CHAPTER TEN Introduction to Copyright: Theory & History
Doctrines and Definitions in Copyright
The sources discuss several foundational doctrines and definitions related to copyright law, tracing their
historical development and societal implications:
• Nature of Copyrighted Material:
o Copyright, by a "remarkable and dramatic choice," does not cover ideas or unoriginal
compilations of fact. Instead, it covers only the original expression of those ideas and
facts.
o Once a book is published, the ideas and facts within it immediately enter the public
domain. For example, if a report details a momentous assassination, its copyright extends
only to the way those facts are expressed, not the facts themselves, the assassin's name, or
the idea that it might lead to conflict.
o This idea/expression dichotomy was not initially obvious but became a powerful legal
framework.
• Copyrighted Works as Non-Rivalrous and Non-Excludable Resources:
o Books, and later music and film, are considered non-rivalrous (one person's use does not
prevent another's) and non-excludable (difficult to prevent unauthorized use) resources,
particularly with technological advancements. The degree of these qualities can change
over time, e.g., typeseting an illicit edition is harder than downloading an e-book.
• Distinction between Physical and Intellectual Property:
o In personal or real property, ownership is tangible and seemingly coherent ("I own that
house").
o In intellectual property, the claim "I own that" immediately prompts the question "what do
you mean?". This concept was initially seen as "ludicrous" in 18th-century Germany, as
ideas, once expressed, are impossible to retrieve or exclusively own like physical property.
o Christian Sigmund Krause, writing in 1783, argued that a published book is a "secret
divulged". He questioned how one could prohibit copying or reprinting when the very
purpose of buying books is to use their ideas, and an author cannot prevent listeners from
transcribing sermons or students from using new propositions. For Krause, true property
must be "exclusively mine" and unconditionally retrievable, which is not possible for ideas.
• The Romantic Vision of Authorship and Originality:
o The modern notion of "authorship" is a relatively recent concept. Medieval scholars valued
existing old books over new creations and saw scribes' work as more important than authors'
originality.
o Authors were historically seen as craftsmen or conduits for divine inspiration, not warranting
special property rights.
o In the 18th century, a "romantic vision of authorship" emerged, minimizing craftsmanship
and internalizing the source of inspiration to "original genius". This made the inspired work
"peculiarly and distinctively the product—and the property—of the writer".
o Originality became the core justification for property rights. This contrasts sharply with
earlier periods where "imitation" was flattery and the concept of plagiarism barely existed.
For romantic theorists, reproducing orthodoxy proved a lack of unique spirit.
o The originality an author adds to "raw materials provided by culture and the common
pool" justifies the property right and helps resolve the conceptual problem of how an
author retains some rights but not others.
o The philosopher Fichte articulated that while the buyer gets the physical book and its ideas,
the author retains the right to the form in which those ideas are expressed, as that form
is unique to the author's spirit.
o Justice Holmes echoed this in American copyright law, stating in Bleistein v. Donaldson
Lithographing Company that a work could be copyrighted because it was the "original
creation of a unique individual spirit," where "Personality always contains something
unique".
• Functions of the Idea/Expression Dichotomy (from the romantic perspective):
1. Provides a conceptual basis for partial, limited property rights, making copyright seem based on
a "formally realizable" distinction.
2. Offers a moral and philosophical justification for granting property rights in works derived from
the public domain (language, culture). By assuming authorship is marked by "originality of spirit," the author is
seen as creating something "entirely new," adding to cultural supply without diminishing the commons.
3. Circumscribes the scope of a labor theory of property. Unlike Locke's broad labor theory, Fichte's
theory bases property on the originality of spirit expressed through words, limiting the right to "workers of the
word and the image".
4. Resolves (or conceals) the tension between public and private interests. By separating "idea"
(given to the public) and "expression" (given to the writer), it appears to mediate the conflict between public
good and private gain.
• Copyright as a Monopoly and a Tax:
o Thomas Babington Macaulay argued that copyright is fundamentally a monopoly and
therefore inherently produces negative effects, making articles "scarce, dear, and bad". He
contended that while copyright is necessary to remunerate authors (and superior to
patronage, which undermines independence), its evils should not last "a day longer than
is necessary" to secure the good.
o He further characterized copyright as a "tax on readers for the purpose of giving a bounty
to writers," which he considered "exceedingly bad" as it burdens "one of the most innocent
and most salutary of human pleasures". He argued that extending the term of copyright
disproportionately increases the tax on the public without adding significant motivation or
"bounty" to authors.
• Public Domain and Access:
o Macaulay warned that extended copyright terms, especially when held by heirs, could lead
to suppression or mutilation of valuable works due to personal or moral objections,
thereby limiting public access (e.g., Richardson's grandson suppressing his grandfather's
novels, Boswell's son suppressing Life of Johnson). He viewed proposed safeguards against
this as "illusory".
o Macaulay predicted that an "intolerable monopoly" (extended copyright) would erode public
sympathy, leading to widespread "piratical" infringement and the general disregard for
copyright law, even for existing wholesome copyrights.
o Victor Hugo, a proponent of "droits d'auteur" (author's rights), strongly asserted that
"literary property is of general utility" and crucial for a writer's independence.
o Hugo, despite being a fierce advocate for author's rights, also stressed the importance of the
public domain. He suggested a system where, after an author's death, books could be
published by anyone for a small fee to direct heirs, thus combining the author's property
right with the "equally incontestable right of the public domain".
o Hugo famously stated that while a book as a physical entity is owned by the author, "as a
thought, it is owned, it belongs—the word is not too extreme—to the human race". He
argued that if a sacrifice were necessary, the author's right should yield to the "public
interest".
o Justice Ginsburg in Golan echoed this sentiment, stating that once a copyright term ends,
works "lapse into the public domain"; anyone then has free access, and no one acquires
new ownership rights.
Digest of Cases
• LeRoy Fibre case:
o Context: This Supreme Court case is mentioned in the discussion of the distinction between
tangible (personal/real) property and intellectual property.
o Holding/Principle: The case held that "the rights of one man in the use of his property
cannot be limited by the wrongs of another".
o Significance: The source uses this case to highlight that even in real property, the
confidence in "I own that" might not always be fully justified, implying that property rights are
not always absolute and can be complex, setting a comparative stage for the even more
complex nature of intellectual property.
• Bleistein v. Donaldson Lithographing Company:
o Context: This is described as a "famous case" concerning the copyrightability of a circus
poster.
o Court/Opinion: The opinion was written by Justice Oliver Wendell Holmes.
o Holding/Reasoning: Holmes argued that the poster could be the subject of an intellectual
property right because it was the "original creation of a unique individual spirit". He
famously stated, "The copy is the personal reaction of an individual upon nature. Personality
always contains something unique. It expresses its singularity even in handwriting, and a
very modest grade of art has in it something irreducible, which is one man’s alone. That
something he may copyright".
o Significance: This case is presented as a prime example of how the concept of "originality"
derived from the romantic vision of authorship is applied to justify copyright, even for
commercial art. It also illustrates the ongoing "tension between the rhetoric of Wordsworth
[romantic authorship] and the reality of suburban corporate capitalism" in intellectual
property discourse.
• ***Golan (Justice Ginsburg's statement)***:
o Context: This refers to a statement made by Justice Ginsburg regarding works entering or
leaving the public domain, specifically in relation to foreign works.
o Issue Addressed: Petitioners argued that Congress impermissibly "revoked their right to
exploit foreign works that 'belonged to them' once the works were in the public domain".
o Ginsburg's Clarification: She clarified that from a copyright lawyer's perspective, this
"vested rights" formulation is "exactly backwards". Rights typically vest at the outset of
copyright protection in the author/rightholder. Once the protection term ends, the
works "simply lapse into the public domain," meaning anyone has free access, and no
one "acquires ownership rights in the once-protected works".
o Significance: This statement underscores the nature of the public domain as a realm of free
access rather than a transfer of ownership, reinforcing that once copyright expires, the works
are freely available for all to use without new property claims.
Part 2 of Chapter 10:
• The Foundational Idea/Expression Dichotomy
o At its core, copyright protects "original" works that are "fixed in any tangible medium of
expression".
o "Original" in copyright does not mean novel or unique in the sense of a new invention.
Instead, it simply requires that the work was independently created by the author and
possesses a "modicum of creativity". For instance, if two people independently write the
exact same love song without copying from each other, both are entitled to copyright
protection.
o Crucially, copyright extends only to creative "expression," and never to "any idea,
procedure, process, system, method of operation, concept, principle, or discovery".
This means that facts and ideas themselves are explicitly excluded from protection.
o Furthermore, if the expression of an idea is so basic or limited that it "merges" with the idea
itself (meaning there's only one or very few ways to express that idea), then that expression is
also not protected. This fundamental distinction aims to prevent monopolization of ideas,
which should remain free for all to use and build upon. This principle was at the heart of the
disagreement between Lord Thring, who believed "ideas are not property," and Mark Twain,
who argued that "every kind of property...is derived from an idea or ideas".
• Elements of Copyright Infringement: Proving a Violation
o To establish copyright infringement, a plaintiff must generally demonstrate two main points:
1) Valid copyright ownership and 2) that the defendant infringed that copyright. The latter
involves showing several sub-elements:
▪ The copied material must be original, creative expression.
▪ There must be sufficient evidence of access by the defendant to the plaintiff's work.
This "access" means the defendant had a reasonable opportunity to copy the work.
It can be shown through widespread dissemination of the plaintiff's work or a
"chain of events" linking the plaintiff and defendant. In some cases, a "striking
similarity" between the works can even create a presumption of access.
▪ There must be substantial similarity between the copyright-protected elements of
the plaintiff's and defendant's works. It is important to remember that only
similarities to the protected elements of the plaintiff's work are relevant; copying
unprotectable material such as ideas, facts, or scènes à faire (standard elements
common to a particular topic or genre) does not constitute infringement. The
determination of "substantial similarity" has no "bright line rule". It can be either
quantitative (a large amount of the plaintiff's work was copied) or qualitative (an
important part of the plaintiff's work was copied). However, "trivial or de minimis
copying" falls below the threshold for infringement. For instances of "wholesale,
direct copying," a full analysis of access and similarity may be unnecessary.
o It is vital to note that copyright operates as a strict liability system; therefore, innocent
intent is not a defense for infringement, although it may serve to limit the remedies
available to the plaintiff.
o A significant defense to infringement is Fair Use, which is explored in greater detail in
copyright law, though it can be a complex issue in streamlined proceedings like those of the
Copyright Claims Board.
• The Public Domain and the Purpose of Copyright
o The public domain is the essential realm into which works "lapse" once their copyright term
ends. In this domain, "anyone has free access to the public domain, but no one, after the
copyright term has expired, acquires ownership rights in the once-protected works".
o The fundamental Constitutional purpose of US copyright law is not primarily to benefit
authors indefinitely, but rather to "promote the progress of science and the useful arts" by
granting authors "exclusive rights for limited times". The "ultimate aim" is to "admit the
people at large, after a short interval, to the full possession and enjoyment of all writings and
inventions without restraint". As articulated by the Supreme Court in Twentieth Century
Music Corp. v. Aiken (1975), "The immediate effect of our copyright law is to secure a fair
return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate
artistic creativity for the general public good".
o This is why copyright law is fundamentally considered "[a]n act for the encouragement of
learning". While authors are given temporary control to incentivize creation, the long-term
goal is to enrich the public domain for future cultural and intellectual growth. Victor Hugo,
from our conversation history, articulated a similar sentiment, stating that while a book as a
physical entity is owned by the author, "as a thought, it is owned, it belongs...to the
human race," implying that the public interest should ultimately prevail [1, Conversation
History].
• Copyright Term Extensions: A History of Expansion and Its Consequences
o Historically, copyright terms were much shorter and conditional.
▪ The Statute of Anne (1710) established a 14-year term, renewable once for another
14 years.
▪ The first US Copyright Act (1790) mirrored this with a 14-year term, renewable for
another 14.
▪ The 1909 Act extended this to a total possible term of 56 years (28 years from
publication, renewable for another 28).
o Major changes occurred with the 1976 Copyright Act, which initially expanded the term to
life plus 50 years for natural authors and 75 years for corporate works.
o The 1998 Sonny Bono Copyright Term Extension Act further extended these terms
significantly to life plus 70 years for natural authors and 95 years from publication for
corporate works. Critically, this extension was retroactively applied to existing works,
which meant that no published works entered the US public domain between 1998 and
2019. This had the effect of "freezing" the public domain for artifacts from 1923 until 2019.
o Economic Incentive of Extensions: Despite their length, the economic evidence suggests
that the incentive effect of prospective term extension is "negligible," and for
retrospective extension, "nonexistent". This is because only a "minuscule percentage" of
works retain commercial value by the time these extended terms apply, making the future
revenue stream an almost non-existent incentive for new creation.
o Costs of Extensions: These extended terms, coupled with the elimination of formalities
(discussed below), have exacerbated the problem of "orphan works". It becomes
"prohibitively difficult" to find rights holders for older, commercially unavailable works
because relevant documentation is often "lost or buried". This leads to "legal gridlock,"
preventing non-owners, preservationists, and digitizers from making culturally important
works available to the public.
• Copyright Formalities: From Requirement to Elimination
o Under the 1909 Act, copyright protection was conditioned upon "formalities". This meant
publication of a work with a copyright notice (e.g., Copyright 2014, John Smith) and
renewal of rights after the initial 28-year term were necessary to maintain protection. Works
published without proper notice, or those whose copyrights were not renewed,
automatically entered the public domain. This created an "evidentiary trail" of ownership for
the public.
o The impact of the renewal requirement was significant: a 1961 study revealed that 85% of
all copyrights (and 93% for books) were not renewed, thereby entering the public domain.
This allowed commercially exhausted works to become freely available for public use.
o Formalities began to be relaxed with the 1976 Act and were largely eliminated on March 1,
1989, when the US joined the Berne Convention. The Berne Convention mandates that
rights "shall not be subject to any formality".
o Current Status: Copyright now automatically attaches to an eligible work the moment it is
fixed in a tangible medium of expression. There is no longer a need for a copyright notice
or renewal. While registration with the Copyright Office is not required for copyright
protection itself, it is necessary to bring an infringement action and confers significant
benefits, such as the ability to claim statutory damages and attorney's fees.
o Consequence of Elimination: The automatic nature of copyright, without formalities,
meant that for the first time, "informal culture"—such as diaries, home movies, and
personal photographs—automatically entered the realm of copyright. These works are
even more likely to become "orphan works," effectively making them "off limits" for
digitization and historical chronicling without extensive effort or reliance on fair use.
• Authorship and Ownership: Beyond the Individual Creator
o While copyrights initially "vest in the 'author'," the individual who created the work is not
always the legal author. For "works made for hire," the corporation or employer is
considered the author. Copyrights can also be owned by "joint authors" and are frequently
transferred throughout their (now very long) lifespan.
• Scope of Exclusive Rights: Expanding Control
o Copyright holders enjoy several exclusive rights, including reproduction, making derivative
works, distribution, public performance, and public display.
o Historically, the scope was much narrower. The 1790 Act only covered "printing, reprinting,
publishing and vending" maps, charts, and books. Music was added in 1831, photographs in
1865, and fine art in 1870. Public performance rights for music only came in 1897. The right
to make derivative works (like translations or adaptations) was largely an opt-in system or
even freely allowed before the 1909 Act, reflecting a policy that favored "follow-on creativity".
Over time, categories expanded to include motion pictures, choreographic works,
architectural works, and computer programs. These exclusive rights are subject to important
limitations and exceptions, such as fair use and first sale.
• Copyright as a "Monopoly" or "Property": Conflicting Philosophies
o Thomas Babington Macaulay, as discussed in our conversation history, famously argued
that copyright is a "monopoly" and a "tax on readers for the purpose of giving a bounty to
writers," arguing it should not last "a day longer than is necessary" to incentivize authors
[Conversation History].
o Mark Twain (Samuel L. Clemens), while acknowledging the constitutional "limit" on
copyright, vehemently argued against this limited term, particularly the 42-year limit
prevalent in his time. He viewed it as an unjust "taking" of an author's property, comparing
it to the government seizing a coal mine or real estate after a period. Twain's core argument
was that all property with "pecuniary value" derives from "ideas," and therefore literary
property should have the same right of perpetuity as any other property. He cynically pointed
out that most books lose commercial value long before extended terms apply, arguing that
the limit only took "bread out of the mouths of the children" of the few successful authors,
without providing any real "profit" to the public. Despite his strong stance for perpetual
copyright, he noted his satisfaction with a "life plus fifty" system as it would benefit his
daughters, reflecting his often "hilariously cynical" view of legislators and copyright law.
• Modern Copyright Legislation: Adapting to the Digital Age
o The Digital Millennium Copyright Act (DMCA) (1998) introduced significant legal
protections for "technological measures" controlling access to copyrighted works and
created "safe harbors" for online service providers.
o The more recent Copyright Alternative in Small-Claims Enforcement Act (CASE Act)
(2020) established the Copyright Claims Board (CCB) within the US Copyright Office. This
administrative tribunal is designed to hear copyright claims of $30,000 or less, with
determinations made by three Copyright Claims Officers. A key feature is the defendant's
ability to opt out within 60 days to proceed in court. While proponents see it as a cheaper
enforcement mechanism for small claims, opponents express concerns about "copyright
trolls" exploiting less savvy defendants and the difficulty of handling complex issues like fair
use in streamlined proceedings.
Digest of Cases
• Golan (Justice Ginsburg's Statement) (2012)
o Context: This Supreme Court case addressed a challenge where petitioners argued that
Congress had "impermissibly revoked their right to exploit foreign works that 'belonged to
them' once the works were in the public domain" by restoring copyright to works that had
previously entered the public domain.
o Principle/Holding: Justice Ginsburg's statement clarifies the nature of public domain rights:
"Rights typically vest at the outset of copyright protection, in an author or rightholder."
Once the copyright term ends, works "simply lapse into the public domain. Anyone has
free access to the public domain, but no one, after the copyright term has expired,
acquires ownership rights in the once-protected works". The Supreme Court's majority in
Golan ruled that Congress could constitutionally remove works from the public domain,
concluding that the public did not have First Amendment rights to use material that had
been in the public domain. Dissenting Justices strongly disagreed, arguing that removing
material from the public domain "abridges a preexisting freedom to speak".
• Supreme Court Ruling on Retroactive Term Extension (2003)
o Context: This ruling addressed a challenge to the 1998 Sonny Bono Copyright Term
Extension Act, which retroactively extended copyright terms for existing works.
o Principle/Holding: The Supreme Court rejected the challenge, holding that the retroactive
extension "did not violate the constitutional requirement that copyrights last for 'limited
Times'". The Court also declined to apply heightened First Amendment scrutiny to
arguments that the extension restricted public speech. This decision affirmed Congress's
broad power to legislate copyright terms, even retroactively.
• Twentieth Century Music Corp. v. Aiken (1975)
o Context: This Supreme Court case is cited to articulate the foundational purpose of US
copyright law.
o Principle/Holding: The Court defined copyright's dual purpose: "The immediate effect of
our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the
ultimate aim is, by this incentive, to stimulate artistic creativity for the general public
good". This emphasizes that authorial incentive is a means to an end—the benefit of the
public.
• LeRoy Fibre Co. v. Chicago, M. & St. P. Ry. Co. (1914) (from conversation history)
o Context: While not directly a copyright case, this Supreme Court decision was discussed in
our conversation history as it touches upon the complex nature of property rights,
particularly how the rights of one property owner might be limited by the actions (or
"wrongs") of another, thus laying groundwork for discussions around intellectual property
[Conversation History].
o Principle/Holding: The Court held that "the rights of one man in the use of his property
cannot be limited by the wrongs of another" [Conversation History]. This was used as an
analogy to illustrate that even physical property rights are not absolute and can be complex.
• Bleistein v. Donaldson Lithographing Company (1903) (from conversation history)
o Context: A "famous case" from our conversation history, it concerned the copyrightability of
a circus poster and is relevant to the concept of "originality" and the "romantic vision of
authorship" [Conversation History]. While the new sources define "original" as merely
independently created with a modicum of creativity, the Bleistein case, through Justice
Oliver Wendell Holmes's opinion, contributed to the understanding that copyright could
protect even commercial works because they were the "original creation of a unique
individual spirit," emphasizing that "Personality always contains something unique"
[Conversation History]. This aligns with the broad principle that works bearing the unique
stamp of an author's creativity are protectable, even if the current definition of "originality" is
a lower bar than a "unique individual spirit."
