by Jeremiah Clifton
A basic understanding of copyright, and specifically U.S. copyright, is necessary in order to understand the intentions and impacts of DRM. In general copyright “refers to the main act which, in respect of literary and artistic creations, may be made only by the author or with his authorization. That act is the making of copies of the work.”1
Copyright is a subset of intellectual property rights. Intellectual property includes industrial property (patents, trademarks, etc.), which is not covered under copyright.2 Even though some of the situations dealing with DRM involve intellectual property in general and industrial property specifically, the emphasis should remain on copyright. A separation is important in order to keep the focus on digital media. In the United States there is separation of copyright and industrial property in the various laws that determine intellectual property rights; however, in the U.S. Constitution the framers chose to tackle the need for copyright and industrial property rights in the same breath.
U.S. Constitution
The Constitution is the starting point for U.S. intellectual property law, including copyright. The U.S. Constitution states that Congress holds the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”3 It is clear that Congress has the authority to secure intellectual property rights; however, the purpose and limits of the clause are just as clear: “To promote the Progress of Science and useful Arts,” as well as stating that exclusive right protection is to be a time-limited protection.4 Upon this base and other stipulations in the U.S. Constitution, the entirety of copyright law resides, but this is by no means where copyright and the protection of copyright end.
Title 17 U.S.C.
Using the power granted by the U.S. Constitution, Congress has shaped copyright throughout the years. The laws and amendments to copyright are codified in Title 17 of the U.S. Code. The exclusive rights granted copyright owners in Title 17 are the right to reproduce the work, make derivatives of the work, publish and distribute the work, publicly perform the work, and publicly display the work.5
These exclusive rights are limited in various ways, including fair use.6 There are limits on what a person can copyright. Copyright protection covers “original works of authorship fixed in any tangible medium of expression,” allowing
literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works
to be considered “original works of authorship.”7 Although this is a representative rather than an all-inclusive list, the law is clearer as to what copyright cannot protect:
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.8
Copyright belongs to the original author or authors of the work unless transferred or presupposed by a “work made for hire.”9 And the ownership of the tangible object on which the work is first fixed does not in and of itself dictate copyright.10
  1. World Intellectual Property Organization (WIPO). Understanding Copyright and Related Rights (WIPO Pub. No. 909(E)). Text in PDF: WIPO Website Available: Accessed: November 30, 2008.
  2. Id.
  3. U.S. Const. art. I, § 8, cl. 8
  4. Id. Even though the Constitution states that copyright protection is time-limited, note that Congress has extended the limit several times throughout the years. Today the limit stands at the life of the author and 70 years after the author's death (17 U.S.C. § 302 (2006)).
  5. 17 U.S.C. § 106 (2006)
  6. see 17 U.S.C. §§ 107-122 (2006) for details
  7. 17 U.S.C. § 102 (a) (2006)
  8. 17 U.S.C. § 102 (b) (2006)
  9. 17 U.S.C. § 201 (2006)
  10. 17 U.S.C. § 202 (2006)