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EFFECTIVE DATE OF 1988 AMENDMENT Section 13 of Pub. L. 100-568 provided that:
“(a) EFFECTIVE DATE.—This Act and the amendmen made by this Act (enacting section 116A of this titl amending sections 101, 104, 116, 205, 301, 401 to 40 411, 501, 504, 801, and 804 of this title, and enactir provisions set out as notes under section 101 of th title) take effect on the date on which the Berne Coi vention (as defined in section 101 of title 17, Unite States Code) enters into force with respect to th United States (Mar. 1, 1989). (The Berne Conventio entered into force with respect to the United States o Mar. 1, 1989.)
"(b) EFFECT ON PENDING CASES.-Any cause of actio arising under title 17, United States Code, before th effective date of this Act shall be governed by the pro visions of such title as in effect when the cause action arose.”
SHORT TITLE OF 1988 AMENDMENTS Pub. L. 100-667, title II, $ 201, Nov. 16, 1988, 10 Stat. 3949, provided that: “This title (enacting sectio 119 of this title and sections 612 and 613 of Title 4 Telegraphs, Telephones, and Radiotelegraphs, amend ing sections 111, 501, 801, and 804 of this title and se tion 605 of Title 47, and enacting provisions set out a notes under section 119 of this title) may be cited a the 'Satellite Home Viewer Act of 1988'.” (Sectio ceases to be effective Dec. 31, 1994, see section 207 o Pub. L. 100-667, set out as an Effective and Termina tion Dates note under section 119 of this title.)
Section 1(a) of Pub. L. 100-568 provided that: “Thi Act (enacting section 116A of this title, amending sec tions 101, 104, 116, 205, 301, 401 to 408, 411, 501, 504 801, and 804 of this title, and enacting provisions se out as notes under section 101 of this title) may b cited as the 'Berne Convention Implementation Act o 1988'."
SHORT TITLE OF 1984 AMENDMENT Pub. L. 98-450, § 1, Oct. 4, 1984, 98 Stat. 1727, provid ed that: “This Act (amending sections 109 and 115 o this title and enacting provisions set out as a not under section 109 of this title) may be cited as the 'Record Rental Amendment of 1984'.”
BERNE CONVENTION; CONGRESSIONAL DECLARATIONS Section 2 of Pub. L. 100-568 provided that: “The Congress makes the following declarations:
“(1) The Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, or September 9, 1886, and all acts, protocols, and revi sions thereto (hereafter in this Act (see Short Title of 1988 Amendment note above) referred to as the 'Berne Convention') are not self-executing under the Constitution and laws of the United States.
"(2) The obligations of the United States under the Berne Convention may be performed only pursu ant to appropriate domestic law.
“(3) The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act (Oct. 31, 1988), satisfy the obliga tions of the United States in adhering to the Berne Convention and no further rights or interests shal be recognized or created for that purpose."
A "useful article" is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a "useful article".
The author's "widow" or "widower" is the author's surviving spouse under the law of the author's domicile at the time of his or her death, whether or not the spouse has later remarried.
A "work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person's official duties. A "work made for hire" is
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
A "computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring
about a certain result. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2541; Pub. L. 96-517, § 10(a), Dec. 12, 1980, 94 Stat. 3028; Pub. L. 100-568, 8 4(a)(1), Oct. 31, 1988, 102 Stat. 2854.)
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476 The significant definitions in this section will be mentioned or summarized in connection with the provisions to which they are most relevant.
AMENDMENTS 1988-Pub. L. 100-568, 8 4(a)(1)(B), inserted definitions of terms “The Berne Convention” and “Berne Convention work".
Pub. L. 100-568, 8 4(a)(1)(C), inserted definition of term "country of origin".
Pub. L. 100-568, 8 4(a)(1)(A), in definition of term "Pictorial, graphic, and scuptural works" substituted "diagrams, models, and technical drawings, including architectural plans” for “technical drawings, diagrams, and models",
1980-Pub. L. 96-517 inserted definition of “computer program".
BERNE CONVENTION; CONSTRUCTION Section 3 of Pub. L, 100-568 provided that:
“(a) RELATIONSHIP WITH DOMESTIC LAW.-The provisions of the Berne Convention
“(1) shall be given effect under title 17, as amended by this Act (see Short Title of 1988 Amendment note above), and any other relevant provision of Federal or State law, including the common law; and
"(2) shall not be enforceable in any action brought pursuant to the provisions of the Berne Convention itself.
"(b) CERTAIN RIGHTS NOT AFFECTED.-The provisions of the Berne Convention, the adherence of the United States thereto, and satisfaction of United States obligations thereunder, do not expand or reduce any right of an author of a work, whether claimed under Federal, State, or the common law
“(1) to claim authorship of the work; or “(2) to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the work, that would prejudice the au. thor's honor or reputation." WORKS IN PUBLIC DOMAIN WITHOUT COPYRIGHT
PROTECTION Section 12 of Pub. L. 100-568 provided that: “Title 17, United States Code, as amended by this Act (see Short Title of 1988 Amendment note above), does not provide copyright protection for any work that is in the public domain in the United States."
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 2318, 2319 of title 18.
8 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship 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. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(6) motion pictures and other audiovisual works; and
(7) sound recordings. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2544.)
HISTORICAL AND REVISION NOTES
the Constitution (Const. Art. 1, $ 8, cl. 8), a recurring question has been whether the statutory and the constitutional provisions are coextensive. If so, the courts would be faced with the alternative of holding copyrightable something that Congress clearly did not intend to protect, or of holding constitutionally incapable of copyright something that Congress might one day want to protect. To avoid these equally undesirable results, the courts have indicated that "all the writings of an author" under the present statute is narrower in scope than the "writings" of "authors" referred to in the Constitution. The bill avoids this dilemma by using a different phrase-"original works of authorship"-in characterizing the general subject matter of statutory copyright protection.
The history of copyright law has been one of gradu. al expansion in the types of works accorded protection, and the subject matter affected by this expansion has fallen into two general categories. In the first, scientific discoveries and technological developments have made possible new forms of creative expression that never existed before. In some of these cases the new expressive forms-electronic music, filmstrips, and computer programs, for example-could be regarded as an extension of copyrightable subject matter Congress had already intended to protect, and were thus considered copyrightable from the outset without the need of new legislation. In other cases, such as photographs, sound recordings, and motion pictures, statutory enactment was deemed necessary to give them full recognition as copyrightable works.
Authors are continually finding new ways of expressing themselves, but it is impossible to foresee the forms that these new expressive methods will take. The bill does not intend either to freeze the scope of copyrightable subject matter at the present stage of communications technology or to allow unlimited expansion into areas completely outside the present congressional intent. Section 102 implies neither that that subject matter is unlimited nor that new forms of expression within that general area of subject matter would necessarily be unprotected.
The historic expansion of copyright has also applied to forms of expression which, although in existence for generations or centuries, have only gradually come to be recognized as creative and worthy of protection. The first copyright statute in this country, enacted in 1790, designated only "maps, charts, and books”; major forms of expression such as music, drama, and works of art achieved specific statutory recognition only in later enactments. Although the coverage of the present statute is very broad, and would be broad. ened further by the explicit recognition of all forms of choreography, there are unquestionably other areas of existing subject matter that this bill does not propose to protect but that future Congresses may want to.
Fixation in Tangible Form. As a basic condition of copyright protection, the bill perpetuates the existing requirement that a work be fixed in a "tangible medium of expression,” and adds that this medium may be one "now known or later developed," and that the fixation is sufficient if the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1 (1908) (28 S.Ct. 319, 52 L.Ed. 655), under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed. Under the bill it makes no difference what the form, manner, or medium of fixation may be-whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device "now known or later developed."
HOUSE REPORT NO. 94-1476 Original Works of Authorship. The two fundamental criteria of copyright protection-originality and fixation in tangible form are restated in the first sentence of this cornerstone provision. The phrase "original works or authorship,” which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts under the present copyright statute. This standard does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them.
In using the phrase "original works of authorship," rather than "all the writings of an author" now in sec. tion 4 of the statute (section 4 of former title 17), the committee's purpose is to avoid exhausting the constitutional power of Congress to legislate in this field, and to eliminate the uncertainties arising from the latter phrase. Since the present statutory language is substantially the same as the empowering language of
Under the bill, the concept of fixation is important since it not only determines whether the provisions of the statute apply to a work, but it also represents the dividing line between common law and statutory protection. As will be noted in more detail in connection with section 301, an unfixed work of authorship, such as an improvisation or an unrecorded choreographic work, performance, or broadcast, would continue to be subject to protection under State common law or statute, but would not be eligible for Federal statutory protection under section 102.
The bill seeks to resolve, through the definition of "fixation" in section 101, the status of live broadcasts-sports, news coverage, live performances of music, etc.--that are reaching the public in unfixed form but that are simultaneously being recorded. When a football game is being covered by four televi. sion cameras, with a director guiding the activities of the four cameramen and choosing which of their electronic images are sent out to the public and in what order, there is little doubt that what the cameramen and the director are doing constitutes "authorship." The further question to be considered is whether there has been a fixation. If the images and sounds to be broadcast are first recorded (on & video tape, film, etc.) and then transmitted, the recorded work would be considered & “motion picture" subject to statutory protection against unauthorized reproduction or retransmission of the broadcast. If the program content is transmitted live to the public while being recorded at the same time, the case would be treated the same; the copyright owner would not be forced to rely on common law rather than statutory rights in proceed. ing against an infringing user of the live broadcast.
Thus, assuming it is copyrightable--as a "motion picture" or "sound recording," for example-the content of a live transmission should be regarded as fixed and should be accorded statutory protection if it is being recorded simultaneously with its transmission. On the other hand, the definition of "fixation" would exclude from the concept purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the "memory" of a computer.
Under the first sentence of the definition of "fixed" in section 101, a work would be considered "fixed in a tangible medium of expression” if there has been an authorized embodiment in a copy or phonorecord and if that embodiment "is sufficiently permanent or stable" to permit the work "to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The second sentence makes clear that, in the case of "a work consisting of sounds, images, or both, that are being transmitted," the work is regarded as "fixed” if a fixation is being made at the same time as the transmission.
Under this definition "copies" and "phonorecords” together will comprise all of the material objects in which copyrightable works are capable of being fixed. The definitions of these terms in section 101, together with their usage in section 102 and throughout the bill, reflect a fundamental distinction between the "original work” which is the product of "authorship" and the multitude of material objects in which it can be embodied. Thus, in the sense of the bill, a “book” is not a work of authorship, but is a particular kind of "copy.” Instead, the author may write a "literary work,” which in turn can be embodied in a wide range of "copies” and “phonorecords," including books, periodicals, computer punch cards, microfilm, tape recordings, and so forth. It is possible to have an "original work of authorship" without having a "copy" or "phonorecord" embodying it, and it is also possible to have a "copy" or "phonorecord" embodying something that does not qualify as an "original work of authorship." The two essential elements-original work and tangible object-must merge through fixation in order to produce subject matter copyrightable under the statute.
Categories of Copyrightable Works. The second sentence of section 102 lists seven broad categories which the concept of "works of authorship" is said to “include". The use of the word “include,” as defined in section 101, makes clear that the listing is "illustrative and not limitative," and that the seven categories do not necessarily exhaust the scope of "original works of authorship" that the bill is intended to protect. Rather, the list sets out the general area of copyrightable subject matter, but with sufficient flexibility to free the courts from rigid or outmoded concepts of the scope of particular categories. The items are also overlapping in the sense that a work falling within one class may encompass works coming within some or all of the other categories. In the aggregate, the list covers all classes of works now specified in section 5 of title 17 [section 5 of former title 17); in addition, it specifically enumerates "pantomimes and choreographic works".
Of the seven items listed, four are defined in section 101. The three undefined categories—"musical works," “dramatic works," and "pantomimes and choreographic works"-have fairly settled meanings. There is no need, for example, to specify the copyrightability of electronic or concrete music in the statute since the form of a work would no longer be of any importance, nor is it necessary to specify that “choreographic works" do not include social dance steps and simple routines.
The four items defined in section 101 are "literary works," "pictorial, graphic, and sculptural works," "motion pictures and audiovisual works", and "sound recordings". In each of these cases, definitions are needed not only because the meaning of the term itself is unsettled but also because the distinction between “work" and "material object” requires clarification. The term "literary works" does not connote any criterion of literary merit or qualitative value: it includes catalogs, directories, and similar factual, reference, or instructional works and compilations of data. It also includes computer data bases, and computer programs to the extent that they incorporate author. ship in the programmer's expression of original ideas, as distinguished from the ideas themselves.
Correspondingly, the definition of “pictorial, graphic, and sculptural works" carries with it no implied criterion of artistic taste, aesthetic value, or intrinsic quality. The term is intended to comprise not only "works of art” in the traditional sense but also works of graphic art and illustration, art reproductions, plans and drawings, photographs and reproductions of them, maps, charts, globes, and other cartographic works, works of these kinds intended for use in advertising and commerce, and works of "applied art." There is no intention whatever to narrow the scope of the subject matter now characterized in section 5(k) (section 5(k) of former title 17) as "prints or labels used for articles of merchandise." However, since this terminology suggests the material object in which a work is embodied rather than the work itself, the bill does not mention this category separately.
In accordance with the Supreme Court's decision in Mazer v. Stein, 347 U.S. 201 (1954) (74 S.Ct. 460, 98 L. Ed. 630, rehearing denied 74 S.Ct. 637, 347 U.S. 949, 98 L.Ed. 1096), works of "applied art" encompass all original pictorial, graphic, and sculptural works that are intended to be or have been embodied in useful articles, regardless of factors such as mass production, commercial exploitation, and the potential availability of design patent protection. The scope of exclusive rights in these works is given special treatment in section 113, to be discussed below.
The Committee has added language to the definition of "pictorial, graphic, and sculptural works" in an effort to make clearer the distinction between works of applied art protectable under the bill and industrial designs not subject to copyright protection. The declaration that "pictorial, graphic, and sculptural works" include "works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian as
pects are concerned" is classic language; it is drawn from Copyright Office regulations promulgated in the 1940's and expressly endorsed by the Supreme Court in the Mazer case.
The second part of the amendment states that "the design of a useful article • shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” A "useful article" is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." This part of the amendment is an adaptation of language added to the Copyright Office Regulations in the mid-1950's in an effort to implement the Supreme Court's decision in the Mazer case.
In adopting this amendatory language, the Committee is seeking to draw as clear a line as possible between copyrightable works of applied art and uncopyrighted works of industrial design. A two-dimensional painting, drawing, or graphic work is still capable of being identified as such when it is printed on or applied to utilitarian articles such as textile fabrics, wallpaper, containers, and the like. The same is true when a statue or carving is used to embellish an industrial product or, as in the Mazer case, is incorporated into a product without losing its ability to exist independently as a work of art. On the other hand, although the shape of an industrial product may be aesthetically satisfying and valuable, the Committee's intention is not to offer it copyright protection under the bill. Unless the shape of an automobile, airplane, ladies' dress, food processor, television set, or any other industrial product contains some element that, physical. ly or conceptually, can be identified as separable from the utilitarian aspects of that article, the design would not be copyrighted under the bill. The test of separability and independence from “the utilitarian aspects of the article" does not depend upon the nature of the design-that is, even if the appearance of an article is determined by aesthetic (as opposed to functional) considerations, only elements, if any, which can be identified separately from the useful article as such are copyrightable. And, even if the three-dimensional design contains some such element (for example, a carving on the back of a chair or a floral relief design on silver flatware), copyright protection would extend only to that element, and would not cover the over-all configuration of the utilitarian article as such.
A special situation is presented by architectural works. An architect's plans and drawings would, of course, be protected by copyright, but the extent to which that protection would extend to the structure depicted would depend on the circumstances. Purely nonfunctional or monumental structures would be subject to full copyright protection under the bill, and the same would be true of artistic sculpture or decorative ornamentation or embellishment added to a structure. On the other hand, where the only elements of shape in an architectural design are conceptually inseparable from the utilitarian aspects of the structure, copyright protection for the design would not be avail. able.
The Committee has considered, but chosen to defer, the possibility of protecting the design of typefaces. A "typeface" can be defined as a set of letters, numbers, or other symbolic characters, whose forms are related by repeating design elements consistently applied in a notational system and are intended to be embodied in articles whose intrinsic utilitarian function is for use in composing text or other cognizable combinations of characters. The Committee does not regard the design of typeface, as thus defined, to be a copyrightable "pictorial, graphic, or sculptural work" within the meaning of this bill and the application of the dividing line in section 101.
Enactment of Public Law 92-140 in 1971 (Pub. L. 92–140, Oct. 15, 1971, 85 Stat. 391, which amended sec
tions 1, 5, 19, 20, 26, and 101 of former title 17, and enacted provisions set out as a note under section 1 of former title 17) marked the first recognition in American copyright law of sound recordings as copyrightable works. As defined in section 101, copyrightable "sound recordings" are original works of authorship comprising an aggregate of musical, spoken, or other sounds that have been fixed in tangible form. The copyrightable work comprises the aggregation of sounds and not the tangible medium of fixation. Thus, "sound recordings" as copyrightable subject matter are distinguished from “phonorecords," the latter being physical objects in which sounds are fixed. They are also distinguished from any copyrighted literary, dramatic, or musical works that may be reproduced on a "phonorecord.”
As a class of subject matter, sound recordings are clearly within the scope of the “writings of an author" capable of protection under the Constitution (Const. Art. 1, § 8, cl. 8), and the extension of limited statutory protection to them was too long delayed. Aside from cases in which sounds are fixed by some purely mechanical means without originality of any kind, the copyright protection that would prevent the reproduction and distribution of unauthorized phonorecords of sound recordings is clearly justified.
The copyrightable elements in a sound recording will usually, though not always, involve "authorship" both on the part of the performers whose performance is captured and on the part of the record producer responsible for setting up the recording session, capturing and electronically processing the sounds, and compiling and editing them to make the final sound recording. There may, however, be cases where the record producer's contribution is so minimal that the performance is the only copyrightable element in the work, and there may be cases (for example, recordings of birdcalls, sounds of racing cars, et cetera) where only the record producer's contribution is copyrightable.
Sound tracks of motion pictures, long a nebulous area in American copyright law, are specifically included in the definition of "motion pictures," and excluded in the definition of “sound recordings." To be a "motion picture," as defined, requires three elements: (1) a series of images, (2) the capability of showing the images in certain successive order, and (3) an impression of motion when the images are thus shown. Coupled with the basic requirements of original authorship and fixation in tangible form, this definition encompasses a wide range of cinematographic works embodied in films, tapes, video disks, and other media. However, it would not include: (1) unauthorized fixations of live performances or telecasts, (2) live telecasts that are not fixed simultaneously with their transmission, or (3) filmstrips and slide sets which, although consisting of a series of images intended to be shown in succession, are not capable of conveying an impression of motion.
On the other hand, the bill equates audiovisual materials such as filmstrips, slide sets, and sets of transparencies with “motion pictures" rather than with "pictorial, graphic, and sculptural works." Their sequential showing is closer to a “performance" than to a “display," and the definition of "audiovisual works," which applies also to "motion pictures," embraces works consisting of a series of related images that are by their nature, intended for showing by means of projectors or other devices.
Nature of Copyright. Copyright does not preclude others from using the ideas or information revealed by the author's work. It pertains to the literary, musical, graphic, or artistic form in which the author expressed intellectual concepts. Section 102(b) makes clear that copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Some concern has been expressed lest copyright in computer programs should extend protection to the methodology or processes adopted by the programmer, rather than merely to the "writing" expressing his ideas. Section 102(b) is intended, among other things, to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law.
Section 102(b) in no way enlarges or contracts the scope of copyright protection under the present law. Its purpose is to restate, in the context of the new single Federal system of copyright, that the basic di. chotomy between expression and idea remains un changed.
CROSS REFERENCES Actions and remedies for infringement of copyright, see section 501 et seq. of this title.
Common law rights, see section 301 of this title.
Copyright as distinct from property in object copy. righted, see section 202 of this title.
Copyright not capital asset, see section 1221 of Title 26, Internal Revenue Code.
Duration of copyright, see section 301 et seq. of this title.
Fees, see section 708 of this title. Government works as not copyrightable, see section 105 of this title.
Power of Congress to grant authors exclusive right to their writings, see Const. Art. 1, § 8, cl. 8.
Preemption of other laws that come within subject matter of this section, see section 301 of this title.
Proclamation by President granting foreign authors copyright protection, see section 104 of this title. Regulations, see section 702 of this title. Subject matter of copyrightCompilations and derivative works, see section 103
of this title. National origin, see section 104 of this title. United States Government works, see section 105
of this title. Transfer and bequests of copyright, see section 201 of this title.
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 103, 104, 301 of this title; title 19 section 2242.
"original work of authorship" and falls within one or more of the categories listed in section 102. Read together, the two sections make plain that the criteria of copyrightable subject matter stated in section 102 apply with full force to works that are entirely original and to those containing preexisting material. Section 103(b) is also intended to define, more sharply and clearly than does section 7 of the present law (section 7 of former title 17), the important interrelationship and correlation between protection of preexisting and of "new" material in a particular work. The most important point here is one that is commonly misunderstood today: copyright in a "new version" covers only the material added by the later author, and has no effect one way or the other on the copyright or public domain status of the preexisting material.
Between them the terms "compilations" and "derivative works" which are defined in section 101 comprehend every copyrightable work that employs preexisting material or data of any kind. There is necessarily some overlapping between the two, but they basically represent different concepts. A “compilation" results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright. A "derivative work," on the other hand, requires a process of recasting, transforming, or adapting “one or more preexisting works"; the "preexisting work” must come within the general subject matter of copyright set forth in section 102, regardless of whether it is or was ever copyrighted.
The second part of the sentence that makes up section 103(a) deals with the status of a compilation or derivative work unlawfully employing preexisting copyrighted material. In providing that protection does not extend to "any part of the work in which such material has been used unlawfully," the bill prevents an infringer from benefiting, through copyright protection, from committing an unlawful act, but preserves protection for those parts of the work that do not employ the preexisting work. Thus, an unauthorized translation of a novel could not be copyrighted at all, but the owner of copyright in an anthology of poetry could sue someone who infringed the whole anthology, even though the infringer proves that publication of one of the poems was unauthorized. Under this provision, copyright could be obtained as long as the use of the preexisting work was not "unlawful,” even though the consent of the copyright owner had not been obtained. For instance, the unauthorized reproduction of a work might be “lawful" under the doctrine of fair use or an applicable foreign law, and if so the work incorporating it could be copyrighted.
CROSS REFERENCES Preemption of other laws that come within subject matter of this section, see section 301 of this title.
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 104, 301 of this title; title 19 section 2242.
8 103. Subject matter of copyright: Compilations and
derivative works (a) The subject matter of copyright as speci. fied by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used un lawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. (Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2545.)
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476 Section 103 complements section 102: A compilation or derivative work is copyrightable if it represents an
8 104. Subject matter of copyright: National origin
(a) UNPUBLISHED WORKS.—The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author.
(b) PUBLISHED WORKS.—The works specified by sections 102 and 103, when published, are subject to protection under this title if
(1) on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a for