Chapter 1 SUBJECT MATTER OF COPYRIGHT A. BASIC REQUIREMENTS OF COPYRIGHT 1. "ORIGINAL WORKS OF AUTHORSHIP" The 1961 Report pointed out that "original creative authorship" is a fundamental criterion of copyright protection under the present law, and recommended that this requirement be specified in the statute. However, when it came to drafting, a great deal of concern was expressed about the dangers of using a word like "creative" in this context. It was argued that the word might lead courts to establish a higher standard of copyrightability than that now existing under the decisions, and that any effort to define "original" could bring about the same undesirable result. In recognition of these arguments, section 102 of the bill specifies the subject matter of copyright simply as "original works of authorship," without further attempt at definition. Our intention here is to maintain the established standards of originality without implying any further requirements of aesthetic value, novelty, or ingenuity. For the reasons advanced in the Report, the bill uses the term "original works of authorship" rather than the phrase "all the writings of an author" now in the statute. While superficially there might seem to be advantages in using the broad language of the Constitution, we believe that they are greatly outweighed by the dangers of exhausting the power of Congress in this field. As has always been true in the past there are particular kinds of subject matter on the fringes of copyright which may be the "writings of an author" in the constitutional sense and which Congress might one day want to protect, but which it does not see fit to protect now. Typography, certain industrial designs, and broadcast emissions are possible examples of this today. The present language of the copyright law has forced the courts to hold that "writings" means one thing in the statute and something else in the Constitution, as an alternative to holding that certain subject matter is entirely beyond the power of Congress to provide for constitutionally. We have no wish to perpetuate this dilemma. 3 2. "FIXED IN ANY TANGIBLE MEDIUM OF EXPRESSION" The Report also recommended that the present implicit requirement of fixation "in some tangible form from which the work can be reproduced" be made explicit in the bill, and that it be stated broadly enough to cover "any new forms or media [of fixation] that may be developed." The language adopted in section 102 to carry out this recommendation 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." Although unfixed works such as improvisations and unrecorded performances would not be subject to statutory protection, they would continue to be protected at common law, a point to be discussed further in connection with section 301. No particular form of fixation is required as long as the work is capable of being "retrieved" (to use a term popular at the moment). For example, a musical composition would be copyrightable if it is written or recorded in words or any kind of visible notation, in Braille, on a phonograph disk, on a film sound track, on magnetic tape, or on punch cards. The manner or medium of fixation is irrelevant as long as it is tangible enough for the work to be perceived or made perceptible to the human senses, directly or with the aid of any machine or device "now known or later developed" (sec. 101). A consistent effort has been made in this section and throughout the bill to distinguish between the "original work" which is the product of the author's creative intellect and which is the real subject of copyright protection and "copies" or "phonorecords" (which are the material objects embodying the work). Failure to draw this distinction under the present law has resulted in a great deal of unnecessary confusion, and has led to results in individual cases that were unpredictable or unfair. To avoid these difficulties the bill, for example, uses the term "literary works" rather than "books" or "periodicals" in referring to one of the classes of copyrightable works; and, as another example, it attempts to draw a careful distinction between "sound recordings" (which are copyrightable works) and "phonorecords" (which are material objects). Taken together, the definitions of "copies" and "phonorecords" in section 101 are intended to cover all of the material objects in which a copyrightable work of any sort can be fixed. B. CATEGORIES OF COPYRIGHTABLE WORKS The list of seven categories of copyrightable works in section 102 of the bill, supplemented by the definitions in section 101, is intended to carry out our 1961 recommendation that the categories "be stated in broad terms to cover all the classes of works now included under section 5 and any others that Congress may wish to add * * *.” According to the bill, “[w]orks of authorship include the following categories: (1) Literary works; (2) Musical works, including any accompanying words; (5) Pictorial, graphic, and sculptural works; (6) Motion pictures; (7) Sound recordings." Under the definition of "including" in section 101, this listing is "illustrative and not limitative." It is intended, without being exhaustive, to cover all classes of works that are copyrightable under the present law, to designate "pantomimes and choreographic works" as a specific category, and to add the new category of "sound recordings." Moreover, while separately listed, the items are overlapping and not mutually exclusive. It is quite conceivable, for example, that within itself a motion picture might encompass copyrightable works falling into all of the other six categories. Definitions of "literary works," "pictorial, graphic, or sculptural works," "motion pictures," and "sound recordings" are included in section 101, primarily in an effort to clarify their scope and to underline the distinction between "works" and "material objects." For example, the definition of "literary works" is intended to avoid any qualitative limitations implied by the word "literary” and is broad enough to cover every possible form of verbal or numerical expression including, for example, computer programs fixed on punchcards, magnetic tape, or any other media. "Pictorial, graphic, or sculptural works" are defined to include "works of fine, graphic, and applied art," thus encompassing the entire range of artistic expression copyrightable under the present law and including works of art embodied in useful articles, designs of nonfunctional architectural works, technical drawings and models, and commercial prints and labels. The definition of "motion pictures" specifically includes sound tracks, and makes clear that for copyright purposes it is irrelevant whether the motion picture is captured on film, video tape, or otherwise. "Sound recordings" are defined as works, other than motion picture sound tracks, "that result from the fixation of a series of musical, spoken, or other sounds." Thus, while one of the major innovations of the bill is to make sound recordings copyrightable as works in themselves, the bill leaves open the question of whether the performers whose performance has been fixed on the recording, the record producer who fixed the sounds, or both of them, may claim authorship of the work and ownership of the copyright. The other terms listed in section 102 are used in the sense in which they are commonly understood, and do not seem to require definition. Since, for example, the form of fixation of copyrightable works would no longer be of any significance, there appeared to be no need to specify the copyrightability of electronic or concrete music. Similarly, since "choreographic works" has a fairly definite meaning that excludes social dance steps and simple routines, and since the phrase recommended by the Report, "prepared for presentation to an audience," might be unnecessarily restrictive, we decided against any definition of the term. Proposals have been advanced for identifying fictional characters as copyrightable works in themselves under the bill. There are undoubtedly some characters that are developed in detail and with such breadth and depth that they emerge as separately identifiable parts of the copyrighted works in which they appear. Others, perhaps the large majority, cannot be said to represent independent creations apart from the particular literary or pictorial works depicting them. As is equally true in the case of detailed presentations of plot, setting, or dramatic action, we believe it would be unnecessary and misleading to specify fictional characters as a separate class of copyrightable works. C. COMPILATIONS AND DERIVATIVE WORKS Section 103 of the bill deals with the important and frequently misunderstood problem of copyright in "compilations and derivative works." As recommended in the Report, it is intended to make clear that the standards of copyrightability set forth in section 102 apply equally to works that are wholly original and those that employ preexisting material. In addition, the provision attempts to sharpen and clarify the language of section 7 of the present law in describing the relationship between protection for "old" and "new" material in a work. The terms "compilations" and "derivative works," which are defined in section 101, are intended to cover all types of copyrightable works that incorporate previously existing material or data. While the terms overlap to some extent, they actually represent different concepts: "compilation" covers the authorship involved in choosing, gathering together, and arranging any kind of material or data, whether copyrightable subject matter or not, while "derivative work" refers to the authorship involved in recasting, transforming, or adapting one or more pre-existing works, whether under copyright or in the public domain. In both cases the author of the "new version" secures protection only for the material he himself has added, without affecting the copyright or public domain status of the pre-existing material. |