SUB CATEGORIES OF IP

The Copyright Act is a piece of federal legislation passed by Congress in 1976. Prior to 1976, the last major piece of copyright legislation was passed in 1909, and in passing the 1976 act Congress sought to update the legislation and align the federal copyright law to comport with modern technologies, as well as recognize the realities of the many industries with which copyright law is intimately associated.

The Copyright Act is broken into several sections, which deal with the many major issues in copyright law. These include the definitions of the many terms in the Copyright Act found in 17 U.S.C. 101, the “bundle of rights” found in 17 U.S.C. 106, and many more provisions relating to duration, infringement, licensing, and fair use. Each of these aspects of the copyright law has been litigated in depth, and as a result one major thing to understand about the Copyright Act is that it is far from definitive; the case law fleshing out the many provisions of the Copyright Act is integral to understanding how its provisions operate and function in the real world. One of the most important examples of this is the test developed by U.S. courts for finding copyright infringement. Federal courts employ a two-part test that first inquires into whether the putative infringer in fact copied the work in question, and then looks at whether the work allegedly infringed and the infringing work are “substantially similar.” This “substantial similarity” test is a fuzzy standard that is employed differently by courts in different ways depending upon the type of copyright at issue, and the facts of the case. Furthermore, different federal circuits employ different tests; as a result, the outcome of the substantial similarity test in New York federal court may not be the same as the outcome in California federal court. Finally, as technology changes, and content is subject to copyright protection in new forms and mediums, judge-made doctrine is subject to change to conform with these new developments.

The Copyright Act also has other provisions that are noteworthy, including the first-sale provision, which states that copyright rights do not extend beyond the first-sale of a work. In other words, when a book is sold at your local Barnes & Noble, a percentage of the purchase price is remitted to the copyright owner. However, after that sale has taken place, if the purchaser seeks to re-sell that work on the open market, the copyright owner cannot assert a right to a percentage of that second sale, and this is because of the first-sale provision found in the Copyright Act at 17 U.S.C. 109. While the issue is relatively clear-cut when it comes to things like books in print, the issue gets fuzzier when it comes to digital properties, and there has been much discussion surrounding the issue of whether the first-sale doctrine applies, and how it applies, to digital properties sold, for example, through the iTunes store.

Title 17, where the Copyright Act is codified, has been amended in more recent years by a number of federal laws, including laws that have extended the duration of pre-existing copyrights, and laws that deal with the hosting of content on the sites of major companies like Google, YouTube, and Facebook.