safe harbor from monetary liability for eligible internet service providers who act upon such notices in a timely manner. The second is the Office’s study on section 1201 of Title 17, which prohibits the circumvention of technological protection measures and includes the rulemaking process for exempting certain uses.

pianola

Pianola in Mickey Mouse house, Disneyland

A bit of copyright music litigation history gives some shape to the relationship between copyright law and new technologies. In the late 1800s, long before copyright law covered sound recordings, it protected sheet music. Then along came the gramophone and the player piano—machines that played copyrighted musical compositions captured on records and perforated music rolls, respectively. These records and music rolls were manufactured and sold without the copyright owners’ permission or compensation. So, music publishers sued. In 1908, in White-Smith Music Publishing Co. v. Apollo Co., the U.S. Supreme Court held that piano rolls (and, by implication, records) did not infringe the music publishers’ copyrights because the copyright statute did not address what we would call “machine-readable” works, such as piano rolls; it only covered works intelligible to the human eye. A year later, in the Copyright Act of 1909, Congress extended copyright law to all “mechanical reproductions” of copyrighted music, whether made by humans or machines.

Copyright Act of 1790

Page one of Copyright Act of 1790

Technology’s advance long has pushed copyright’s growth. The first federal copyright statute, the Copyright Act of 1790, protected only against unauthorized copies of “maps, charts, and books.” In the two-and-a-quarter centuries since, copyright expanded to protect, among other expressive works, photographs, visual art, motion pictures, sound recordings, software, and architecture and to provide exclusive rights not just for copies but also derivative works, distribution, public performance, and public display. Both types of works and uses of those works have grown dramatically due to technological change.

From the printing press to the internet, emerging technologies have provided new tools for expanding forms of creative expression and ways to share that expression. At the same time, technologies continue to raise novel questions about how copyright should apply and whether the law should be revised to fully realize the Founders’ goal that copyright “promote the Progress of Science.” Often hard fought at the time, copyrighted works and technological development have a long history of coming out stronger together on the other side.
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8 Comments

  1. johanna deneroff
    May 24, 2017 at 1:43 pm

    Hi, I have tons of content that I publish. If I release a copyright of mine on Youtube or through my website, what is preventing anyone from all over the world to steal my very original work. Should i just release snippets of songs and videos . thanks jd

  2. DJ DAB
    May 24, 2017 at 1:49 pm

    Awesome article. Knowledge gained is knowledge earned. This article gave me researchable material to further my knowledge.

  3. George Thuronyi
    May 24, 2017 at 2:52 pm

    Thanks for your question. While we can’t give specific legal advice on your particular situation, I suggest that you read Copyright Basics, an informational circular that provides some information on what copyright protects, who can claim copyright, and how.

  4. Mark Petersen-Perez
    May 24, 2017 at 9:40 pm

    Insiteful artical. I would like to see more information published on Digital Millennial Copyright Act. What is troublesome is that social media sites such as Godaddy and Twitter will and can shut your site down without the benefit of due process of law on a copyright complaint.

    As you know, the complainant is required to file a cease and desist order in federal court. This action should come first before a site is taken down. I beleive the copyright office has done little if nothing at all to prevent bogus copyright claims and to hold parties accountable for such claims…. At the very least, insist that the offending website with alleged copyrighted material be given the opportunity to dispute all such claims in a court of law wiith the appropriate ruling. Not just arbitrarily taking down your site as it is today.

  5. George Thuronyi
    May 25, 2017 at 9:04 am

    Thanks for your comment. We’ll certainly consider a blog on this topic. Meanwhile, you may be interested in reading about our Section 512 study in which we’re evaluating the impact and effectiveness of the safe harbor provisions.

  6. Gary Garu
    May 30, 2017 at 8:15 pm

    Thank you for your very informative article and interesting links.
    Can you please answer a few questions:
    I’m sometimes asked to create a group 6 to 12 short (30 seconds to 2 minutes) instrumental works for advertisers. They usually pick 1 or 2 that they like and license their use. It’s very expensive to register a copyright for each one of these short tunes. If I create a “compilation” of, say 12 tunes, and pay one registration fee for the compilation, how would I go about licensing just 1 or 2 of those tunes while still protecting the other 10 or 11? Should I give the compilation a name, e.g., “My First Compilation,” and then give each tune a separate name or number so that I can selectively license them only “My First Compilation, Song Seven” or are they entitled to use ALL the songs in the compilation because they’re all covered by the same copyright registration? What if they want the EXCLUSIVE rights to song seven? How does that effect my ability to license the other songs to other parties? Thank you!

  7. Mark Petersen-Perez
    June 1, 2017 at 6:07 pm

    The Safe Harbor rule provides protection to ISP from unknownly allowing a websites from publishing alleged copyrighted material and thats a good step in the right direction.

    However, safe harbor provides zero protection from unwanted unsubstuated copyright claims impacting website hosted by ISP (Internet Service Providers) Safe Harbor should mean just that non-discrimitory protection. I believe the US copyright division is fully aware of this practice and is woefully negligent in not providing equal protection our constitution afford all of us….

  8. George Thuronyi
    June 6, 2017 at 11:04 am

    As a general rule, a registration covers an individual work, and an applicant should prepare a separate application, filing fee, and deposit for each work that is submitted for registration. However, there are some exceptions to this rule, including:
    · The option for registering a number of works as an unpublished collection.

    · The option for registering a number of works that were published in a single unit of publication

    The first bullet point above is the “unpublished collection” option. A registration issued under this option covers each work that is submitted for registration. It may also cover the compilation authorship (if any) involved in selecting the works and assembling them into a collective whole, provided that the applicant expressly claims that authorship in the application. When no selection, coordination, or arrangement is claimed, the Office considers each work to be individually registered for purposes of statutory damages.

    The second bullet point above is the “unit of publication” option. A registration issued under this option covers each work in the unit that is owned by the copyright claimant.

    A unit of publication is different from the unpublished collection option in that the works in the unit cannot be aggregated simply for the purpose of registration, but rather must have been first distributed to the public in the packaged unit. Moreover, a unit of publication is not a compilation of works, but rather a package of distinct and separate copies or phonorecords that are distributed to the public as a bundled unit. A unit may, however, contain a compilation or collective work, such as a CD of sound recordings packaged with cover art and liner notes, etc.

    In each case above, protection covers each individual. When registering under one of these options, the applicant has the opportunity to include both the title of collection or unit (i.e., an album title) as well as title for each individual work in the collection or unit. This would ensure that the individual titles for each work would be searchable in our catalog. Creating a title for each work, even works that are short, is generally helpful to both the creator and to the public, because it provides a specific a identifier to the work making it distinguishable from other tracks on the same CD.

    The Copyright Office does not interpret contractual agreements between parties, and we are prohibited by regulations from offering specific legal advice on the rights of persons, whether in connection with particular uses of copyrighted works, cases of alleged foreign or domestic copyright infringement, contracts between authors and publishers, or other matters of a similar nature. Therefore, we cannot instruct individuals on how to word contracts to clarify that only a certain title, rather than all the works in a copyright registration, be licensed. However, the copyright law does not inherently tie together a copyright registration to a licensing contract. It is up to the parties involved in the contract to stipulate the details of the contract.

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