Copyright Groundwork

• Author: David R. Gerk - John M. Fleming
• Pages: 295-325

P A R T 1

Copyright Groundwork

295

The primary objective of copyright is not to reward the labor of

authors, but ‘[t]o promote the Progress of Science and useful Arts.’

To this end, copyright assures authors the right to their original

expression, but encourages others to build freely upon the ideas

and information conveyed by a work. This result is neither unfair

nor unfortunate. It is the means by which copyright advances the

progress of science and art.

—Justice Sandra Day O’Connor

Feist Publications, Inc. v. Rural Telephone Service Co.

499 US 340, 349 (1991)

I. BACKGROUND AND RATIONALE

At a very high level, copyrights may be considered to be somewhat the

converse to patents. Patents are directed to new and non-obvious inven-

tions and generally are directed to an inventive concept that is reduced to

practice. Protection may be broadly available for a broad concept. For

example, the first person to conceive of a chair, assuming the claims of

the patent are broadly written, could theoretically receive broad cover-

age for any chair regardless of the pattern on the fabric, the shape of the

backrest, or the configuration of the legs. Copyright protects the con-

verse, as the first inventor of a chair could not lay claim to “copyrights”

to all variations, configurations, and designs of chairs that followed the

initial concept of the chair. Rather, copyrights exist to the particular fab-

Part 1

296 Section 4, Part 1

ric pattern on the seat, the ornate carvings on the arm, or the unique

angles and undulations of the legs and armrests. It is the particular ex-

pression of the concept that is deemed of value as intellectual property

and protectable under copyright laws in the United States.

Copyrights and similar rights internationally have evolved based upon

a variety of rationales for providing protection. Many countries, including

the U.S., the United Kingdom, Canada, and Australia, root their copyright

laws on an “incentive theory,” which holds that economic incentive is pro-

vided by a bundle of copyrights. The creators of the works covered by the

copyrights are eligible for protection. When these creators are compen-

sated financially through sales of works covered by copyright and sale of

licenses for copyrighted works, they are further encouraged to continue to

create more works, pushing our development forward. While the copy-

right framework in many countries is based upon an economic incentive,

some jurisdictions also provide for protection of copyrights based upon a

“natural rights” theory in which the creator of a work is believed to be

entitled to certain rights in a work because of having “given life” to the

work. These countries may provide such protections as guarding the works

from destruction, ensuring proper attribution, and maintaining the integ-

rity of the works. For example, in some jurisdictions it may be a viola-

tion of a copyright or a related right to destroy a protected work or to

alter or vary the work in a manner that harms its “good name.”

Article I, Section 8, Clause 8 of the U.S. Constitution is known as

the constitutional source for U.S. copyright laws as well as for U.S.

patent laws, as previously described. In contrast to patents and copy-

rights, trademark law does not find its constitutional basis in Art. I, § 8,

cl. 8. Instead, trademark laws are rooted in Congress’s broad powers

under the Commerce Clause—Article I, Section 8, Clause 3.1 The Com-

merce Clause is described further in the Trademarks & Trade Dress sec-

tions.

“The Congress shall have Power . . . To promote the Progress of

Science and useful Arts, by securing for limited Times to Au-

thors and Inventors the exclusive Right to their respective Writ-

ings and Discoveries.”

U.S. Constitution, Article I, Section 8, clause 8

1. “[The Congress shall have Power] To regulate Commerce with for-

eign Nations, and among the several States, and with the Indian Tribes.” U.S.

CONST. art. I, §8, cl. 3.