The Right of Reproduction

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 70

Rights and Their Limitations

Perhaps the most significant provisions of the Copyright Act are to bfound in section 106, which sets forth the exclusive rights of the copyright owner.

Anyone who violates any of those rights is (by virtue of section 501)

"an infringer of the copyright." Section 106 gives the owner of copyrighthe exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords

(2) to prepare derivative works based upon the copyrighted work

(3) to distribute copies or phonorecords of the copyrighted worto the public by sale or other transfer of ownership, or brental, lease, or lending

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

(5) in the case of literary, musical, dramatic, and choreographiworks, pantomimes, and pictorial, graphic, or sculpturaworks, including the individual images of a motion picture oother audiovisual work, to display the copyrighted work publicly.

It should be noted that the copyright owner has the exclusive right noonly to do the listed acts but also to authorize others to do them. Thus, iA owns the copyright in a novel, which is published by B, and B (withouA's consent) authorizes producer C to make a motion picture based upothe novel, when C's film is later released A can bring infringement actions against both B and C. Note also that although a work to be eligiblfor copyright protection must be fixed in tangible form, unauthorizeconduct can infringe even though it does not involve a fixing of the worS by the defendant. Most obviously, for example, a copyrighted song oplay can be infringed by an unauthorized (and "unfixed") public performance in a theater.

The first three listed exclusive rights-reproduction, preparation oderivative works, and public distribution-are applicable to all forms ocopyrightable works listed in section 102(a). The last two listed rightspublic performance and public display-are, by their nature, applicablonly to certain categories of copyrightable works, and those are expresslset forth in section 106(4) and (5). For example, the right of public performance attaches to musical works but not to sound recordings; thameans that an unauthorized public rplain of a recording of a copyrighted song (for example, on a radio broadcast) will constitute an infringement of the song but not of the sound recording, so that the songwriter-author will have legal redress but the record manufacturer anperformer will not.

Finally, all of the exclusive rights in section 106 are subject to the provisions in sections 107 through 119. Those provisions exempt from liability a wide range of reproductions, derivative works, and the like thawould otherwise constitute infringements. These exemption provisionwill be discussed in some detail below (at pp. 88-93).

The Right of Reproduction

The first copyright act, enacted in 1790, forbade unauthorized printing ocopyrighted works. Today, the equivalent right-afforded by sectio106(1)-is the right "to reproduce the copyrighted work in copies ophonorecords." Copies and phonorecords are the tangible forms iwhich reproductions of a work can be made; copies communicate to theye while phonorecords communicate to the ear. More precisely"phonorecords" are defined in section 101 as "material objects in whicsounds... are fixed by any method now known or later developed, anfrom which the sounds can be perceived, reproduced, or otherwiscommunicated, either directly or with the aid of a machine or device."

"Copies" are defined as "material objects, other than phonorecords, iwhich a work is fixed by any method now known or later developedand from which the work can be perceived, reproduced, or otherwiscommunicated, either directly or with the aid of a machine or device."

The owner of copyright in a musical composition has the exclusive righttherefore, to make "copies" in the form of music notations intended fopiano or for orchestra, as well as to make "phonorecords" that can be activated by a...