Copyright Protection in General

Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

The subject matter eligible for protection under the Copyright Act is as follows:

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.

Three Basic Requirements for Copyright Protection

From the above provision, the courts have derived three basic requirements for copyright protection — originality, creativity and fixation.

Originality

The requirements of originality and creativity are both derived from the statutory qualification that copyright protection extends only to original works of authorship. To be original, a work must be one of independent creation, which means that it must not be copied from another. There is no requirement that the work be novel, unique, or ingenious.

Creativity

Only be a modicum of creativity is required.

Fixation

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. 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.”

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.

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.
Form of Fixation

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.

Transmissions

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. 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. A simultaneous 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.

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