Digital Law Online: Rights

The copyright owner gets what is often termed a “bundle of rights,” including the right to control reproduction of the copyrighted work that we normally associate with copyright. But it is important to understand that there are rights in addition to reproduction that are given the copyright owner. And these rights can be separated out and granted to different people as the copyright owner sees fit.

II.H.1. Reproduction

Section 106 states the six exclusive rights of a copyright owner. The first is “to reproduce the copyrighted work in copies or phonorecords.” The difference between “copies” and “phonorecords” is primarily historical. The reproduction does not have to be exact, but in the case of a sound recording, it must be an actual copy. A sound-alike imitation of a sound recording is not an infringement of the copyright in the sound recording, although it likely infringes the separate copyright in the music. It just has to be substantially similar to the copyrighted work. Nor do you have to be looking at the original work when you make the copy. In a 1983 case, ABKCO Music v. Harrisongs Music, {FN60: 722 F.2d 988, 221 USPQ 490 (2d Cir., 1983)} the Beatles’ George Harrison was found to have copied the song “He’s So Fine” when he wrote “My Sweet Lord.” In the infringement suit, it was shown that he had heard “He’s So Fine” many years before, and that the tune of “My Sweet Lord” was substantially similar.

The drafters of the Copyright Act of 1976 discussed the reproduction right:

Read together with the relevant definitions in section 101, the right “to reproduce the copyrighted work in copies or phonorecords” means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated in a fixed form from which it can be “perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” As under the present law, a copyrighted work would be infringed by reproducing it in whole or in any substantial part, and by duplicating it exactly or by imitation or simulation. Wide departures or variations from the copyrighted work would still be an infringement as long as the author’s “expression” rather than merely the author’s “ideas” are taken. An exception to this general principle, applicable to the reproduction of copyrighted sound recordings, is specified in section 114.

“Reproduction” under clause (1) of section 106 is to be distinguished from “display” under clause (5). For a work to be “reproduced,” its fixation in tangible form must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Thus, the showing of images on a screen or tube would not be a violation of clause (1), although it might come within the scope of clause (5). {FN61: H.R. Rep. No. 94-1476 at 61-62}

There are a variety of exceptions to the reproduction right, including a number of special privileges for libraries contained in Section 108. We will look at the reproduction right in more detail when we discuss software copyrights and Internet copyrights.

II.H.2. Derivative Works

The second exclusive right listed in Section 106 is “to prepare derivative works based upon the copyrighted work.” As defined in Section 101:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.” {FN62: 17 U.S.C. §101}

The right to control the preparation of derivative works is a broadening of the adaptation right in the Copyright Act of 1909, which specified particular adaptations for different types of works (“To translate the copyrighted work into other languages or dialects, . . . if it be a literary work”). However, it is sometimes convenient to talk about the right to control the preparation of derivative works as the “adaptation right,” much like we talk about the “reproduction right,” the “distribution right,” the “performance right,” and the “display right” as shorthand for the other exclusive rights. It also reminds us that we are taking an existing work and modifying it in some way to produce a new copyrightable work, rather than just making a reproduction of an existing work. As the drafters commented:

The exclusive right to prepare derivative works, specified separately in clause (2) of section 106, overlaps the exclusive right of reproduction to some extent. It is broader than that right, however, in the sense that reproduction requires fixation in copies or phonorecords, whereas the preparation of a derivative work, such as a ballet, pantomime, or improvised performance, may be an infringement even though nothing is ever fixed in tangible form.

To be an infringement the “derivative work” must be “based upon the copyrighted work,” and the definition in section 101 refers to “a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Thus, to constitute a violation of section 106(2), the infringing work must incorporate a portion of the copyrighted work in some form; for example, a detailed commentary on a work or a programmatic musical composition inspired by a novel would not normally constitute infringements under this clause. {FN63: H.R. Rep. No. 94-1476 at 62}

II.H.3. Public Distribution and First Sale

The third exclusive right is “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” It is infringed even if the infringer did not have to reproduce the work in order to make the distribution. But the distribution right is limited in many instances by Section 109, which codifies what is called the “first-sale doctrine” – that copyright owners receive their just reward when they first sell a copyrighted work, and they should not receive an additional benefit when that purchaser disposes of the work in some way. As Section 109 says:

the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. {FN64: 17 U.S.C. §109}

The drafters provided some examples:

Thus, for example, the outright sale of an authorized copy of a book frees it from any copyright control over its resale price or other conditions of its future disposition. A library that has acquired ownership of a copy is entitled to lend it under any conditions it chooses to impose. This does not mean that conditions on future disposition of copies or phonorecords, imposed by a contract between their buyer and seller, would be unenforceable between the parties as a breach of contract, but it does mean that they could not be enforced by an action for infringement of copyright. Under section 202 however, the owner of the physical copy or phonorecord cannot reproduce or perform the copyrighted work publicly without the copyright owner's consent.

To come within the scope of section 109(a), a copy or phonorecord must have been “lawfully made under this title,” though not necessarily with the copyright owner’s authorization. For example, any resale of an illegally “pirated” phonorecord would be an infringement, . . . {FN65: H.R. Rep. No. 94-1476 at 79}

There are two significant exceptions to the first-sale doctrine given in Section 109. You may not rent either a sound recording or a computer program unless that computer program is part of a machine that is being rented or the computer program is to be used with a video game console. There is no similar prohibition against renting movies on videotape or videodisc.

It is possible to infringe one or more of these exclusive rights by a single act, as the drafters noted:

The first three clauses of section 106, which cover all rights under a copyright except those of performance and display, extend to every kind of copyrighted work. The exclusive rights encompassed by these clauses, though closely related, are independent; they can generally be characterized as rights of copying, recording, adaptation, and publishing. A single act of infringement may violate all of these rights at once, as where a publisher reproduces, adapts, and sells copies of a person’s copyrighted work as part of a publishing venture. Infringement takes place when any one of the rights is violated: where, for example, a printer reproduces copies without selling them or a retailer sells copies without having anything to do with their reproduction. The references to “copies or phonorecords,” although in the plural, are intended here and throughout the bill to include the singular. {FN66: H.R. Rep. No. 94-1476 at 61}

II.H.4. Public Performance or Display

The last three exclusive rights in Section 106 have to do with the public performance or display of certain types of works:

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. {FN67: 17 U.S.C. §106}

Section 101 provides a number of important definitions:

To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

To perform or display a work “publicly” means?

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. {FN68: 17 U.S.C. §101}

There are a variety of special exceptions to the public display and performance rights detailed in Sections 109-121. {FN69: 17 U.S.C. §§109-121} And, if the use has few or no economic consequences on the market for the work, fair use under Section 107 {FN70: 17 U.S.C. §107} may permit a public performance or display.

II.H.5. Rights In Different Types of Works

It is important to note that the copyright laws treat different types of works differently, and there is a series of special exceptions that may apply to one type of work, or use of a work, and not another. The copyright laws are a series of compromises, some general, some very specific, between the broad rights of the copyright owners and the public’s use of the work. The fact that something may be allowed for one type of work in a particular situation doesn’t mean that it is allowed for other types of works, or in other situations. There are few general rules in copyright law.

Another way of looking at the exclusive rights of a copyright owner is to consider the exclusive rights granted by the Copyright Act for each of the types of copyrighted works:

· For literary works, musical works, dramatic works, pantomimes and choreographic works: reproduction, adaptation, distribution, public performance, and public display.

· For pictorial, graphic, and sculptural works, including individual images of a motion picture or other audiovisual work: reproduction, derivative works, and public display.

· For motion pictures and other audiovisual works: reproduction, derivative works, distribution, and public performance.

· For sound recordings: reproduction, derivative works, distribution, and public performance by digital audio transmission.

· For architectural works: reproduction, derivative works, and distribution.

II.H.6. Assignments and Licensing

The copyright owner has a “bundle of rights” that can be assigned or licensed as desired. An assignment occurs when all the rights are transferred to another person, much like the sale of a house. A license is like a lease, under which the licensor retains ownership of the copyright but gives certain rights to the licensee. When a license does not permit any further licensing in a particular field of use or geographic area, it is called an exclusive license for that field of use or geographic area. An exclusive license can also be for all the rights under the copyright. But an exclusive license does not mean that it is the only license, just that there will be no more licenses in the area of exclusivity. Any licenses granted before the exclusive license remain valid, but no licenses can be granted after the exclusive license.

The owner of the copyright can license or assign any or all of these rights to others, such as licensing a book publisher for a novel, permitting a playwright to adapt the novel for a play, and licensing the individual performances of the play (in cooperation with the playwright, who owns the copyright in the portions of the play that are a derivative work of the novel).

Next section: Fair Use