Sources of Copyright Law

The power to grant copyrights is provided to Congress by Article I, Section 8 of the U.S. Constitution which provides:

Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

U.S. Const., Art. I, Section 8

Until 1978 this power was exercised in favor of published works with States providing a patchwork of common law protection to works falling outside the Federal scheme.

• The Copyright Revision Act of 1976

  Passed in 1978, the Copyright Revision Act of 1976 harmonized several aspects of U.S. copyright law with the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention). Most significantly, the 1976 Act:

  1. Preempted common law copyright protection by providing copyright protection for both published and unpublished works; and
  2. Extended certain "moral" rights (primarilly the right of integrity) to the authors of visual works.

  The 1976 Act set forth most of the current U.S. copyright scheme outlined above. It was further amended in 1998 with the passage of the Digital Millenium Copyright Act (DCMA).

• The Digital Millenium Copyright Act

  The DMCA in turn, harmonized U.S. copyright law with the World Intellectual Property Organization Copyright Treaty (the WIPO Treaty), and added provisions relating to online distribution of infringing materials. Most significantly the DMCA:

  • Created civil and criminal provisions relating to circumvention of copy and copyright management systems; and
  • Created safe-harbor, as well as notice and takedown provisions relating to online distribution of allegedly infringing materials.
  Title 17
• The Berne Convention

  Adopted in 1972, the Berne Convention sets forth the minimum agreed protection to be afforded to the authors of literary and artistic works by the signing parties.

  Most significantly, the Berne Convention:

  • Extends protection to both published and unpublished works; ARTICLE 2
  • Extends equal recognition of local and foreign works; ARTICLE 5
  • Requires recognition of certain moral rights in artistic works, including the rights authorship and integrity; ARTICLE 6bis
  • Sets a minimum exclusive term of the authors life plus 50 years, or 50 years from publication in the case of anonymous works; ARTICLE 7

  Although the Berne Convention is not self-executing, signatories are expected to enact legislation -- as has the U.S. -- in order to give effect to its terms.

• The WIPO Copyright Treaty

  Adopted in 1996, the WIPO Copyright Treaty