Copyright’s Umbrella (Sec. 102)

This is the latest in our series of posts marking the 50th anniversary of the Copyright Act of 1976. To find a list of all the posts in this series, click here.

Chapter one of the Copyright Act lays out the metes and bounds of copyright. Generally speaking, the chapter has four stages. First it defines its terms (in Sec. 101); then it defines the big picture of copyright’s application; then it tells you what rights copyright provides; and finally it tells you what rights copyright doesn’t provide. With section 102, we’re on to the second phase—describing under what conditions copyright provides rights, and to whom. Section 102 provides the big picture, while the next few sections provide some nuance to that picture.

There is a quiet revolution that takes place in Sec. 102. For nearly two centuries, U.S. copyright was only available for a class of work when Congress explicitly chose to provide it. The default was not to provide protection, but Congress could elect to include new, additional classes of “writings.” The first Copyright Act applied only to maps, charts, and books, but Congress had been expanding that list gradually ever since. Musical works, for example, were added in 1831; paintings and drawings in 1870; sound recordings in 1971. 

Section 102 reset the default. Rather than reserving for itself the discretion to add new types of works, Congress drew the largest, most inclusive (and constitutionally permissible) line around creative work and then reserved an opt-out option for itself. Section 102 maps the general contours of what is included, and then of what isn’t covered. Section 102 tells us what is covered by copyright in broad strokes, and then shows us (and courts) how to paint the finer strokes ourselves.

Congress—really for the first time (in copyright at least)—thought ahead. 

Under Sec. 102, the Copyright Act protects works. Specifically, it protects original works of authorship that are fixed in a tangible medium of expression. What are original works of authorship? Here, Congress defines the term through examples—literary works, musical works, dramatic works, pantomimes, choreographic works, pictorial, graphic, and sculptural works, motion pictures, and sound recordings (architectural works were added later). But Congress took pains to emphasize these are only examples. What about works not included in the list of examples? As long as they are original works of authorship, they are included. 

But limiting copyright to original works of authorship implies that some works are not works of authorship, and Section 102 provides some help in identifying what is not covered as well. Section 102 states that copyright does not include any “idea, procedure, process, system, method of operation, concept, principle, or discovery.” And though the statute doesn’t say so explicitly, this list is also likely only illustrative—all of these terms apply to discoveries, rather than creations. Copyright protects expression. The words in the article describing the discovery are covered by copyright, but the discovery itself is not.

The house report that accompanied the bill provides some context for what Congress was thinking. Authors were, as the report notes, always finding new means of expression, and they could not foresee the future. Rather than legislating for the present, they attempted to create a framework that could incorporate not only contemporary works but also the works of the future. And at least in that goal, the Act has fared rather well over its first half century. For example, this 2001 circular from the Copyright Office applies the law to various kinds of computer based works, many of which could not have been anticipated by most of the public in 1976.

In part, this success was thanks to another innovation of section 102. For the first time, Congress recognized the ontological difference between works and manifestations of those works. Every previous copyright act, for example, specified that copyright protected “books.” In the 1976 Act, as illustrated in Sec. 102, Congress recognized that books—physical stacks of pages with printed words that are bound together with glue and thread—were not what needed protection. Rather, there was a “literary work” contained within those pages, and that was what should be protected. For the first time, the Copyright Act understood abstraction.

Congress may not have anticipated the scale of change that was to come, but they likely had at least some idea. At least some members of Congress would have been aware, for example, of the rapid progress then already being made in computer research, even if most of the country was not. The relational database as an idea was already six years old, and supporting rapid progress in information science. The recently published Transmission Control Protocol and the Defense Department’s 10-year-old ARPANET program were foreshadowing modern electronic communication. The stage was already set for the technological explosion of the 1980s and 90s.

Still, 1976 also saw the debut of the first supercomputer—a six-foot tall, five-ton machine whose power we can now easily squeeze into a wrist watch. Section 102 has been amended only once since then (to add architectural works), yet it is as effective at instructing on what does and does not qualify for copyright protection as it was when first enacted.

The Copyright Act often is criticized for being antiquated. That criticism is as old as the Copyright Act itself, and that criticism is often very well justified. But it’s worth taking a moment to admire how well the Act has aged despite the dizzying pace of technological and cultural change since it was enacted.