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National Information Infrastructure5
The Report of the Working Group on Intellectual Property Rights8
Bruce A. Lehman11
Assistant Secretary of Commerce and12
Commissioner of Patents and Trademarks13
Information Infrastructure Task Force22
Ronald H. Brown24
Secretary of Commerce25
2. Subject Matter and Scope of Protection3233
The subject matter eligible for protection under the Copyright Act is set forth in Section 102(a):34
Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.35
From this provision, the courts have derived three basic requirements for copyright protection -- originality, creativity and fixation.36
The requirements of originality and creativity are derived from the statutory qualification that copyright protection extends only to "original works of authorship." To be original, a work merely must be one of independent creation -- i.e., not copied from another. There is no requirement that the work be novel (as in patent law), unique or ingenious. To be creative, there must only be a modicum of creativity. The level required is exceedingly low; "even a slight amount will suffice."37
The final requirement for copyright protection is fixation in a tangible medium of expression. Protection attaches automatically to an eligible work of authorship the moment the work is sufficiently fixed. A work is fixed "when its embodiment in a copy or phonorecord . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."38
Congress provided considerable room for technological advances in the area of fixation by noting that the method of fixation in copies or phonorecords may be "now known or later developed." The Copyright Act divides the possible media for fixation into "copies" and "phonorecords":39
"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.40
"Phonorecords" are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.41
According to the House Report accompanying the Copyright Act of 1976, Congress intended the terms "copies" and "phonorecords" to "comprise all of the material objects in which copyrightable works are capable of being fixed."42
The form of the fixation and the manner, method or medium used are virtually unlimited. A work may be fixed in "words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia"; may be embodied in a physical object in "written, printed, photographic, sculptural, punched, magnetic, or any other stable form"; and may be capable of perception either "directly or by means of any machine or device 'now known or later developed.'"43
In digital form, a work is generally recorded (fixed) as a sequence of binary digits (zeros and ones) using media specific encoding. This fits within the House Report's list of permissible manners of fixation. Virtually all works also will be fixed in acceptable material objects -- i.e., copies or phonorecords. For instance, floppy disks, compact discs (CDs), CD-ROMs, optical disks, compact discs-interactive (CD-Is), digital tape, and other digital storage devices are all stable forms in which works may be fixed and from which works may be perceived, reproduced or communicated by means of a machine or device.44
The question of whether interactive works are fixed (given the user's ability to constantly alter the sequence of the "action") has been resolved by the courts in the context of video games and should not present a new issue in the context of the NII. Such works are generally considered sufficiently fixed to qualify for protection. The sufficiency of the fixation of works transmitted via the NII, however, where no copy or phonorecord has been made prior to the transmission, may not be so clear.45
A transmission, in and of itself, is not a fixation. While a transmission may result in a fixation, a work is not fixed by virtue of the transmission alone. Therefore, "live" transmissions via the NII will not meet the fixation requirement, and will be unprotected by the Copyright Act, unless the work is being fixed at the same time as it is being transmitted. The Copyright Act provides that a work "consisting of sounds, images, or both, that are being transmitted" meets the fixation requirement "if a fixation of the work is being made simultaneously with its transmission." To obtain protection for a work under this "simultaneous fixation" provision, the simultaneous fixation of the transmitted work must itself qualify as a sufficient fixation.46
A simultaneous fixation (or any other fixation) meets the requirements if its embodiment in a copy or phonorecord is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Works are not sufficiently fixed if they are "purely evanescent or transient" in nature, "such as those projected briefly on a screen, shown electronically on a television or cathode ray tube, or captured momentarily in the 'memory' of a computer." Electronic network transmissions from one computer to another, such as e-mail, may only reside on each computer in RAM (random access memory), but that has been found to be sufficient fixation.4748
Historically, the concept of publication has been a major underpinning of copyright law. Under the dual system of protection which existed until the 1976 Copyright Act took effect, unpublished works were generally protected under state law. Published works, on the other hand, were protected under Federal copyright law. On the effective date of the 1976 Act, Federal copyright protection became available for unpublished as well as published works. The concept of publication thus lost its "all-embracing importance" as the threshold to Federal statutory protection.49
However, while the importance of publication has been reduced through amendment to the law (e.g., granting Federal protection to unpublished works and removing the notice requirement for published works), the status of a work as either published or unpublished still has significance under the Copyright Act. For example:50
• only works that are published in the United States are subject to mandatory deposit in the Library of Congress;51
• deposit requirements for registration with the Copyright Office differ depending on whether a work is published or unpublished;52
• the scope of the fair use defense may be narrower for unpublished works;53
• unpublished works are eligible for protection without regard to the nationality or domicile of the author;54
• published works must bear a copyright notice if published before March 1, 1989; and55
• certain limitations on the exclusive rights of a copyright owner are applicable only to published works.56
The Copyright Act provides a definition of "publication" to draw the line between published and unpublished works:57
"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.58
The definition uses the language of Section 106 describing the exclusive right of distribution, and was intended to make clear that "any form of dissemination in which a material object does not change hands -- performances or displays on television, for example -- is not a publication no matter how many people are exposed to the work." It also makes clear that the distribution must be "to the public." In general, the definition continues principles that had evolved through case law under previous copyright laws, including the doctrine of limited publication. The doctrine was developed by courts to save works from losing copyright protection when copies of the work were only distributed to a restricted number of people and for a restricted purpose without a copyright notice. Those works would not be considered distributed to the public (i.e., published) and, therefore, not subject to the notice requirement. Although the notice requirement has been eliminated, and thus the most critical justification for the doctrine, the few cases dealing with publication since 1989 suggest that courts will continue to apply the doctrine of limited publication.5960
Certain works and subject matter are expressly excluded from protection under the Copyright Act, regardless of their originality, creativity and fixation. Titles, names, short phrases, and slogans generally do not enjoy copyright protection under the Copyright Act. Other material ineligible for copyright protection includes the utilitarian elements of industrial designs; familiar symbols or designs; simple geometrical shapes; mere variations of typographic ornamentation, lettering or coloring; and common works considered public property, such as standard calendars, height and weight charts, and tape measures and rulers.61
Copyright protection also does not extend to any "idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied" in such work even if it meets the criteria for protection. Thus, although a magazine article on how to tune a car engine is protected by copyright, that protection extends only to the expression of the ideas, facts and procedures in the article, not the ideas, facts and procedures themselves, no matter how creative or original they may be. Anyone may "use" the ideas, facts and procedures in the article to tune an engine -- or to write another article on the same subject. What may not be taken is the expression used by the original author to describe or explain those ideas, facts and procedures.62
Copyright does not prevent subsequent users from copying from a prior author's work those constituent elements that are not original -- for example . . . facts or materials in the public domain -- as long as such use does not unfairly appropriate the author's original contributions.63
This idea/expression dichotomy "assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work." Although it "may seem unfair that much of the fruit of the [author's] labor may be used by others without compensation," it is "a constitutional requirement" -- the "means by which copyright advances the progress of science and art."64
As a matter of law, copyright protection generally is not extended under the Copyright Act to works of the U.S. Government. Therefore, nearly all works of the U.S. Government -- including this Report -- may be reproduced, distributed, adapted, publicly performed and publicly displayed without infringement liability in the United States under its copyright laws. While the Copyright Act leaves most works created by the U.S. Government unprotected under U.S. copyright laws, Congress did not intend for the section to have any effect on the protection of U.S. government works abroad.65
 17 U.S.C. § 102(a) (1988 & Supp. V 1993). The Copyright Act specifically excludes from protectible subject matter any "idea, procedure, process, system, method of operation, concept, principle or discovery" even if it meets the criteria for protection. See 17 U.S.C. § 102(b) (1988). The Copyright Act also preempts any grant of equivalent rights for works of authorship within the specified subject matter. Section 301 provides:
On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
17 U.S.C. § 301(a) (1988).
 Many courts consider creativity to be an element of originality. For purposes of discussion, we examine originality and creativity as separate requirements.
 See 17 U.S.C. § 102(a) (1988 & Supp. V 1993). The statutory qualification is derived from Congress' limited Constitutional authority to grant copyright protection to "authors" for their "writings." See U.S. Const., art. I, § 8, cl. 8.
 Feist, supra note 36, at 345 ("vast majority of works make the grade quite easily, as they possess some creative spark").
 Copyright protection literally begins when, for instance, the ink dries on the paper. There are no prerequisites, such as registration or affixation of a copyright notice, for obtaining or enjoying copyright protection.
 17 U.S.C. § 101 (1988) (definition of "fixed").
 See 17 U.S.C. § 102(a) (1988 & Supp. V 1993).
 17 U.S.C. § 101 (1988) (definition of "copies").
 17 U.S.C. § 101 (1988) (definition of "phonorecords").
 House Report at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67. This Report generally uses the term "copy" or "copies" to refer to copies and phonorecords except in those instances where the distinction is relevant.
 House Report at 52, reprinted in 1976 U.S.C.C.A.N. 5665-66.
 See id.
 See, e.g., Stern Electronics, Inc. v. Kaufman, 669 F.2d 852, 855 (2d Cir. 1982) (putting work in "memory devices" of a computer "satisf[ies] the statutory requirement of a 'copy' in which the work is 'fixed'").
 See, e.g., Atari Games Corp. v. Oman, 888 F.2d 878 (D.C. Cir. 1989).
 Unfixed broadcasts are not within the subject matter of Federal copyright law. Therefore, protection of such works is not preempted and may be provided by state statutory or common law. See 17 U.S.C. § 301 (1988 & Supp. V 1993).
 See 17 U.S.C. § 101 (1988) (definition of "fixed"); see also Baltimore Orioles, Inc. v. Major League Baseball Players Assoc., 805 F.2d 663, 668 (7th Cir. 1986) (telecasts that are videotaped at the same time that they are broadcast are fixed in tangible form), cert. denied, 480 U.S. 941 (1987); National Football League v. McBee & Bruno's, Inc., 792 F.2d 726, 731-32 (8th Cir. 1986) ("the legislative history [of the Copyright Act] demonstrates a clear intent on the part of Congress to resolve, through the definition of 'fixation' . . ., the status of live broadcasts, using -- coincidentally but not insignificantly -- the example of a live football game"). It is understood that the "fixation" must be made or authorized by the author.
 17 U.S.C. § 101 (1988) (definition of "fixed").
 House Report at 53, reprinted in 1976 U.S.C.C.A.N. 5666-67.
 See Advanced Computer Services of Michigan Inc. v. MAI Systems Corp., 845 F. Supp. 356, 363 (E.D. Va. 1994) (conclusion that program stored only in RAM is sufficiently fixed is confirmed, not refuted, by argument that it "disappears from RAM the instant the computer is turned off"; if power remains on (and the work remains in RAM) for only seconds or fractions of a second, "the resulting RAM representation of the program arguably would be too ephemeral to be considered 'fixed'"); Triad Systems Corp. v. Southeastern Express Co., 1994 U.S. Dist. LEXIS 5390, at *15-19 (N.D. Cal. March 18, 1994) (“[C]opyright law is not so much concerned with the temporal ‘duration’ of a copy as it is with what that copy does, and what it is capable of doing, while it exists. ‘Transitory duration’ is a relative term that must be interpreted and applied in context.”).
 See Wheaton v. Peters, 33 U.S. (1 Peters) 591, 662-63 (1834).
 See 17 U.S.C. § 104 (1988 & Supp. V 1993). Prior to 1978, certain unpublished works, particularly dramatic works and musical compositions, could obtain Federal copyright protection through registration with the Copyright Office. Since 1978, all otherwise eligible unpublished works are protected under Federal law. See 17 U.S.C. § 104(a) (1988 & Supp. V 1993).
 House Report at 129, reprinted in 1976 U.S.C.C.A.N. 5745.
 17 U.S.C. § 407 (1988). "[T]he owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of publication -- (1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with any printed or other visually perceptible material published with such phonorecords." 17 U.S.C. § 407(a) (1988). The deposit requirements are not conditions of copyright protection, but failure to deposit copies of a published work may subject the copyright owner to significant fines. See 17 U.S.C. § 407(a), (d) (1988).
 See 17 U.S.C. § 408(b) (1988) ("the material deposited for registration shall include -- (1) in the case of an unpublished work, one complete copy or phonorecord; (2) in the case of a published work, two complete copies or phonorecords of the best edition; (3) in the case of a work first published outside the United States, one complete copy or phonorecord as so published; (4) in the case of a contribution to a collective work, one complete copy or phonorecord of the best edition of the collective work").
 The first factor of the fair use analysis -- the nature of the copyrighted work -- generally weighs against a finding of fair use if the work is unpublished. See Harper & Row, supra note 34. In 1992, Congress was prompted to amend Section 107 by the near determinative weight courts were giving to the unpublished nature of a work. See Act of October 24, 1992, Pub. L. 102-492, 1992 U.S.C.C.A.N. (106 Stat.) 3145 (adding to the fair use provisions, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.").
 17 U.S.C. § 104(a) (1988 & Supp. V 1993); House Report at 58, reprinted in 1976 U.S.C.C.A.N. 5671 (Section 104(a) "imposes no qualification of nationality and domicile with respect to unpublished works"); see also 17 U.S.C. § 104(b) (1988 & Supp. V 1993) (national origin requirements for published works).
 17 U.S.C. § 405 (1988 & Supp. V 1993). For such works, failure to include a copyright notice risks total loss of copyright protection. See id. Works published after March 1, 1989 (the effective date of the Berne Implementation Act) may (but are not required to) bear a copyright notice identifying the year of publication and the name of the copyright owner. See 17 U.S.C. § 401 (1988 & Supp. V 1993).
 See generally 17 U.S.C. §§ 107 - 120 (1988 & Supp. V 1993). See, e.g., 17 U.S.C. § 118 (1988 & Supp. V 1993) (compulsory license is available for the use of certain published works in connection with noncommercial broadcasting).
 17 U.S.C. § 101 (1988) (definition of "publication").
 See House Report at 138, reprinted in 1976 U.S.C.C.A.N. 5754. See also discussion of transmissions and the "distribution" of copies infra pp. 67-69, 217-20.
 See, e.g., Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), supplemented, reh'g denied, 818 F.2d 252, cert. denied, 484 U.S. 890 (1987) (copyrighted letters did not lose unpublished status by placement in library); WPOW, Inc. v. MRLJ Enterprises, 584 F. Supp. 132 (D.D.C. 1984) (filing of work with federal agency did not constitute publication).
 See 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 4.04 (1994) (hereinafter Nimmer on Copyright). In a couple of aspects, the concept of publication was broadened to include the authorization of offers to distribute copies in a commercial setting and the distribution to certain middlemen, such as retailers, motion picture exhibitors and television stations. See Paramount Pictures Corp. v. Rubinowitz, 217 U.S.P.Q. 48, 50 (E.D.N.Y. 1981) (discussing evolution of definition of publication); National Broadcasting Co., Inc. v. Sonneborn, 630 F. Supp. 524, 532-33 (D. Conn. 1985).
 See 1 Nimmer on Copyright § 4.13[B]; Kunycia v. Melville Realty Co. Inc., 755 F. Supp. 566, 574 (S.D.N.Y. 1990).
 See White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952). Before the notice requirement was eliminated, the Copyright Act generally provided for the invalidation of the copyright in a work if copies of the work were distributed to the public, under the authority of the copyright owner, without a copyright notice. In virtually all instances where limited publication was applied, the distribution was noncommercial in nature.
 See Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446, 1451-54 (9th Cir. 1991) (distribution of personalized Oscar statuettes to select group of distinguished artists constituted limited publication); Lish v. Harper's Magazine Found., 807 F. Supp. 1090, 1102 (S.D.N.Y. 1992) (letter distributed to members of class remained unpublished).
 See 37 C.F.R. § 202.1(a) (1994); see also, e.g., Takeall v. PepsiCo Inc., 29 U.S.P.Q.2d 1913, 1918 (4th Cir. 1993) (unpublished) (holding phrase "You Got the Right One, Uh-Huh" is not copyrightable and, thus, was not infringed by commercial using phrase "You Got the Right One Baby, Uh-Huh"). While short phrases may not be copyrightable standing alone, they may be protected as part of a larger, copyrighted work. See, e.g., Dawn Assocs. v. Links, 203 U.S.P.Q. 831, 835 (N.D. Ill. 1978) (holding phrase "When there is no room in hell . . . the dead will walk the earth" to be an integral part of a copyrighted advertisement, and defendant's unauthorized use of it demonstrated likelihood of success on the merits of infringement suit); Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 183-85 (S.D.N.Y. 1991) (finding lyric "alone again" to be protected as part of a copyrighted work and infringed by defendant rap artist's "sampling"). Short phrases may also be eligible for trademark protection if used to identify goods or services.
 In Mazer v. Stein, the Supreme Court held that works of art which are incorporated into the design of useful articles, but which can stand by themselves as art works separate from the useful articles, are copyrightable. See 347 U.S. 201, 214-17 (1954). See also 17 U.S.C. § 101 (defining "useful article" as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information); 17 U.S.C. § 101 (in the definition of "pictorial, graphic, and sculptural works" noting that "the design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article"). The House Report indicates that the required separability may be physical or conceptual. See House Report at 55, reprinted in 1976 U.S.C.C.A.N. 5668; see also Kieselstein-Cord v. Accessories By Pearl, Inc., 632 F.2d 989, 993 (2d Cir. 1980).
 17 U.S.C. § 102(b) (1988); see Feist, supra note 36, at 359 ("facts contained in existing works may be freely copied"); Harper & Row, supra note 34, at 547 ("no author may copyright facts or ideas").
 The ideas are not protected; the expression is. Baker v. Seldon, 101 U.S. 99, 103 (1879); Beal v. Paramount Pictures Corp., 20 F.3d 454, 458-59 (11th Cir.), cert. denied, 115 S. Ct. 675 (1994); see also Harper & Row, supra note 34, at 547-48 ("copyright is limited to those aspects of the work -- termed 'expression' -- that display the stamp of the author's originality"). The line between idea and expression is not easy to draw. The distinction is not that one is fixed and the other is not -- they are both fixed in the copyrighted work of authorship. At some point, the idea becomes detailed enough to constitute expression. Judge Learned Hand explained:
Upon any work . . . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the [work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his "ideas," to which, apart from their expression, his property is never extended.
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
 Harper & Row, supra note 34, at 548.
 Feist, supra note 36, at 349-50 (citing Harper & Row, supra note 34, at 556-57).
 Feist, supra note 36, at 349-50.
 17 U.S.C. § 105 (1988). There are limited exceptions to this noncopyrightability provision. For instance, the Secretary of Commerce is authorized to secure copyright on behalf of the United States "in all or any part of any standard reference data which he prepares or makes available" under the Standard Reference Data Program. See 15 U.S.C. § 290(e) (1988). Works of the U.S. Postal Service, such as designs on postage stamps, are also copyrightable by the Postal Service. See House Report at 60, reprinted in 1976 U.S.C.C.A.N. 5674 ("the Postal Service could . . . use the copyright law to prevent the reproduction of postage stamp designs for private or commercial non-postal services"). Copyright interests transferred to the U.S. Government by assignment, bequest or otherwise may be held and enforced by it. See 17 U.S.C. § 105 (1988).
 A work of the U.S. Government is a work "prepared by an officer or employee of the United States Government as part of that person's official duties." 17 U.S.C. § 101 (definition of "work of the United States Government"). Although the wording of this definition is not identical to that of a "work made for hire," the concepts "are intended to be construed in the same way." House Report at 58, reprinted in 1976 U.S.C.C.A.N. 5672. See discussion of works made for hire infra notes 134-36 and accompanying text.
 See House Report at 59, reprinted in 1976 U.S.C.C.A.N. 5672.
September 21, 2014
Professor of Law
Villanova University School of Law
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