Amazon Sellers’ Guide: Copyright Law

By: CJ Rosenbaum Esq., Anthony Famularo Esq., Levi Stewart, and RJ Cherpak

Chapter 1: A Brief History of Copyright Law

I. The Development of the Printing Press ……….. 1

II. Statute of Anne ……….. 4

III. 1909 and 1912 Copyright Act ……….. 6

IV. Sound Recording Amendment of 1971 ……….. 7

V. Copyright Act of 1976 ……….. 8

VI. Berne Implementation Act of 1988 ……….. 9

VII. Copyright Renewal Act of 1992 ……….. 12

VIII. Copyright Term Extension Act (CTEA) of 1998 ……….. 14

IX. Digital Millennium Copyright Act of 1998 ……….. 16

Copyright Law: Chapter 1: A Brief History of Copyright Law

Amazon sellers are technologically advanced and on the cutting edge of what it means to be an “entrepreneur” in the 21st Century global marketplace. They are held to extremely high standards by Amazon.com. As a result, Amazon sellers must arm themselves with as much knowledge as they can.

Copyright law is of paramount importance to the Amazon seller. This book explores what material is copyrightable, when an Amazon seller may allege copyright infringement, and how an Amazon seller may defend against claims that they infringed another’s copyright.

First, it is important to explore the origins of copyright protection in order for sellers to better understand how this key intellectual property concept can be used to benefit and protect their businesses.

I. The Development of the Printing Press

The development of U.S. copyright law traces back to the development of the printing press in Europe in the 1400s. In 1436, Johannes Gutenberg introduced the movable typing machine in Germany. It replaced wood blocks with metal block letters. With the movable type machine, Gutenberg created what is considered to be the first mass-produced book in history, The Gutenberg Bible. It consisted of 42 lines and was made into 180 copies. [1] Once introduced in Germany by Gutenberg, the printing press began to spread throughout the rest of the world.

When initially introduced to the public, noble classes looked down upon mass produced books as they held hand inked books in a much higher regard and viewed them as symbols of class and luxury. [2] However, commoners quickly gravitated towards press-printed books. As word spread about the printing press, additional shops opened. A whole new trade began to develop. Press-printed books served as a new outlet to spread information to large audiences efficiently and inexpensively. The printing press gained popularity among scholars and politicians. Scholars found the spread of scholarly ideas to be to their benefit and politicians used the invention as a way to attract public interest by printing pamphlets. [3] Not only did the printing press benefit politicians and scholars but society as a whole. Thanks to the printing press, people now had an easily accessible platform they could use to acquire knowledge and educate themselves, which lead to further discussion and establishment of new ideas. In addition, the printing press also created a uniform language, and system of grammar and spelling.

Political pamphlets and mass-publication, however, were not the only things heralded by invention of the printing press. The printing press brought about the establishment of copyright law. Prior to the printing press, authors relied on manual copyists to replicate their works. [4] Because manual copying took so much time, authors had little worry of others copying and plagiarizing their books. The printing press, however, changed all of that. An author could print many more copies of their works and see significantly greater profits; this also made plagiarizing an author’s work a far more attractive scheme and a much easier to do.

The development of church and state interests in censorship and publisher’s interests in limiting the competition grew together and established a quasi-copyright regime that continued until the beginning of the eighteenth century. Henry VIII issued a proclamation in 1529 prohibiting the possession of certain “heretical” works. [5] In the years following the issuance of this proclamation, numerous works, decrees, proclamations and Acts of Parliament prevented the printing and publishing of books until a government panel or ecclesiastical officials approved them. [6] Rather than the courts, the Stationer’s Company, a guild made up of bookbinders, booksellers, and printers, was assigned the daily task of making sure that printers adhered to licensing laws by the Crown.

II. Statute of Anne

Following the nullification of licensing which stripped the Stationer’s Company of its power to seize and abolish unauthorized works, the Company engaged in negotiations with Congress to obtain its own rights to do so by statute. Despite many failures to successfully negotiate for a statute with Parliament, the Stationer’s Company finally prevailed when Parliament enacted the Statute of Anne. The Statute of Anne went into effect in April of 1710 and was referred to as “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the times therein mentioned.” [7] The Statute of Anne was the first copyright statute in the Western World and provided book publishers with legal protection for 14 years going forward and 21 years for books already in print. [8] The Statute of Anne also provided that if the author was still alive at the expiration of his first 14-year copyright term, the copyright re-vested in the author for another 14-year term. In order to receive protection under the Statute of Anne, authors and owners of works were required to register their works in the Stationer’s Company register book. This process of “registration” gave birth to the very same requirement that is necessary to this day for the Amazon Seller seeking copyright protection today.

The significance of the Statute of Anne goes beyond the fact that it was the first ever-copyright law. The Statute of Anne also constituted a major shift in philosophy and law as the statute provided that copyright was a right that belonged to the author. This statute transformed copyright law of publishers from a public law into a private law.[9] The statute’s influence extended beyond Great Britain into multiple other nations including the United States and is a statute that is still referenced to this day by judges and scholars for containing fundamental principles of copyright law.

III. 1909 and 1912 Copyright Acts

The Copyright Act of 1909 was signed into law on March 4, 1909, by President Theodore Roosevelt and brought with it many desired changes to copyright law. [10] Prior to the enactment of the 1909 Copyright Act, United States copyright law had not undergone any significant changes since the late 1700s and was in need of change in order to adapt to the reproductive landscape at the time. [11] Once the 1909 Act went into effect on July 1, 1909, numerous changes were made to older copyright laws including: (1) publications becoming secured by copyright with a copyright notice; (2) copyright protections became available for unpublished works such as performance, exhibitions, and oral deliveries; (3) foreign works in foreign languages became exempt from having to undergo publication in the U.S; (4) the copyright protection renewal period was extended 14 years which provided a maximum period of 56 years and mandated a newspaper copyright notice before a renewal was granted; and (5) granted owners of musical compositions mechanical recording rights.

The Copyright Act of 1912 served as an amendment to the Copyright Act of 1909 and added motion pictures to the list of works that are protected by copyrights. [12] Prior to the 1912 amendment, which is also known as the Townsend Amendment, motion pictures were protected as photographs. [13] The amendment added two new categories to section 5 of the 1909 Copyright Act entitled “motion picture photoplays” and “motion pictures other than photoplays.” [14] These changes protected movies, travelogues, and newsreels. This quick update from the 1909 Copyright Law was another attempt by Congress to keep up with the increasingly rapid developing technology of the 20th Century.

IV. Sound Recording Amendment of 1971

The Sound Recording Amendment of 1971 was enacted on October 15, 1971, and went into effect on February 15, 1972, with the goal of protecting sound recordings. [15] This amendment was implemented in response to the emergence of piracy issues that had come about due to the invention of the audio tape recorder. Concerns over piracy are evident in the language of the amendment as it permits the copyright owner to only “duplicate the sound recording in a tangible form that directly or indirectly recaptures the actual sounds fixed in the recording.” [16] The language of this final amendment shows the increasing difficulty and strain Congress was having attempting to amend laws made in the early 1900’s for the music scene of the 1970’s.

V. Copyright Act of 1976

The purpose of the 1976 Copyright Act was to give Congress the opportunity to update American copyright law and confront the technological advances since the Copyright Act of 1909 was enacted. The most significant changes the Copyright Act of 1976 included the introduction of commercial radio and television, the development of motion pictures, sound recordings and the introduction of new ways to reproduce printed materials and recorded sounds.

Along with addressing new problems that had arisen in response to technological advances, the Act was also implemented with the intent of encouraging artistic and intellectual activity for the benefit of society. In order to allow copyright protection to extend to as broad of a range of creative works as possible, the Copyright Act of 1976 provides that any work expressed through “any tangible medium of expression” and that is an “original work of authorship” can qualify for copyright protection. [17] Additionally, the language of the 1976 abolished a requirement for creative works to be federally registered in order to avoid being considered within the public domain. Instead, the 1976 Act required that works be “fixed,” meaning that they be obtainable through one of the permissible channels of media. In response to the public suggestions made in the reports from the Register of Copyrights and the House and Senate Judiciary Committees, the 1976 Act also extended an author’s copyright term protection period to the lifetime of the author plus 70 years following their death. [18] The Act also clarified the length of payment required to an author’s heirs following the death of the author stating that the payment of fees to an author’s heirs would last for 19 years.

VI. Berne Implementation Act of 1988

The latter half of the 20th Century saw not only an increase in technology that copyright acts had to address, but also an increase in globalization and world trade. The Berne Convention was an attempt to make copyright protections uniform around und the globe. [19] When the document was initially enacted in 1986, however, only ten nations adopted it; the United States was notably-absent. The act was designed to eliminate bias favoring domestic artists over foreign artists, and the United States, at the time, did not provide foreigners with the ability to litigate their copyrights in U.S. courts.

Eventually, President Ronald Reagan signed the Berne Implementation Act into law on October 31, 1988. [20] When signing the Act into law, Reagan made note of the benefits that would result from becoming part of the Berne Union stating:

With 77 countries as members, including most of our trading partners, the Berne Convention features the highest internationally recognized standards for the protection of works of authorship. Our membership will automatically grant the United States copyright relations with 24 new countries and will secure the highest available level of international copyright protection of U.S. artists, authors and copyright holders. [21]

Reagan went on to explain the significance of the U.S.’s adoption of the Berne Convention through an economic lens, stating:

The cost to Americans [of not joining the Berne Convention] has been substantial not only in terms of the violation of the property rights of Americans but in terms of our trade balance as well. We’ve been running a trade surplus of over $1 billion annually in copyrighted books, and it would have been much larger had it not been for the pirating of American copyright work. In 1986 alone, the entertainment industry may have lost more than $2 billion in potential revenue, and our computer and software industries more than $4 billion in potential revenue. [22]

Reagan, a former actor turned actor’s union leader turned politician, may very likely have felt the financial woes of those in the entertainment industry by merit of the U.S. having not been a member of the Berne Convention. This again, was another step toward recognizing the technological and globalized realities of the modern world.

Along with these improvements, the Berne Implementation Act of 1988 eliminated certain procedural requirements such as filing and registration requirements required to bring an infringement claim as well as a notice requirement. [23] Due to these significant potential revenue losses that may have resulted due to the U.S.’s abstention and the expansion of the U.S. copyright relations with over 20 new countries, the Berne Implementation Act of 1988 was one of the most important advancements of the U.S. intellectual property law landscape of the decade. [24]

The Copyright Renewal Act of 1992 provided for an automatic extension of copyrighted works with copyright protection in their first term of protection as of January 1, 1978. [25] This act also removed the previously required renewal mandate during the 28th year of the first term as it automatically extended the term an additional 47 years for the 75-year copyright term total. With the addition of this automatic renewal, the renewal requirement previously used by the 1976 Copyright Act was abandoned and works were no longer subject to the possibility of falling into the public domain upon failure to send a renewal application. [26]

Compelling arguments were made for and against the enactment of the 1992 Act, with the removal of the mandatory renewal application being placed at the center of the Act’s controversy. Proponents of the 1992 Act were authors, publishers, scholars, and the Copyright Office, who were highly critical of the registration renewal requirement and argued that the requirement was burdensome and unnecessary.

Congress opposed the idea of the enlargement of the public domain simply because of an author’s unintentional failure to comply with a procedural requirement. Authors and rights owners were financially dependent on such works. Congress reasoned that these renewal requirements were not needed by looking at the laws of other countries that rarely utilized similar procedural requirements in order for one to obtain or maintain copyright protection. Moreover, Congress came to the realization that keeping these renewal requirements in place would run afoul of the purposes of the Bern Convention, which was to establish a uniform and standard international copyright law. [27]

Ultimately, however, Congress found the opposition’s arguments to be outweighed by what it felt was the true purpose behind copyright protection, which was to provide authors and artists with the exclusive limited rights to benefit from their works in order to incentivize authors and artists to continue creating works that benefited the public at large. [28]

On October 28, 1998, President Bill Clinton signed the Copyright Term Extension Act of 1998 (hereinafter “CTEA”) into law. This act was also known as the Sonny Bono Copyright Term Extension Act of 1998. It was intended to extend the time that copyrighted material would be exempt from being considered part of the public domain.[29] This increased the length of the copyright extension by 20 years.

In addition to the extension, the act provides that works or characters that are created outside of the U.S. that are based off of a copyrighted character or work cannot be sold within U.S. boundaries. As an example, a video game made in Japan that includes a copyrighted character in the U.S. cannot be sold within the U.S. The CTEA of 1998 did not renew copyright protection for works that were already considered part of the public domain. It only applied to works currently having copyright status. One of the major protections that the CTEA provided upon its enactment was the preservation of the copyright protection for the Disney character Mickey Mouse. Mickey Mouse was in danger of losing his protection at the time of the CTEA’s implementation. The CTEA is often colloquially referred to as the “Mickey Mouse Act.”

Despite the many benefits that the CTEA provided, it was still subject to controversy. [30]Small publishers and performers of music in the public domain argued that the term extensions that would come with the CTEA would prevent these publishers and performers from more quickly gaining access to works that served as their source of profits. Libraries and librarians were upset about the implementation of the act because the delay of these works becoming part of the public domain would hinder their ability to gain access to works.

The most noteworthy opposition came from a group of intellectual law professors who filed a statement with Congress arguing that the CTEA would place a significant burden on the public without any public benefit to justify its implementation. The professors argued that the public domain serves as a wealth of information for current and future creators to utilize when making their own independent imaginative works. Ultimately, the Senate Judiciary Committee rejected the opposition and enacted the CTEA. The Committee explained how these specific term extensions in the CTEA had the goal of implementing a fixed term of protection based on the author’s death and protecting a minimum of one generation of the author’s heirs.

The last major piece of legislation that will be covered in this chapter is the Digital Millennium Copyright Act of 1998 (the “DMCA”). President Bill Clinton signed the DMCA into law on October 28, 1998. [31] The implementation of the DMCA was a result of Congress’ effort to help U.S. copyright law transition to the digital age and impose the treaty obligations of the U.S. [32] Again, technology drove the change in the law.

CJ’s Note: Because of the importance of the DMCA to Amazon Sellers, Chapter 3 delves deeper into the history of the law’s enactment and some of its most notable features including the anti-circumvention provisions and the safe harbor provisions.

The DMCA focuses on combating situations where copyright infringement occurs in the digital world and striking a balance between copyright owners and internet service providers. [33] As long as internet service providers satisfy certain statutory requirements, the DMCA shields them from liability for copyright infringement by their users. Some of the statutory requirements an internet service provider must comply with in order to qualify for protection under the DMCA include taking action upon learning when copyright infringing material presides on their network and implementing a policy that terminates users accounts upon discovery when they have repeatedly infringed on copyrights. These provisions are known as “take down” procedures. It should also be noted the DMCA provides protection to the Internet service providers but not users who infringe on copyrighted material on the network. In other words, AOL was protected; Napster was not.

The amalgamation of these copyright acts has become the copyright law that applies to the legal landscape today. The acts and statutes were created to keep up with technology and the rest of the world’s intellectual property rights are what governs Amazon Sellers today….and shields Amazon and other platforms from liability.

[1] The history of print from 1400 to 1499, Prepressure (Feb. 11, 2018), https://www.prepressure.com/printing/history/1400-1499.
[2] The Invention and History of the Printing Press, PsPrint (last visited June 4, 2018), https://www.psprint.com/resources/printing-press/.
[3] Id.
[4] Thomas F. Cotter, Gutenberg’s Legacy: Copyright, Censorship, and Religious Pluralism, 91 Cal. L. Rev. 323, 325-26 (2003).
[5] Id. at 326-327.
[6] Id. at 327.
[7] The Avalon Project, The Statute of Anne; April 10, 1710, Yale Law School (last visited July 26, 2018), http://avalon.law.yale.edu/18th_century/anne_1710.asp.
[8] Id.
[9] Id.
[10] Copyright Act of 1909.
[11] Id.
[12] Copyright Timeline: A History of Copyright in The United States, Association of Research Libraries (last visited July 27, 2018), http://www.arl.org/focus-areas/copyright-ip/2486-copyright-timeline#.W1tKQhpKg8Y.
[13] Id.
[14] William F. Patry, Copyright law and Practice 61 (1994).
[15] Id. at 73.
[16] 17 U.S.C. § 1(f).
[17] 17 U.S.C. § 101.
[18] Id.
[19] Orrin G. Hatch, Better Late Than Never: Implementation of the 1886 Berne Convention, 22 Cornell Int’l L.J. 171, 174 (1989) (discussing the five goals of the Berne Convention).
[20] Id. at 171.
[21] Id.
[22] Id.
[23] Association of Research Libraries, supra note 12.
[24] Id. at 172.
[25] Richard R. Hammar, The “Copyright Renewal Act of 1992,” ChurchLaw&Tax (Nov. 2, 1992), https://www.churchlawandtax.com/cltr/1992/november-december/copyright-renewal-act-of-1992.html.
[26] Association of Research Libraries, supra note 12.
[27] Id.
[28] Id.
[29] What is the Sonny Bono Copyright Term Extension Act of 1998 (CTEA)?, wiseGEEK (last modified July 2, 2018), http://www.wisegeek.com/what-is-the-sonny-bono-copyright-term-extension-act-of-1998-ctea.htm.
[30] Association of Research Libraries, supra note 12.
[31] U.S. Copyright Office, The Digital Millennium Copyright Act Of 1998 U.S. Copyright Office Summary, Copyright.gov (Dec. 1998), https://www.copyright.gov/legislation/dmca.pdf.
[32] Executive Summary Digital Millennium Copyright Act Section 104 Report, Copyright.gov (last visited July 26, 2018), https://www.copyright.gov/reports/studies/dmca/dmca_executive.html.
[33] Digital Millennium Copyright Act, Harvard University (last visited July 26, 2018), https://dmca.harvard.edu/pages/overview.

Amazon Sellers’ Guide: Copyright Law: Chapter 1