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author or artist serves to induce release to the
public of the products of his creative genius. 40

Copyright is "intended definitely to grant valuable, enforceable rights to authors ... 'to afford encouragement to the production of literary works of lasting benefit to the world.""41 The purpose is not to reward the author, but the law does so to achieve its ultimate purpose

"to induce release to the public of the products of his creative genius."42 The "immediate effect of the copyright law is that authors receive a "fair return for (their) creative labor"; however, the "ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good."

Congress also interpreted the clause when it enacted the Copyright Act of 1909:

The enactment of copyright legislation by
Congress under the terms of the Constitution is
not based upon any natural right that the author
has in his writings, ... but upon the ground that
the welfare of the public will be served and
progress of science and useful arts will be
promoted by securing to authors for limited
periods the

exclusive rights to their
writings ...

By granting authors exclusive rights, the authors receive the benefit of economic rewards and the public

44

40

United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).

41

Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 36 (1939).

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43

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

44

H.R. REP. No. 2222, 60th Cong., 2d Sess., 7 (1909) (report accompanying the Copyright Act of 1909, the first comprehensive revision of the copyright laws).

receives the benefit of literature, music and other creative works that might not otherwise be created or disseminated. The public also benefits from the limited scope and duration of the rights granted. The free flow of ideas is promoted by the denial of protection for facts and ideas. 46 The granting of exclusive rights to the author "does not preclude others from using the ideas or information revealed by the author's work. "47 While copyright law "ultimately serves the purpose

of enriching the general public through access to creative works, copyright law imposes no obligation upon copyright owners to make their works available. While it is hoped that the potential economic benefits to doing so will induce them, copyright owners are not obligated to provide access to their works -- either during the term of protection or after. Hence, unpublished works never distributed to the public are granted as much (if not more) protection as published works. However, once an author publishes a work, copies of the work must be deposited with the Library of Congress for the benefit of the public.

1148

2. SUBJECT MATTER AND SCOPE OF

PROTECTION

a. ELIGIBILITY FOR PROTECTION

The subject matter eligible for protection under the Copyright Act is set forth in Section 102(a):

Copyright protection subsists ... in original
works of authorship fixed in any tangible medium
of expression, now known or later developed,

45

See discussion of term of protection infra pp. 59-60 and fair use and other limitations on an author's exclusive rights infra pp. 73-100.

46

See discussion of unprotected subject matter infra pp. 32-35.

47

HOUSE REPORT at 56, reprinted in 1976 U.S.C.C.A.N. 5669.

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from which they can be perceived, reproduced,
or otherwise communicated, either directly or
with the aid of a machine or device.

49

From this provision, the courts have derived three basic requirements for copyright protection originality, creativity and fixation. 50

The requirements of originality and creativity are derived from the statutory qualification that copyright protection extends only to "original works of authorship."si To be original, a work merely must be one of independent creation -- i.e., not copied from another. There is no requirement that the work be novel (as in patent law), unique or ingenious. To be creative, there must only be a

49

17 U.S.C. $ 102(a) (1988 & Supp. V 1993). The Copyright Act specifically excludes from protectible subject matter any "idea, procedure, process, system, method of operation, concept, principle or discovery" even if it meets the criteria for protection. See 17 U.S.C. S 102(b) (1988). The Copyright Act also preempts any grant of equivalent rights for works of authorship within the specified subject matter. Section 301 provides:

On and after January 1, 1978, all legal or equitable rights that are
equivalent to any of the exclusive rights within the general scope
of copyright as specified by section 106 in works of authorship
that are fixed in a tangible medium of expression and come within
the subject matter of copyright as specified by sections 102 and
103, whether created before or after that date and whether
published or unpublished, are governed exclusively by this title.
Thereafter, no person is entitled to any such right or equivalent
right in any such work under the common law or statutes of any
State.

17 U.S.C. S 301(a) (1988).

50

Many courts consider creativity to be an element of originality. For purposes of discussion, we examine originality and creativity as separate requirements.

51

See 17 U.S.C. § 102(a) (1988 & Supp. V 1993). The statutory qualification is derived from Congress' limited Constitutional authority to grant copyright protection to "authors" for their "writings." See U.S. CONST., art. I, S 8, cl. 8.

modicum of creativity. The level required is exceedingly low; "even a slight amount will suffice. 152

The final requirement for copyright protection is fixation in a tangible medium of expression. Protection attaches automatically to an eligible work of authorship the moment the work is sufficiently fixed. A work is fixed "when its embodiment in a copy or phonorecord ... is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."54

Congress provided considerable room for technological advances in the area of fixation by noting that the method of fixation in copies or phonorecords may be "now known or later developed. "55 "The Copyright Act divides the possible media for fixation into "copies" and "phonorecords":

"Copies" are material objects, other than
phonorecords, in which a work is fixed by any
method now known or later developed, and from
which the work can be perceived, reproduced, or
otherwise communicated, either directly or with
the aid of a machine or device.si

"Phonorecords" are material objects in which
sounds, other than those accompanying a motion
picture or other audiovisual work, are fixed by
any method now known or later developed, and

52

Feist, supra note 36, at 345 ("vast majority of works make the grade quite easily, as they possess some creative spark").

53

Copyright protection literally begins when, for instance, the ink dries on the paper. There are no prerequisites, such as registration or affixation of a copyright notice, for obtaining or enjoying copyright protection.

54

17 U.S.C. S 101 (1988) (definition of "fixed").

55

See 17 U.S.C. S 102(a) (1988 & Supp. V 1993).

56

17 U.S.C. S 101 (1988) (definition of "copies").

from which the sounds can be perceived,
reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. 57

According to the House Report accompanying the Copyright Act of 1976, Congress intended the terms "copies" and "phonorecords" to "comprise all of the material objects in which copyrightable works are capable of

being fixed."158

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The form of the fixation and the manner, method or medium used are virtually unlimited. A work may be fixed in "words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia"; may be embodied in a physical object in "written, printed, photographic, sculptural, punched, magnetic, or any other stable form"; and may be capable of perception either "directly or by means of any machine or device 'now known or later developed.'

In digital form, a work is generally recorded (fixed) as a sequence of binary digits (zeros and ones) using media specific encoding. This fits within the House Report's list of permissible manners of fixation. Virtually all works also will be fixed in acceptable material objects -- i.e., copies or phonorecords. For instance, floppy disks, compact discs (CDs), CD-ROMs, optical disks, compact discs-interactive (CD-Is), digital tape, and other digital storage devices are all stable forms in which works may be fixed and from which works

may be perceived, reproduced or communicated by means of a machine or device.

57

17 U.S.C. S 101 (1988) (definition of "phonorecords").

58

HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67. This Report generally uses the term "copy" or "copies" to refer to copies and phonorecords except in those instances where the distinction is relevant.

59

HOUSE REPORT at 52, reprinted in 1976 U.S.C.C.A.N. 5665-66.

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61

See, e.g., Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir.

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