Copyright Law: An Introduction and Issues for Congress

Copyright Law: An Introduction and Issues for Congress

March 7, 2023
Copyright Law: An Introduction and Issues for Congress
Copyright law grants the authors of original creative works
and have at least a minimal degree of creativity. For
a set of exclusive rights in their creations, including the
example, neither an unoriginal collection of facts (such as
right to prevent others from copying or selling the work
an ordinary telephone number directory) nor a work copied
without the copyright holder’s permission. The U.S.
entirely from a previous work is copyrightable.
Constitution empowers Congress to create a copyright
system to promote the progress of science and learning. The
A work must also be fixed in a tangible medium of
main goal of copyright law is to spur the growth and spread
expression to be copyrightable. This means that a work has
of knowledge by encouraging authors to create new works.
to be recorded in some way so that it can be later perceived,
communicated, or reproduced. For instance, a live musical
Copyright protections are critical to many areas of the U.S.
performance is not fixed unless someone records it, such as
economy, particularly in industries such as entertainment
by taking a video of the performance on a smartphone or by
and technology. A study by the U.S. Patent and Trademark
writing it down in musical notation.
Office found that copyright-intensive industries—such as
computer software, motion pictures, music, and news
The Copyright Registration Process
reporting—contributed $1.29 trillion to U.S. gross domestic
An original work is copyrighted once it is created and fixed.
product and directly employed 6.6 million people in 2019.
Unlike some other forms of intellectual property (e.g.,
patents), the author need not apply with the federal
Given the economic and cultural significance of copyright-
government to obtain a copyright. Copyright holders may,
intensive industries, Congress frequently considers
however, choose to register their copyright with the U.S.
amendments to the Copyright Act, the federal law
Copyright Office. Registration yields several benefits; for
governing the U.S. copyright system. This In Focus
example, American copyright holders must register their
provides an overview of copyright law and highlights areas
work before they can sue for copyright infringement in
of current and potential congressional interest.
federal court.
Copyright Overview
Copyright Ownership and Transfer
Ownership of a copyright vests initially with the author(s)
Types of Copyrightable Works
of a work. In the case of works made for hire (such as
Copyright protection is available for many different types
creative works created by employees as part of their job),
of creative works, including:
the person or corporation for whom the work was made is

treated as the author.
literary works (e.g., books and computer code);
 musical works;
Ownership of a copyright is often transferred by contract in

whole or part. For example, musical recording artists often
dramatic works;
assign their copyrights to record companies in exchange for
 choreographic works;
compensation.
 pictorial, graphic, and sculptural works (e.g., fine art
Exclusive Rights of Copyright Owners
and photography);
Copyright holders generally have the exclusive right to
 audiovisual works (e.g., movies and television);
reproduce the work, publicly perform and display it,
distribute it, and prepare derivative works from it.
 sound recordings; and
(Derivative works include adaptations of a work, such as a
 architectural works.
foreign-language translation, sequel, or dramatization.) A
person who takes one of these actions without the copyright
In all cases, copyright protection applies only to a work’s
holder’s permission is said to infringe the copyright.
creative expression. It does not extend to the ideas,
processes, systems, discoveries, or methods of operation
Copyright infringement occurs only if the alleged infringer
that may be described in the work. For example, while
actually copied from the earlier work, so there is no liability
copyright might prevent others from copying the words in a
if the accused work was created independently. In addition,
book verbatim, another person could still explain the idea
an accused work will infringe an earlier work only if the
communicated by the book using different words.
two works are substantially similar, that is, sufficiently
alike in their copyrightable elements.
Originality and Fixation Requirements
To be copyrightable, a work must be original and fixed in
For most works created today, the copyright does not expire
some tangible form. To be original, a work must be
until 70 years after the death of the work’s author.
independently created (i.e., not copied from another person)
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Copyright Law: An Introduction and Issues for Congress
Copyright in works made for hire, as well as anonymous or
copyright laws. Over time, Congress has greatly expanded
pseudonymous works, lasts for 95 years after publication of
the types of works subject to copyright (originally limited
the work or 120 years after its creation, whichever is earlier.
to books and maps), and the length of copyright terms
(originally no more than 28 years). Some of these changes
Copyright Enforcement
served to harmonize U.S. copyright law with international
Copyright holders may sue alleged infringers in federal
standards and treaties.
court to obtain money damages, an injunction (i.e., a court
order to cease infringing activity), and other legal remedies.
The copyright law currently in force is the Copyright Act of
Copyright holders concerned with the importation of
1976, codified at Title 17 of the U.S. Code. Major
infringing copies of a work may record their rights with
amendments to the Act include the Berne Convention
U.S. Customs and Border Protection (CBP) or seek an order
Implementation Treaty Act of 1988, the Sonny Bono
excluding particular goods from the U.S. International
Copyright Term Extension Act of 1998, and the Digital
Trade Commission. The federal government may criminally
Millennium Copyright Act of 1998 (DMCA).
prosecute some cases of willful copyright infringement.
Considerations for Congress
Copyright Licensing and Statutory Licenses
Congress may monitor the implementation of two
Persons seeking to use a copyrighted work in a way that
significant copyright reforms that came into effect in recent
might infringe the copyright may seek permission for the
years. The Orrin G. Hatch-Bob Goodlatte Music
use from the copyright holder. Such permission—which
Modernization Act (P.L. 115-264), which came into full
may be granted orally or in a formal contract—is called a
effect in January 2021, changed the statutory licensing
license. Licenses often require monetary payments to the
process for online distribution of musical works (e.g.,
copyright holder, known as a royalty.
interactive streaming). The Copyright Alternative in Small-
Claims Enforcement Act of 2020 (CASE Act) established
In some cases, Congress has decided to grant blanket
the Copyright Claims Board, an administrative tribunal that
permission to anyone who wants to make defined uses of
may adjudicate certain copyright infringement claims
certain copyrighted works, without having to seek
valued up to $30,000. The Board began hearing claims in
individual permission from copyright holders. These
2022.
enactments are called statutory licenses (sometimes also
known as “compulsory” licenses). Rather than being set
Continuing a longstanding debate, some Members of
through private contractual negotiation, the royalty rate is
Congress have introduced bills in the 118th Congress on
established via statute or by Copyright Royalty Board
whether broadcast radio stations must pay royalties to
(CRB) proceedings. For example, many uses of musical
musical performing artists to play those artists’ recordings
works and sound recordings are subject to statutory licenses
on the radio. Bills such as H.R. 791 and S. 253 would
with rates set by the CRB. (For more information on music
require royalties in some cases, while H.Con.Res. 13 urges
licensing, see CRS Report R43984, Money for Something:
Congress to maintain the status quo that allows broadcast
Music Licensing in the 21st Century, by Dana A. Scherer.)
radio to play sound recordings without paying royalties.
Fair Use and Other Limitations on Copyright
Members may also reintroduce copyright reform bills
Fair use is an important limitation on copyright that permits
introduced in the 117th Congress, such as proposals to
certain societally valuable uses that would otherwise be
enhance CBP authority over suspected infringing imports
infringements. For example, quoting portions of a
(e.g., S. 1159, 117th Cong.), or to reform the DMCA’s
copyrighted work in a book review or creating a parody of a
provisions on technologies used to identify and protect
work are typically fair uses.
copyrighted works online (e.g., S. 3880, 117th Cong.). A
proposal to shorten some copyright terms (H.R. 576) has
Fair-use determinations are highly contextual. In
been reintroduced in the 118th Congress.
determining whether a use is fair, courts consider four non-
exclusive statutory factors: (1) the purpose and character of
The application of copyright to artificial intelligence (AI) is
the use, (2) the nature of the original work, (3) the
another emerging issue. The Copyright Office has taken the
substantiality of what was copied, and (4) any market harm
position that only a human being—and not an AI—may be
from the use. As part of the first factor, courts often look to
an “author” under the Copyright Act. Others dispute that
whether the use is transformative; that is, whether it adds
view, or argue that at least some human-assisted outputs of
new expression, has a different purpose, or alters the
generative AI should be copyrightable. Related issues (and
original work with new expression or meaning.
ongoing litigation) include whether AI outputs or the use of
material on the internet to “train” AI infringes the
Besides fair use, the Copyright Act contains many specific
copyrights in existing works. (For more on these issues, see
statutory exceptions that allow particular uses of a
CRS Legal Sidebar LSB10922, Generative Artificial
copyrighted work without permission or royalties. These
Intelligence and Copyright Law, by Christopher T. Zirpoli.)
include certain uses by libraries, in classroom education, or
during religious services.
Kevin J. Hickey, Legislative Attorney
Current Copyright Laws
IF12339
Copyright has been a part of federal law in some form since
1790. Congress has periodically updated and revised the
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Copyright Law: An Introduction and Issues for Congress

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.

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