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pursuing that goal.

However, the Judiciary has held that this Constitutional qualification is explanatory and not prescriptive; and that a copyrighted work need not specifically promote anything as publicly valuable as science or the useful arts, however those terms might have been defined in the 18th century or are defined in the 20th. At present, the judgment of (U.S.) society is, as expressed in law, that any "original works of authorship fixed in any tangible medium of expression "14 that are accepted for copyright protection are more valuable than the alternatives, whatever they might be.

Furthermore, copyright protection provides society with no comparative value judgment as to the inherent worth of a particular work of authorship; although the availability of copyright may be a Lockean/Madisonian judgment that all such works are qualitatively worth something. Copyright protection is primarily a mechanism designed to correct a flaw or failure in the competitive economic market. As such, it carries no intrinsic predetermined dollar value for any work so protected. It may be, therefore, that "copyright seems to be an inefficient device for simply rewarding authors"15 as Hurt and Schuchman suggest, but specific financial reward for an individual never has been shown to be the function of copyright. Copyright is directly pertinent to the market for works, and certainly pertinent to the rights of authors, but secondary to authors' specific income. Although copyright protection makes possible a certain monetary compensation for all those involved on the producer side of the economic market for works of authorship, remuneration occurs only to the extent of the revenue that can be obtained from the set of costs, prices, and quantities of sale that market conditions permit. As persons of uncommon taste or strongly-held belief can attest, market prices and revenues rarely reflect an individual's sense of basic priorities or fundamental values. The just rewards to the creators of intellectual works of lasting value that advance the state of civilization will not be through the market mechanism, however protected, by copyright or otherwise.


This chapter has provided a background in the foundations of copyright, both ideological and economic. It has considered the question of who gains from copyright protection and the extent, if any, of value judgment in copyright.

The ideological basis for copyright has been shown to be closely related to the concept that each person has the right to control the products of his own creation. This natural right evolved into common law copyright in Great Britain; and the limitations of the protection inherent there was part of the rationale for the Copyright Clause in the Constitution.

Because of the rights of the creator or his assignees, a technical failure exists in the market for intellectual property. The technical

failure, which is the ease of misappropriation through copying or plagiarism, is corrected through a public good, the Government protection of copyright. Note that if there were no inherent right in the copy, there could be no misappropriation, and consequently no implicit market failure. Thus, there would be no reason for Government intervention in the free market.

Copyright is of importance to the publisher as well as the author. This is particularly true in the case of scientific journals. However, the fact of copyright carries with it no comparative value judgment of works so protected. The economic worth of a work is determined in the marketplace where remuneration for the author and/or publisher may (or may not) be obtained. Copyright is not a financial subsidy for authors nor was it ever meant to be. It is a tool through which an author or his assignees may earn an income in the marketplace, if they so choose to use the tool in that manner.




The Constitution was declared in effect on March 4, 1789, having been ratified by the minimum nine States and two others by that time. The first U.S. Congress began regular sessions on April 6, 1789 and the Copyright Act of 1790 was adopted on May 31 of that year. 16 Maps, charts, and books were covered by the first Act. The very early adoption of a Copyright Act may be indicative of the general inclinations of the members of our first Federal government towards the pursuit of knowledge for its practical implications. A less practical, more esthetic class of work, prints, were protected in 1802, although Taubman states that the art of the engraver had been protected in England by 1735.17 Musical compositions embodied as sheet music were added as a protected class in the general copyright revision of 1831. Photographs were added by the Act of 1865 and works of fine arts were enumerated in the second general copyright revision in 1870.

The adaption of the copyright laws to the technologies of the twentieth century (except for computer technology) is detailed in Appendix A, Chapter A.2 of this report. Much of the following part of this chapter is essentially a summary of that material. Special organization and additional information and interpretation have been added to clarify and elucidate certain concepts.


This technology is considered first because of the early consideration by the Supreme Court of a principle that was to have effect on thinking about copyright, even with respect to other technologies, until 1976. The essential question at issue before the Supreme Court in the 1908 case of White-Smith Music Publishing Co. v. Apollo Co. was whether a perforated piano roll constituted a "copy" of sheet music. Now a piano roll, which is simply a cylinder of hard material with holes in it, is a sound recording, as that term is understood today. True, music is only heard when the piano roll is used together with a properly-instrumented piano, but the analogy with a phonograph record or magnetic tape is clear. Neither of those latter recording media contain sounds either; they contain grooves or altered magnetic domains. When a record or tape is used together with properly-instrumented equipment, the intended music is heard; and it cannot be heard from the recording without that equipment or other equipment performing the same function. In effect, the piano used with the piano roll is the playback equipment.

However, sound recordings were not a protected class in 1908 and the Supreme Court decided in White-Smith that the definition of a copy of a musical composition was "a written or printed record of it in intelligible notation." To the Supreme Court in 1908, a piano roll, or for that matter a phonograph record, was not a copy (because it was not

humanly intelligible through the sense of sight) and therefore, in the Court's opinion, was not covered by the copyright statute.

Furthermore, the Court said, in keeping with its narrow construction of the word "copy", that issues of a new technology not specifically covered in the current statute "properly address themselves to the legislative and not to the judicial branch of the Government." However, it was clear from other Court statements that the Court was sympathetic to sound recording protection, despite its contrary ruling on the basis of its interpretation of the law as written.

At the time of the White-Smith ruling, Congress was working on the prospective Copyright Act of 1909, and one issue was whether copyright owners should have a new exclusive right to make recordings of their music. During hearings, Congress was told that one company had contracted with most of the major music publishers for exclusive licenses under the anticipated new law to record all the music controlled by those publishers for many years to come. The result was that Congress, in the 1909 Act, established a compulsory license for musical recording, requiring that once an owner of a musical copyright had permitted his work to be recorded by one company, any other company could record it similarly, upon payment of 2 cents for each reproduction of the composition manufactured. This step prevented the anticipated recording monopoly.

However, this did not mean, necessarily, that recordings of musical compositions were copyrightable. They were not, strictly speaking, even though no one could lawfully manufacture records of copyrighted music without paying the compulsory license fee. Nevertheless, Congress provided for the copyright owner of a dramatic work to have exclusive rights in "any transcription or record thereof" in the 1909 Act, and extended this right this right to nondramatic literary works in 1952. The question whether, under the Constitutional clause on copyright, a recorded performance could be considered the "writing" of an "author" and therefore eligible for copyright protection if Congress so chose to grant it, was apparently disposed of in the affirmative in the case of Capitol Records, Inc. v. Mercury Records Corp., heard by the 2nd Circuit Court in 1955. However, it was not until 1971 that Congress passed a law naming "sound recordings" as a category of copyrightable works, when it became evident that "record piracy" had become rampant and was growing. In the 1976 General Revision, Congress provided for copyright of works "fixed in any tangible medium of expression" and defined "sound record ings" as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects such as disks, tapes, or other phonorecords in which they are embodied" (Section 101). Thus motion picture sound tracks are not covered as "sound recordings," although they are covered elsewhere. This is due to their judicial history and their closer connection with motion pictures as an industry.

3.2.1 Copyrighted Music in Sound Tracks

In 1946, the question arose whether a producer of motion pictures was entitled to a compulsory license for 2 cents per recording for use of a performance of copyrighted music in a sound track of a motion picture. Clearly, in 1909, when the compulsory license for music recordings became law, sound tracks in motion pictures were unknown. Consequently, this was a clear case for judicial interpretation. That the Court decided in the negative on purely economic grounds may be noted from the following quotes from the Court decision on this case, Jerome v. Twentieth Century Fox Film Corp:

"Counsel assert that no more than 500 positive prints of a
film of a musical motion picture are made to supply the de-
mands for exhibition purposes. If Section 1(e) the com-
pulsory license provision of the 1909 Copyright Act 7 ap-
plied to a motion picture use of a musical composition, then
and producer could appropriate a copyrighted musical com-
position for use in a motion picture for a total sum of
about $10.00, at the rate of 2¢ for each positive print...
The result would be destructive of valuable rights of com-
posers and publishers, which the Act was intended to se-
cure and protect."

In the 1976 Act, the view that the compulsory license provision did not apply to sound tracks was stated explicitly. Owners of copyrights in music retained the exclusive rights to record on sound tracks and the compulsory license to record was confined to the making of "phonorecords" which excludes sound tracks as a subset.

3.2.2 Educational and Library Reproduction of Phonorecords

In the 1976 General Revision of Copyright Law, sections 107 and 108 and related pages of House Reports 94-1476 and 94-1733 concern the concepts of fair use and permitted educational and library reproduction of works. The content of this material is discussed in Section 3.6.2 below in the context of photocopying because the problems addressed by that material arose primarily from that cause. However, a review of the documents shows that the solutions applied to photocopies also apply, in general, to phonorecords.


With this technology, as with others, the Federal Courts struggled with the question of whether new technology not specifically provided for by Congress is protected by virtue of extension of concept or is not protected by virtue of strict literal interpretation.

The problem arose in 1903 in the question whether a sequence of photographs telling a story could be protected with the affixation of a single copyright notice or whether each photograph had to have its own notice, as literally intended when Congress protected (individual)

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