The following is a guest post by Brad Greenberg, counsel in the U.S. Copyright Office, Office of Policy and International Affairs.
Copyright law and new technologies have a long history, arguably dating back to the Gutenberg Press in the 15th century—more than 200 years before passage of the matriarch of copyright statutes, Britain’s Statute of Anne. New technologies provide new tools for creative expression and new vehicles for sharing those works. But sometimes they also disrupt existing copyright regimes—as seen with player pianos (late 1800s), radio (1920s and 1930s), cable television (1960s and 1970s), photocopying (1970s), home video cassette recorders (1970s and 1980s), and, of course, digital downloading and streaming technology (today).
Emerging technologies continue to raise novel questions for copyright, particularly with a copyright system built around a law now more than forty years old. Is a poem written by a computer entitled to copyright protection? Does a mass digitization project for displaying snippets of in-copyright books require licenses from each copyright owner? When does copyright’s first sale doctrine apply to digital works?
Answers to such questions were debated at congressional hearings during the House Judiciary Committee’s multiyear review of copyright, from which Chairman Bob Goodlatte (R–Virginia) and Ranking Member John Conyers (D–Michigan) recently released their first policy proposal. In fact, the goal of the review “has been to determine whether the copyright laws are still working in the digital age.”
Since the 1950s, copyright law’s application to emerging technologies has been a theme of many Copyright Office studies and reports, including our most recent reports: Software-Enabled Consumer Products (2016), The Making Available Right in the United States (2016), and Orphan Works and Mass Digitization (2015). The Office also is examining two areas of copyright law where Congress responded to—and also sought to anticipate—technological change related to the growth of digital communications technologies, particularly the internet. The first is the Office’s study on section 512 of Title 17, which provides notice processes for copyright owners to seek removal of infringing material online and a safe harbor from monetary liability for eligible internet service providers who act upon such notices in a timely manner. The second is the Office’s study on section 1201 of Title 17, which prohibits the circumvention of technological protection measures and includes the rulemaking process for exempting certain uses.
Pianola in Mickey Mouse house, Disneyland
A bit of copyright music litigation history gives some shape to the relationship between copyright law and new technologies. In the late 1800s, long before copyright law covered sound recordings, it protected sheet music. Then along came the gramophone and the player piano—machines that played copyrighted musical compositions captured on records and perforated music rolls, respectively. These records and music rolls were manufactured and sold without the copyright owners’ permission or compensation. So, music publishers sued. In 1908, in White-Smith Music Publishing Co. v. Apollo Co., the U.S. Supreme Court held that piano rolls (and, by implication, records) did not infringe the music publishers’ copyrights because the copyright statute did not address what we would call “machine-readable” works, such as piano rolls; it only covered works intelligible to the human eye. A year later, in the Copyright Act of 1909, Congress extended copyright law to all “mechanical reproductions” of copyrighted music, whether made by humans or machines.
Page one of Copyright Act of 1790
Technology’s advance long has pushed copyright’s growth. The first federal copyright statute, the Copyright Act of 1790, protected only against unauthorized copies of “maps, charts, and books.” In the two-and-a-quarter centuries since, copyright expanded to protect, among other expressive works, photographs, visual art, motion pictures, sound recordings, software, and architecture and to provide exclusive rights not just for copies but also derivative works, distribution, public performance, and public display. Both types of works and uses of those works have grown dramatically due to technological change.
From the printing press to the internet, emerging technologies have provided new tools for expanding forms of creative expression and ways to share that expression. At the same time, technologies continue to raise novel questions about how copyright should apply and whether the law should be revised to fully realize the Founders’ goal that copyright “promote the Progress of Science.” Often hard fought at the time, copyrighted works and technological development have a long history of coming out stronger together on the other side.
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