The Copy in Copyright

Abstract

Since their inception, copyright and proto-copyright laws have been developed around the concept of "copy," which primarily referred to printed book manuscripts in the reign of Queen Anne. Although copyright began mostly as a right vested in copies, and therefore a right to prevent others from multiplying copies, the emphasis has now been dramatically shifted to the act of copying itself. The terms "copy" and "copies" have also been slowly re-conceptualized to respond to changing technology and to expand the scope of copyright protection.

The first half of this chapter takes a historical perspective. It recounts the use of the concept of "copy" by the Stationers’ Company and in the Statute of Anne. It also addresses two different sets of challenges to this foundational concept. The first set focuses on the seminal case of White-Smith Music Publishing Co. v Apollo Co., the first major challenge to this concept on the other side of the Atlantic. The second set concerns the efforts in the mid-1990s to update the concept to meet the needs of the digital environment, which inevitably involves both material and immaterial copies.

The second half of this chapter is forward-looking. It examines four areas in which digital technology has posed major challenges to the concept of "copy": reproduction, distribution, public performance and making available. These four areas are chosen because they correspond to the different rights in the bundle of rights covered within the copyright system. They also highlight questions involving material copies and the distinction between material and immaterial goods. The chapter concludes with six observations concerning the future development of copyright law in the digital environment.