Talk:Copyright law of the United States/Archive 2

Prior to versus Before

To all Wikipedians: Please do not go through every legal article and switch every instance of "prior to" to "before." I understand that in many cases this could make it seem less legalistic, however, occasionally the usage is intentional. In legal writing the term "before" has other meanings than the temporal. For instance, you could say that a particular case was "before the 11th Circuit Court of Appeals." That could mean either 1) the case was on the docket of that court, or 2) that the case pre-dated the establishment of the 11th Circuit.

I'm sure there are other reasons, but that should be enough for now. Prior to is fairly standard usage either way. If you want a Wikipedia devoid of legal language, use Simple English Wikipedia. Don't remove precision from the standard one. —Preceding unsigned comment added by L33th4x0rguy (talk • contribs) 22:39, 21 April 2007 (UTC)

Definition of U.S. copyright

This sentence was removed from the article's intro because it was allegedly "prejoritive" [sic]:

In the United States, copyright is an artificial right of limited duration created to encourage the production of works.

However, it is an objective and accurate definition of U.S. copyright law since 1978. It belongs back in the article. "Artificial right" means that is a statutory right, not a common law right, common law copyright having been abolished in the U.S. by the Copyright Act of 1976. Perhaps that is what the editor misunderstood and found pejorative? As for "of limited duration created to encourage the production of works", that principle, if not the exact wording, comes from the U.S. Constitution. — Walloon (talk) 00:35, 8 December 2007 (UTC)

I wasn't the reverter (on this article: I was on the global Copyright article, because many other countries have a decidedly different view of copyright), but some thoughts.

First, "artificial" has negative connotations, and implies that some other rights have some more "legitimate" basis; and then we're into the whole"natural rights" and "natural law" debate, which is best not opened in this article.

Second, you should be aware that there is some debate about the use of the verb "secure" in the constitutional provision enabling copyright: "To promote the progress of science,... by securing for limited times to authors... the exclusive right to their ... writings..." There are some commentators who are of the view that "securing" in this context implies that the rights preexist both the copyright statute and the Constitution, and Congress is just nailing down the details in the legislation. This is not a position I buy, but it is out there.

I guess that, the issue of "pejorative" aside, I'm not seeing your proposed edit add a whole lot.

-- TJRC (talk) 01:21, 8 December 2007 (UTC)

I did in fact misunderstand the meaning of "artificial" in this context and I didn't mean to step on anyone's toes. It seemed as though someone was trying to make a comment about copyright law that seemed out of place in the second sentence of the article. I realize that wasn't the case and I agree--there should be a reference to the statutory basis of federal copyright law. The question is the precise wording.

With that in mind, the term "artificial right" should remain removed for two reasons. First, the term artificial has a connotation, whether intentional or not, that suggests it is somehow an unreal or unenforceable law. Even to someone familiar with the topic, that is a possible interpretation.

Additionally, the term "artificial right" as a euphemism for statutory right is rare; I am unfamiliar with that usage. The Legal Right article doesn't contain the word artificial at all. Additionally, Blacks Law doesn't have an entry for artificial right. What it does have, under the 'artificial' the entry is "1. Existing only by virtue of or in consideration of the law < artificial presumption>." That would apply to both common law and statutory rights. And in fact, common law copyrights do still exist. The preemption applies to most common law copyrights, but not all. Specifically, 17 U.S.C. § 301(b)(1): "Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to--(1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression." In other words, things outside of the federal copyright scheme (title 17) remain un-preempted. In fact, the ability of the federal government to legislate copyright on things that are not "Writings and Discoveries" is open.

I suggest something similar to this: United States copyright law governs the legally enforceable rights of creative and artistic works in the United States. United States copyright law is a statutorily created right, governed by Title 17 of the United States Code.LH (talk) 21:23, 8 December 2007 (UTC)

1976 Act changes

A recent edit (which for the most part, very helpfully listed some changes made by various US copyright legislation) included a statement that the 1976 Act eliminated renewal option and registration requirement. This isn't quite correct, so I deleted that particular portion of the edit. My change was quickly reverted, so I thought I'd explain here.

Taking renewal first: the 1976 Act provided for a unitary term (i.e., not a first-term + renewal term) for works that were either created 1978 or later (in § 302), or that were created prior to 1978, but not registered or published as of 1/1/1978 (§ 302). Existing copyrighted works (covered in § 304) remained subject to the two-part term, including a requirement to renew.

Renewal for those works was eventually made automatic, but not until the Copyright Renewal Act of 1992 (boy, is that one heck of a stubby article!), 106 Stat. 264. Even there, renewal was still required, although it was automatic without filing.

As to registration: as far back as the 1909 Act, registration was not a requirement for copyright; so it's wrong to say that the 1976 act removed the requirement. Under the 1909 Act, there were two paths to obtaining a US copyright. The most common way was under § 10, publishing the work with a copyright notice. Another, less commonly used way, was under § 12, registering the work. The § 12 route was only available to works that were not reproduced for sale. This made it the appropriate way to obtain copyright for things like one-copy-only statues, which were publicly displayed, but never published (the copyright definition of "publication" meaning distribution to the public).

Now, the 1909 Act did, in § 13, require registration as a condition of bringing suit. But that requirement was not eliminated in the 1976 Act. It's still there, with a few exceptions, in section § 411.

I don't want to get into a revert war, so I'll hang loose for a bit before re-making my edit. -- TJRC (talk) 21:19, 4 February 2008 (UTC)

BTW, I can see where the lede in Copyright Act of 1976 was a little misleading on the renewal issue. I've edited that article accordingly. But nothing in that article supports a position that registration was previously required. TJRC (talk) 21:34, 4 February 2008 (UTC)

The distinction between a "renewal" which doesn't require the registrant to actually renew it, and a single term of the combined length, is one that obfuscates more than it elucidates. Some idiot savant in the employ of Congress might feel a need to write it that way, but I think we can explain the effect more clearly to the Wikipedia reader. The section of the article which points out that registration was not required under the Act rather strongly implies that this was something the Act did. Otherwise it's a pointless reiteration of preexisting law. - JasonAQuest (talk) 22:01, 4 February 2008 (UTC)

Let me try this again:

On renewal: the 1976 Act continued to require renewal for existing copyrights. You seem to be arguing that the 1992 Act eliminated renewal, rather than making it automatic. (I wouldn't agree, for reasons not worth going into here, but that's beside the point of this discussion.) But that's beside the point; regardless of whether the 1992 Act eliminated renewal, it's very clear that the 1976 Act did not. If you had a renewal due in 1978-1991 and didn't make it, you lost your copyright. It is simply objectively incorrect to state that the 1976 Act "eliminated renewal option."

On registration: the prior law, the 1909 Act, did not require registration. If you disagree and believe it did, please explain why. I've explained why it did not, and provided cites to the authoritative source, the 1909 Act itself.

--TJRC (talk) 22:24, 4 February 2008 (UTC)

---

I'm in agreement with TJRC here. The two issues are simple.

1) Text says 1976 Act... "eliminated... registration requirement." This is not true. The registration requirement was not eliminated. The confusion is over the word "eliminated." There is still a registration requirement in order to sue--as there was in 1909. Likewise, there was no requirement to register before suit under the 1909 Act, nor is there now under the 1976 Code. See 2-7 Nimmer on Copyright § 7.16.

2) The text says "[1976 Act]...eliminated renewal option." This is not true. The 1976 Act did not eliminate the need of renewal for some works, nor did the 1992 Act in totality. Renewal is still possible, and costs $75. See 37 CFR 201.3. However, after 1978 (effective date of 1976 act), terms were much longer and not eligible for renewal at all.

This all is a bit silly though. I think we should remove these summaries altogether. Their focus on these minutiae are misleading. They make it seem as though the changes between the acts were limited to the terms and formalities--anyone even barely familiar with copyright law knows this isn't the case. The way the summaries are written right now (especially with the 1909 and 1976 acts) is a bit like saying that the constitution prohibited the forced quartering of soldiers. Like the constitution, the 1976 and 1909 Acts did a lot more than these summaries suggest. I advocate removing them, or making them, especially on the 1976 Act, much more generic. Something like "major overhaul of the Code." Likewise for the DMCA act. In fact, the DMCA didn't merely criminalize infringement (some infringement was criminal before). The DMCA created new forms of infringement and made those criminal too.

LH (talk) 22:54, 7 February 2008 (UTC)

Category change

I don't do much with categories, but I noticed a change by user:Edcolins. It removed the Intellectual Property category (linked to copyright law). I'm unsure how this is a category change improvement. Can someone shed some light on this for me? LH (talk) 23:11, 19 November 2008 (UTC)

Criticism of Duration of Copyright

Look at the chart in "Duration of copyright", if the pace of progress was really increasing (and marketing & distribution improving in leaps and bounds), then shouldn't copyright terms be getting shorter and shorter rather than getting longer and longer? Strange world we live in :). Wouldn't shorter terms do more to "stimulate the creation of as many works ... as possible"? Since you stop making money from your old stuff sooner, and you have more pressure to try to make your new stuff better than your old stuff. —Preceding unsigned comment added by 60.48.227.20 (talk) 17:49, 5 February 2009 (UTC)

Can't some works' copyright still expire before 2019?

The section on Duration of copyright states that "No additional copyrights will expire (thus entering the public domain) until at least 2019 due to changes in the applicable laws." This seems to be derived from adding 95 years to 1924, the date of publication for the oldest works still under copyright.

But my understanding from reading the articles here is that the 95-year term only applies to works for hire; the term for works of personal authorship depend on the lifetime of the author, not the date of publication. Is this the case? Or does a blanket 95-year term apply for all works published before 1976, since their terms previously depended only on publication date?

If the Wikipedia articles on copyright are accurate, the current term for all works of general authorship is 70 years from death of author. This would imply that more works can enter the public domain as the 70th year following authors' deaths are reached? I would expect that works by authors who died in 1939 would enter the public domain at the end of this year (except any published prior to 1923 whose copyright has already expired).

It also seems conceivable that for a work for hire created 120 years ago but published more recently could expire due to the 120-year term measured from time of creation. --Speight (talk) 07:26, 1 September 2009 (UTC)

The life+70 provision applies only to (a) works created 1978 or later; and (b) works created prior to 1978 and first published 1978 or later. The first class obviously won't expire until 2148 at the earliest (no one creating a work prior to 1978 died earlier than 1978). But there is some leeway for works in the second category to go PD prior to 2019. But not many. TJRC (talk) 18:35, 1 September 2009 (UTC)

If the work was created before 1978, but was not published or registered before 2003, and the author died before 1939, then the work would indeed be in the U.S. pubic domain. Every year, that death date moves one year forward; in 2010 the unpublished works of authors who died before 1940 enter the U.S. public domain, etc. Duration of Copyright, U.S. Copyright Office Circular 15a. — Walloon (talk) 22:07, 1 September 2009 (UTC)

Walloon, I know these are just a quibbles, but I would slightly alter your answer:

If the work was created but not copyrighted before 1978, but was not published or registered before 2003, and the author died before 1939, then the work would indeed be in the U.S. pubic domain. Every year, that death date moves one year forward; in 2010 the unpublished works of authors who died before 1940, that had not been published by 2003, enter the U.S. public domain, etc.

For example, suppose a work by an author who died in 1930, which work remained unpublished until 2001. That work will remain under copyright until 2048 (i.e., through 2047); a 70-year term that began January 1, 1978. TJRC (talk) 22:26, 1 September 2009 (UTC)

Thanks for clarifying. In light of these facts, the "Duration of copyright" section of this article is misleading. The sentence "Copyrightable works created before 1978 that had not entered the public domain in 1978 received protection for the 17 U.S.C. § 302 term above with the exception that those copyrights would not expire before 2003." would appear to be mostly false, as it fails to mention that it is only applicable to unpublished works as of the effective date of the act. The Sonny Bono Act article gets this right, where it appears that neither this article nor the Copyright Act of 1976 article cover the very common case of copyright for works published before 1976 (except in the figure). I'll see if I can fix this. --Speight (talk) 06:21, 8 September 2009 (UTC)

History of International Copyright law in the United States

I was thinking of starting an article with such a name, and have a lot of material to make it well-developed. Just wanted to get others thoughts on the matter. If I did do it, it would probably not be for a month or so, as it would be a large undertaking. Cheers! Scapler (talk) 15:32, 7 October 2009 (UTC)

There's a lot of material there. Because there is no International Copyright law in the United States article right now, what if you called it that, and made it a general article (if and until the history section of that swelled). LH (talk) 23:09, 8 October 2009 (UTC)

Copyright status of state laws

This came up on the reference desk, and I got to reading the Wheaton decision. I am no lawyer, but I began wondering about our article: as it is, it quotes at length from Wheaton in support of the position that laws are not copyrighted, saying this was "argued" before the Supreme Court and "accepted". The funny thing is, the quotes are all from the appellants who actually lost the case, not from the opinion of the court. Not that that means they're wrong, but if you read the opinion of the Court, there's very little in it on the subject of whether laws are copyrighted. There is a paragraph at the very end, put there for the express purpose of denying what the appellants tried to claim in the very passage from which those quotes are drawn! (Namely, that reports of Supreme Court decisions, unlike laws, are copyrighted.) So is it just me, or is the article perpetuating a misreading of Wheaton? There seem to be many other decisions that are more directly relevant to the matter.--Rallette (talk) 10:46, 23 November 2009 (UTC)

Such as Howell v. Miller, cited lower in that section? We quote Harlan to say, "no one can obtain the exclusive right to publish the laws of the state in a book prepared by him"; it would seem reasonable to say that such an exclusive right is equivalent to copyright, and that thus no copyright can be held in laws. Nyttend (talk) 15:28, 23 November 2009 (UTC)

Yeah, I was actually just wondering about the relevance of the quotes from the appellants in Wheaton. It seems to me the article gives a misleading picture of what was actually at issue in Wheaton, as it was mostly about whether someone can claim copyright to something in the public domain on grounds of having compiled it for publication. As I read it, the decision only states that Supreme Court decisions are in the public domain and uncopyrightable. The status of state (and other) statutes only comes up explicitly in the appellants' brief. At any rate, isn't it wrong to say that their argument was "accepted" by the Court, when I can find no acknowledgement of it in the Court's opinion? Even if they'd won the case, it wouldn't mean an implicit endorsement of their arguments, and in fact they lost. Well, it's a surprisingly complicated matter, and most cases seem to be about whether private persons can claim copyright to laws and other public documents (the ref desk question that prompted me was about whether the state of Idaho can limit the right to publish its statutes commercially).--Rallette (talk) 09:37, 24 November 2009 (UTC)

Oops, sorry, I forgot it was you who asked it in the first place... My attention span can be long but sometimes it's very narrow.--Rallette (talk) 09:40, 24 November 2009 (UTC)

Grammatical nitpick: creative works don't have rights

The opening statement currently reads: "United States copyright law governs the legally enforceable rights of creative and artistic works under the laws of the United States."

Creative and artistic works don't have rights -- the authors and creators of those works do. Being the timid type, I not going to be so bold as to make the change myself, but I suggest it should probably be reworded. 68.68.35.175 (talk) 01:04, 11 August 2010 (UTC)

Oops, neglected to log in. The above comment was by me. CNJECulver (talk) 01:08, 11 August 2010 (UTC)