Nature and Scope of the Right Secured for Copyright
The leading case on the nature of the rights that Congress is authorized to “secure” under the Copyright and Patent Clause is Wheaton v. Peters.1550 Wheaton was the official reporter for the Supreme Court from 1816 to 1827, and Peters was his successor in that role. Wheaton charged Peters with having infringed his copyright in the twelve volumes of “Wheaton’s Reports” by reprinting material from Wheaton’s first volume in “a volume called ‘Condensed Reports of Cases in the Supreme Court of the United States’ ”;1551 Wheaton based his claim on both common law and a 1790 act of Congress. On the statutory claim, the Court remanded to the trial court for a determination of whether Wheaton had complied with all the requirements of the act.1552 On the common law claim, the Court held for Peters, finding that, under common law, publication divests an author of copyright protection.1553 Wheaton argued that the Constitution should be held to protect his common law copyright, because “the word secure . . . clearly indicates an intention, not to originate a right, but to protect one already in existence.”1554 The Court found, however, that “the word secure, as used in the constitution, could not mean the protection of an acknowledged legal right,” but was used “in reference to a future right.”1555 Thus, the exclusive right that the Constitution authorizes Congress to “secure” to authors and inventors owes its existence solely to acts of Congress that secure it, from which it follows that the rights granted by a patent or copyright are subject to such qualifications and limitations as Congress sees fit to impose. The Court’s “reluctance to expand [copyright] protection without explicit legislative guidance” controlled its decision in Sony Corp. v. Universal City Studios,1556 which held that the manufacture and sale of video tape (or cassette) recorders for home use do not constitute “contributory” infringement of the copyright in television programs. Copyright protection, the Court reiterated, is “wholly statutory,” and courts should be “circumspect” in extending protections to new technology. The Court refused to hold that contributory infringement could occur simply through the supplying of the devices with which someone else could infringe, especially in view of the fact that VCRs are capable of substantial noninfringing “fair use,” e.g., time-shifting of television viewing.
Congress was within its powers in giving to authors the exclusive right to dramatize any of their works. Even as applied to pantomime dramatization by means of silent motion pictures, the act was sustained against the objection that it extended the copyright to ideas rather than to the words in which they were clothed.1557 But the copyright of the description of an art in a book was held not to lay a foundation for an exclusive claim to the art itself. The latter can be protected, if at all, only by letters patent.1558 Because copyright is a species of property distinct from the ownership of the equipment used in making copies of the matter copyrighted, the sale of a copperplate under execution did not pass any right to print and publish the map which the copperplate was designed to produce.1559 A patent right may, however, be subjected, by bill in equity, to payment of a judgment debt of the patentee.1560
- 33 U.S. (8 Pet.) 591 (1834).
- 33 U.S. (8 Pet.) at 595.
- 33 U.S. (8 Pet.) at 657–58. The Court noted that the same principle applies to “an individual who has invented a most useful and valuable machine. . . . [I]t has never been pretended that the latter could hold, by the common law, any property in his invention, after he shall have sold it publicly.” Id.
- 33 U.S. (8 Pet.) at 667.
- 33 U.S. (8 Pet.) at 661; Holmes v. Hurst, 174 U.S. 82 (1899). The doctrine of common-law copyright was long statutorily preserved for unpublished works, but the 1976 revision of the federal copyright law abrogated the distinction between published and unpublished works, substituting a single federal system for that existing since the first copyright law in 1790. 17 U.S.C. § 301.
- 33 U.S. (8 Pet.) at 661.
- 464 U.S. 417, 431 (1984). Cf. Metro-Goldwin-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (active encouragement of infringement by distribution of software for sharing of copyrighted music and video files can constitute infringement).
- Kalem Co. v. Harper Bros., 222 U.S. 55 (1911). For other problems arising because of technological and electronic advancement, see, e.g., Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968); Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984).
- Baker v. Selden, 101 U.S. 99, 105 (1880).
- Stevens v. Gladding, 58 U.S. (17 How.) 447 (1855).
- Ager v. Murray, 105 U.S. 126 (1882).