Copyright

Copyright is a form of intellectual property protection that gives the creators of original works, such as texts, music, images, films and software, exclusive control over how those works are reproduced, distributed, publicly performed and adapted. It protects expression rather than ideas, facts or methods, and in most countries it arises automatically when a work is created, without registration. Its rules are set by national statutes, developed through court decisions in some systems, and harmonised by international treaties.

Copyright matters because it shapes publishing, music, film, broadcasting, education and, increasingly, the internet and artificial intelligence. It is meant to balance two aims: giving authors and their business partners enough control and income to encourage creation, and ensuring that works eventually become available for everyone to use. The modern framework grew from the Statute of Anne of 1710 and the Berne Convention of 1886, which set common standards such as national treatment and a minimum term of the author's life plus 50 years. Many countries now use longer terms, so most works remain protected for decades before entering the public domain.

The entry moves from definitions and history to the international treaty system, the two main legal traditions, the kinds of works protected, originality and formalities, duration, ownership and licensing, exceptions such as fair use, infringement and remedies, neighbouring rights, software and databases, digital networks, and artificial intelligence. It closes with the economic and philosophical foundations of copyright and the main policy debates over its scope and length.

Definition and core principles

Copyright is a set of legal rights that lets the creator of an original work, and later the people who receive those rights, control how the work is copied and used. It is usually described as a bundle of rights rather than a single entitlement, and the separate rights are subdivided indefinitely, and each subdivision of an exclusive right may be owned and enforced separately. The core economic rights include reproduction, the preparation of derivative works (translations, arrangements and adaptations are standard examples), distribution, public performance and public display. Ownership is not all or nothing: an owner may convey some while retaining others. The rights also have limits. Under the first-sale doctrine, once a lawful copy has been sold, the copyright owner no longer has the distribution right over that particular copy.

The most important limit is the idea–expression distinction. Copyright protects a particular expression of an idea, such as the wording, images, musical notes or code in which it is embodied, but not the idea itself. The US Supreme Court has said that copyright, unlike a patent, gives no exclusive right to the art disclosed. A useful illustration is a paper explaining a political theory: the paper is protected, but the theory itself is just an idea, and is not copyrightable. Another author is free to describe the same theory in their own words. The same logic applies to facts. There is no copyright protection in basic facts, and it makes no difference how much effort went into discovering a particular fact. In Feist, the Supreme Court put it as a matter of discovery: the first person to report a fact has found it, not created it. Procedures, methods and systems fall outside protection in the same way. In Baker v. Selden (1879), the Court protected the written books describing a bookkeeping system but not the system itself. Where an idea can be expressed in only a few ways, the idea and expression of the idea merge, and the merger doctrine then withholds protection from that expression. Compilations of facts are treated differently and may be copyrightable material if their selection or arrangement shows originality.

Copyright differs from the other main intellectual property tools in subject matter, duration and formalities. A patent protects inventions that are new, useful, and non-obvious, and its scope is much broader: a patent lets its owner stop anyone from making, using or selling the invention, whereas a trade secret owner can stop only those who acquire the secret improperly. A trade secret protects confidential information such as formulas, algorithms or customer data, and it has no expiration date as long as secrecy is maintained. Trademarks protect brand identifiers, and federal registrations must be renewed every 10 years. Copyright is the only one of these that arises without any filing: an artistic work is granted copyright as soon as it is fixed in tangible form. Its term is long by comparison. Patent terms are fixed at twenty years from the date you file your patent application, while most copyrights expire seventy years after the author expires in the United States. Because copyright protects expression rather than invention, two authors who independently create similar works do not infringe each other; copying must be shown.

The basic purpose of copyright is incentive. Creative works are something anyone can build freely upon, and the exclusive rights are meant to encourage creators to produce and distribute works that others could otherwise copy at little cost. The system balances that goal against public access in several ways: protection is limited to expression, facts and ideas stay open, the term is finite, and exceptions such as fair use and fair dealing allow certain uses without permission. Commentators often describe the idea–expression line as the place where copyright's protection of authors meets the freedom to communicate facts and ideas, a balance the Supreme Court has linked to the First Amendment. How wide each limit should be is a recurring question in the sections that follow.

Historical origins

Before copyright existed as a statutory right, control over copying was exercised mainly through monopolies granted by the Crown and through guild discipline. In England the central institution was the Stationers' Company, a London guild of booksellers and printers that received its royal charter in 1557. Members entered titles in a register, and entry gave a member the right to print that work against other members. The Star Chamber decree of 1586 reinforced this order by confining printing presses to London, Oxford and Cambridge and limiting the number of master printers and apprentices. Crown printing privileges complemented the guild system by granting exclusive rights in particular titles or categories, such as law books, almanacs and psalters. The system served censorship as much as commerce, because the Crown used it to control seditious and heretical material. The Licensing Act of 1662 extended pre-publication licensing, and when Parliament declined to renew it in 1694, the licensing regime collapsed.

After licensing ended, the booksellers pressed for a legal basis for their claims, and their arguments turned on whether an author's rights in a text survived publication. Their case rested on the common law rather than on statute. In Millar v Taylor (1769) the King's Bench accepted a perpetual common-law copyright in published works. The House of Lords reversed this in Donaldson v Becket (1774), holding that any common-law right ended with publication and that the statutory scheme governed what remained. The Stationers had therefore lost their perpetual claims, but they had not lost their economic position.

The Statute of Anne, formally "An Act for the Encouragement of Learning" and in force from 10 April 1710, is generally treated as the first copyright statute. It differed from the earlier system in two respects. First, it vested the right in authors, or in those to whom they assigned it, rather than in printers alone. Second, it set a fixed term: fourteen years from first publication, renewable for a further fourteen years if the author was still living at the end of the first term. Books already printed received a 21-year term. The Act also required that nine copies be deposited with designated libraries. Its limited term became a model for later legislation, and the idea that a work eventually belongs to the public took firm root in the statute.

On the European continent, authors' rights developed along a different path, shaped by the theatre and the French Revolution. The French decree of January 1791 gave dramatic authors the exclusive right to authorise public performance of their works, which ended the privileges that the royal theatres had enjoyed. The law of July 1793 extended protection to writings, compositions and works of art, and granted heirs a term of the author's life plus ten years. Its reasoning treated the author's creation as a form of property, and this principle of a personal link between author and work became central to the civil-law tradition that the legal system of much of Europe later adopted. German states and other continental jurisdictions passed their own laws during the nineteenth century, building on the same premise.

Growth in the market for books, periodicals and music, driven by mechanical printing and by the expansion of the industrial economy and literacy, made the gaps between national systems increasingly costly. Works could be reprinted without payment across borders. Continental publishers in Belgium, the Netherlands and Switzerland reprinted British and French novels, while American publishers reprinted British authors because the United States gave no protection to foreign works until 1891. Charles Dickens, who toured America in 1842, campaigned publicly against unauthorised reprinting of his books. Authors' and publishers' associations therefore pressed for reciprocal recognition of rights. A congress convened in Paris in 1878, led by Victor Hugo, helped launch the process that culminated in the Berne Convention of 1886, discussed in the next section, which established the basis for an international system of mutual protection.

International treaty system

Berne Convention (1886)

Before 1886, protection depended on national statutes and a patchwork of bilateral agreements, so a book published in one country could often be reprinted in another without payment to its author. The Berne Convention for the Protection of Literary and Artistic Works was adopted on September 9, 1886, and it is now administered by WIPO in Geneva. Its core is a set of principles rather than a single uniform law. The first is national treatment: a member state must give the works of other members the same protection it gives its own nationals. The second is automatic protection: the enjoyment and exercise of rights may not be made conditional on any formality, so a work is protected from the moment it is fixed. The third is independence of protection: protection in a given country does not depend on whether the work is protected in its country of origin. The text also sets minimum standards, including a minimum term and a list of protected rights, while leaving member states free to grant more.

Revisions and technological change

The Convention has been revised repeatedly rather than replaced. The Paris Act of 1896 and the Berlin Revision of 1908 came first; the 1908 text brought cinematographic works within protection and rejected compulsory formalities. The Rome Revision of 1928 added moral rights and a broadcasting right, the Brussels Revision of 1948 and the Stockholm Revision of 1967 updated the text and its administrative structure, and the Paris Act of 1971 introduced an Appendix with special provisions for developing countries, including non-voluntary licences for translation and reproduction for educational purposes. The 1979 amendment dealt mainly with administrative and procedural matters. Since 1971 there has been no further substantive revision of the Paris text, so questions raised by digital networks have been addressed through later treaties instead. This pattern means that Berne's rules on reproduction and public communication were drafted for print, cinema and broadcasting, and their application to software, databases and online transmission has required interpretation and new instruments.

The Universal Copyright Convention (1952)

The Universal Copyright Convention (UCC) was adopted at Geneva in 1952 under the auspices of UNESCO, as a second multilateral framework for countries that did not accept Berne's rules. The principal obstacle was the United States. Its law then granted protection for a fixed, renewable term, conditioned protection on registration, and required a copyright notice, all of which conflicted with Berne's ban on formalities and its single life-based term. The UCC accepted such formalities, allowing a state to satisfy it by displaying the © notice, and so offered American and other formality-based systems a route to reciprocal protection. Berne members were concerned that the UCC might draw states away from Berne, and the UCC's Article 17 therefore stated that it did not affect Berne's provisions. The United States joined the UCC in 1955 but continued to keep its domestic formalities. Its move to Berne required substantial statutory change, which was enacted through the Berne Convention Implementation Act of 1988, and took effect on March 1, 1989. Until then, publishers had sometimes used Canada as a "back door" to Berne protection for their works.

TRIPS, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), concluded in 1994 as part of the Uruguay Round, took effect with the creation of the World Trade Organization on January 1, 1995. Its significance lies in linking intellectual property to the trade system: members must comply with Articles 1 to 21 of the Berne Convention and its Appendix, though not with Berne's moral rights provisions, and disputes can be brought through the WTO's dispute settlement procedure. TRIPS also added computer programs and databases as protected subject matter, introduced rental rights, and set out enforcement obligations, including border measures.

The WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) were adopted at a Geneva diplomatic conference in December 1996 to update the framework for digital networks. The WCT addresses computer programs, compilations of data, distribution and communication to the public, and obliges states to provide legal remedies against the circumvention of technological protection measures. The WPPT extends comparable rights to performers and phonogram producers. Both treaties entered into force in 2002. Together with TRIPS, they form the main global layer of copyright law, with national legislation implementing its requirements in different ways.

Two legal traditions: author's rights and copyright

The two families of law that govern creative works grew from different starting points, though both emerged in the eighteenth century to address a similar problem: the imbalance between authors and publishers, and the need for authors to earn income other than through patronage Both copyright and authors' rights arose in the eighteenth century to address similar problems: the inequality in relations between authors and publishers (and between publishers themselves) if intellectual property is not recognized and protected, and the need to provide an income for authors other than patronage. In the civil-law tradition, which is most closely associated with France and Germany, the protected object is the "work of the mind," and the decisive question is whether a work reflects the author's creativity rather than mere effort or investment It is an essential feature of authors' rights and of many copyright laws that the object which is protected must arise from the creativity of the author rather than from their simple effort or investment. This tradition ties the rights closely to the individual creator, so that initial ownership by a corporation is tightly restricted, and in Germany it is effectively impossible the initial ownership rights by a corporation are severely restricted or even impossible (as in Germany).

Common-law copyright, found in the United States, the United Kingdom, Australia and New Zealand, treats the right chiefly as an economic instrument. Its benefits flow in large part to those who finance and distribute creative work, such as producers and employers, rather than to the individual author Copyright is based primarily on economic considerations. It protects the people who invest in intellectual property (producers, employers, etc.) more than it protects the authors of the creative works. This explains the acceptance of corporate authorship in the United States through the work-made-for-hire doctrine Common law jurisdictions are more willing to accept corporate ownership of copyright, as in the U. S. work for hire principle. Civil-law systems usually reach a similar commercial result by a different route, giving the employer an exclusive licence to the economic rights rather than outright ownership. Commentators have observed that the practical economic difference between the two arrangements is hard to detect, even though the legal reasoning diverges it is difficult to see an effective (economic) difference in the two situations.

Moral rights are the clearest point of divergence. Under Article 6bis of the Berne Convention, they include attribution, meaning the claim to be identified as author, and integrity, meaning the right to object to distortion or alteration that would harm the author's honour or reputation Article 6bis provides two types of moral rights for creators: the right of attribution and the right of integrity.. These protections persist after the economic rights have been transferred independently of the creator's economic rights, even after their transfer, the creator maintains the right to claim ownership of a work. In France, the Intellectual Property Code describes the right to respect for the author's name and work as "perpetual, inalienable and imprescriptible." The civil-law rationale is that moral rights are a species of personality right, protecting the author as a person and not merely the work as property In the civil law tradition they are classified as a species of personality right: what is protected is the author as a person, not only the work as property.. Scholars use the same reasoning to explain why these rights can last indefinitely, since the work is treated as an extension of the author's personality.

Common-law jurisdictions have been more reluctant to recognise moral rights, and when they did, they framed them more narrowly. In the United States, moral rights are recognised only in limited contexts Some countries, such as the United States, recognize this only in very limited contexts, while others apply it to all copyrightable works., mainly for visual art under the Visual Artists Rights Act of 1990. In Canada, the rights cannot be assigned, so authors keep them even when they transfer their economic rights authors retain their moral rights because those rights are inalienable and cannot be assigned to others. The United Kingdom's statutory regime allows waiver through a signed agreement, a feature that civil-law systems generally reject Waivable: Yes, by signed agreement. Even where the employer owns the copyright, some common-law systems keep moral rights with the employee, because they remain with the creator Because they are inalienable, moral rights remain with the author even where the copyright does not belong to the author. For example, employees hold moral rights in created work, even if copyright vests with the employer.

The two traditions have converged partly through international law but still differ in how they handle transfers and authorship. The Berne Convention applies national treatment, requiring member states to give foreign authors the same protection they give their own nationals signifies that Berne signatories must grant authors the same protection they accord to their own nationals.. Article 6bis was added in 1928 and says nothing explicit about alienability, yet commentators have read it as implying that the rights are inalienable and non-waivable Article 6bis does not address whether moral rights are alienable and/or waivable. Although specific language addressing these issues is absent, commentators have interpreted Article 6bis moral rights as inalienable and nonwaivable.. Member states remain free to set the detailed doctrine in their own law Article 6bis(3) of the Berne Convention allows member states to determine their own doctrine of moral rights in their national legislation.. The TRIPS Agreement, by contrast, expressly excludes Article 6bis from the obligations it imposes "Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of the Berne Convention or of the rights derived therefrom." As a result, the civil-law and common-law approaches still differ on whether a work is primarily a property asset that can be traded, or an expression of the author's personality that stays bound to the creator.

Protected works and subject matter

Copyright protects a defined class of "works" rather than every creative output, and the boundaries of that class have been drawn by treaties, statutes and court decisions. Article 2(1) of the Berne Convention sets an open-ended definition, covering every production in the literary, scientific and artistic domain, and then gives an illustrative list. The list includes books, pamphlets and other writings; dramatic and dramatico-musical works; choreographic works and pantomimes; musical compositions with or without words; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works; cinematographic works; and illustrations, maps and three-dimensional works relating to geography, topography, architecture or science. Berne places photographs and films within the same framework, although both were contested at first. In the United States, the Supreme Court upheld the copyrightability of photographs in Burrow-Giles Lithographic Co. v. Sarony (1884), a decision that shaped later treatment of photography as an art form (photography).

Derivative works and compilations

Berne Article 2(3) protects translations, adaptations, arrangements of music and other alterations of a work as original works, but "without prejudice" to the rights in the underlying work. A translator therefore owns copyright in the new text, yet cannot publish it without the authorization of the original author. Under United States law, a derivative work is based on one or more preexisting works, and the new author's protection extends only to the material that author contributed. Compilations receive similar treatment. Berne Article 2(5) protects anthologies and encyclopaedias that, through the selection and arrangement of their contents, constitute intellectual creations, again without prejudice to the copyright in each item they contain. This protection covers the selection and arrangement only, not the underlying facts or the separate works within the collection.

Collective works, such as periodicals and multi-author anthologies, raise a related question about who may reuse individual contributions. In the United States, the copyright in each contribution remains with its author, while the publisher of a collective work holds a privilege to reproduce that contribution as part of the collective work, including revisions and later issues in the same series, but not for unrelated purposes.

Excluded subject matter

Some categories are left outside copyright or are subject to national discretion. Berne Article 2(4) allows member states to decide whether to protect official texts of a legislative, administrative or legal nature and official translations of them. Article 2(8) excludes news of the day and miscellaneous facts having the character of mere press information, which are regarded as unoriginal or as belonging to the public domain. Works of applied art and industrial designs fall under Article 2(7), which leaves the conditions of protection to national law. In the United States, works produced by federal government employees are excluded under 17 U.S.C. §105. Official documents and judicial decisions are therefore treated differently across legal systems, and some countries protect them while others do not.

New media and digital forms

The list of protected categories has expanded through national legislation and treaties. The US Copyright Act's list of eight categories in 17 U.S.C. §102(a) includes sound recordings and architectural works, which were added to American law after earlier statutes. The TRIPS Agreement (Article 10) confirms that computer programs are protected as literary works and that compilations of data are protected, and the WIPO Copyright Treaty (1996) repeats these points in Articles 4 and 5. Digital works such as websites, software, databases, and interactive video games do not map neatly onto the traditional categories. Courts and legislatures in different countries have classified video games as audiovisual works, as software, or as a combination of both, which can affect the term, ownership and formalities that apply.

Overlapping categories in practice

Most complex works fall into several categories at once. A feature film may combine a screenplay (a literary work), a musical score (a musical work), sets and costumes (artistic works), sound recordings and choreographed sequences, each of which may have a different author, owner and term. Berne Article 14bis addresses film works specifically, while the other elements remain governed by their own rules. Because the Berne list is illustrative rather than exhaustive, and because many national laws protect any original work fixed in a medium, the classification of a work usually affects how its rights are owned, licensed and measured in time, rather than whether protection exists at all.

Originality, fixation and formalities

Originality: from effort to creativity

Originality is the threshold condition for copyright, but the standard has changed over time. Some courts in the United States and Britain once accepted the "sweat of the brow" doctrine, under which labour invested in compiling material could justify protection. In Feist Publications v. Rural Telephone Service (1991), the US Supreme Court rejected that approach and held that the test is originality, not the compiler's effort. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable. On that basis, the Court held that a plain alphabetical telephone directory lacked the minimum creativity needed to be protected.

European law uses a different formulation. Under EU harmonisation, which the Court of Justice of the European Union has applied since its 2009 Infopaq ruling, a work qualifies if it is the author's own intellectual creation, reflecting free and creative choices. The British tradition, by contrast, long asked whether skill, labour and judgment had been applied, and it has been narrowed by European harmonisation in the UK as well.

Fixation

Most systems require that a work be fixed in some material form before it attracts protection, though the Berne Convention itself does not set this as a general condition. The WIPO guide to Berne explains that fixation is not a formality within the meaning of Article 5(2), because it serves to prove that the work exists rather than to create the right. US law expresses the same idea by protecting only works "fixed in a tangible medium of expression." Unfixed material, such as an improvised speech, therefore often falls outside copyright and may be covered instead by performers' rights, which are discussed elsewhere in this entry.

Berne's prohibition on formalities

Article 5(2) of the Berne Convention provides that the enjoyment and exercise of authors' rights shall not be subject to any formality. The 1908 Berlin revision made this principle central: copyright protection arose automatically in every Berne Union country upon creation of the work by a national of a member state, or on first publication in one. Registration, deposit and notice may still be used, but a failure to complete them cannot cost the author the right itself. Berne does permit formalities to be imposed on works from the author's own country, which is one reason national registration systems survived.

The Universal Copyright Convention (1952) offered a middle path. Its © symbol, combined with the owner's name and year, was treated as satisfying any formality that a contracting state might otherwise impose.

Registration, deposit and notice

In most systems registration is optional and serves evidentiary or administrative purposes. The United States has a distinctive history. Under the 1909 Act, a published work without a proper copyright notice could lose protection. The 1976 Act reduced this risk, and the Berne Implementation Act of 1988 made notice optional for works published from 1 March 1989, when the United States joined Berne. Notice remains common practice, but it is no longer a condition of protection.

US registration still matters for enforcement. A copyright owner may institute a civil action for infringement of those exclusive rights, but generally only after registration has been made. The Supreme Court in Fourth Estate v. Wall-Street.com (2019) held that registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright. Filing an application is therefore not enough. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration. Berne limits the requirement for foreign works: the United States may impose it on domestic works but not on works from other Berne countries.

Registration also affects remedies. Under 17 U.S.C. § 412, statutory damages and attorney's fees are generally available only if the work was registered before the infringement began or within three months of first publication. Registration made within five years of publication also gives the certificate evidentiary weight as prima facie proof of validity. Since these rules apply only to US works, rights holders elsewhere usually rely on the general protection that arises at creation.

Duration and the public domain

Copyright lasts for a limited time, and the length of that time is where national laws differ most. The Berne Convention sets only minimum periods. For most works, it requires protection to run for the author's life plus at least 50 years after death. For some categories of works, the minimum duration is shorter. Photographs are the clearest case: the Berne Convention sets a minimum term of 25 years from the year the photograph was created. Cinematographic works follow a different clock, measured from first showing rather than from the author's death.

Anonymous and pseudonymous works

Where the author is unknown, because the work is anonymous or published under a pseudonym, Berne uses publication as the starting point. The Convention provides for a term of 50 years after publication, counted from the time the work is lawfully made available to the public. The rule has a fallback: if the identity of the author becomes known, the copyright term for known authors (50 years after death) applies. Many national systems have built on this structure, and the practical effect is that a work's term can change when its authorship becomes clear.

Term extensions and national variation

Berne is a floor, and most countries have chosen longer terms. A number of countries, including members of the European Union and the United States, have extended that to 70 years after the author's death. The EU did this through a 1993 directive on harmonising the term, which aligned member states at life plus 70 years. In the United States, the Copyright Term Extension Act of 1998 added 20 years to the terms for works still protected at that time, and it also set longer fixed terms for corporate works and for anonymous and pseudonymous works.

The most extreme case among major jurisdictions is Mexico. The term for copyright protection in Mexico is the life of the author, plus 100 years after the author's death. Mexico's term extensions were not applied retroactively, and this matters for public-domain status. Copyright terms have been repeatedly extended, but not retroactively. Works remained in the public domain if they were in the public domain before each new law took effect.

Berne also contains a "rule of the shorter term". Under Article 7(8), the term shall not exceed the term fixed in the country of origin of the work, unless the country where protection is claimed provides otherwise. In practice, a work may be protected for different lengths in different countries. Whether a foreign work is protected in full abroad therefore depends on both the country of origin and the country where it is used.

When terms begin and end

Most systems measure the term from the author's death but count from the start of the following calendar year. A work by an author who dies in a given year is therefore protected until 31 December of the final year of the term. The UK, for example, runs its term from the end of the calendar year in which the last remaining author of the work dies. For works of joint authorship, the clock normally runs from the death of the last surviving author, which is why a co-written work can stay protected long after its first author has died.

Works whose terms are measured from creation or publication follow different arithmetic. In the United States, the term for most existing works is a fixed number of years after the date of creation or publication. Under the 1998 Act, works published before 1978 that were still protected received a total term of 95 years from publication. Because of this, United States works published in 1923 did not enter the public domain until 2019, and works published in 1930 became free to use on 1 January 2026.

Entry into the public domain

When the term expires, the work passes into the public domain. Public-domain works may be copied, adapted and distributed without permission or payment, though other rights may still apply, such as trademarks, rights in particular editions or performances, and rights in later, copyrighted additions. The question of when a work enters the public domain is therefore often more complicated than it looks. Foreign works, works published in several countries, and works whose authorship is disputed can each require separate analysis. Public-domain status is also central to debates over cultural heritage and access to culture, as discussed in other sections of this entry, and it is the main reason that the length of the term matters to users and to the public domain as a commons.

Ownership, transfer and licensing

Initial ownership and work made for hire

Copyright systems start from the person who creates a work, but several major jurisdictions move first title to an employer or commissioning party. In the United States, the work-made-for-hire doctrine follows one of two routes: employee work created within the scope of employment, or specially commissioned work that satisfies strict statutory requirements. The commissioned route is narrow. The work must be specially ordered or commissioned for use in one of nine enumerated categories, and there must be a written agreement signed by both parties stating that the work is made for hire. Outside these categories, a contractor who writes a novel or paints a commissioned picture keeps the copyright unless the parties transfer it separately.

Whether a creator is an employee is decided under general agency principles. The Supreme Court applied this test in Community for Creative Non-Violence v. Reid, and the factors include who controls the work and how the creator is treated for tax and benefits purposes (the common law of agency principles should apply to determine whether a creator of a work is an employee). The employee route is also not automatic. If an employee creates a work entirely on personal time, using personal resources, and outside the duties of their job, the employer may not have any ownership rights. Courts, however, read the employment route generously where the employer directed the work. The employer is generally presumed to own work made at its "instance and expense," meaning it induces the creation and supplies the resources.

Work-for-hire status has practical consequences for the creator. Under US law the creator has no exclusive rights in the work, such as the right to reproduce, make derivative works, or distribute copies. The creator also loses the ability to reclaim rights later. Ordinary authors may terminate a grant 35 years after assigning the copyright to another party, but this is not available to works made for hire copyright assignments. In the United Kingdom, the employer is likewise the first owner of works created by employees in the course of employment, subject to any agreement otherwise (if a work is created by an employee as part of their job duties, the employer is considered the legal author or first owner of copyright). Many civil-law countries are more restrictive. Because the author's personal link to the work is treated as inalienable in those systems, an employer generally receives only the rights that its contract or statute specifically provides, as in France and Germany.

Joint authorship and co-owners

A joint work arises when two or more authors create a work with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. Each co-author holds an undivided interest in the whole work, not in a separate chapter or verse. Unless the parties agree otherwise in a written contract, the default rule is that each co-author owns an equal share of the copyright, regardless of how much each person contributed creatively.

The default rules allow co-owners to act alone to a large degree. Unless joint owners agree otherwise in writing, each joint owner generally may, without consent from the others, use the work, grant non-exclusive licenses to third parties, and transfer its own ownership interest. The main limit concerns exclusive licences. Without the consent of the other co-owners, a joint owner cannot grant an exclusive license covering the entire copyright or any exclusive right in full. A unilateral exclusive grant is effective only for the granting owner's proportional interest. The co-owner who licenses must also account to the others. Joint owners can fully exploit the copyrighted works, but they have to account to the other joint owners for the profits from such exploitation. This differs from patents, where co-owners may exploit an invention without accounting.

Federal appellate decisions have tightened these rules. The Ninth Circuit held that a copyright co-owner cannot grant an exclusive license without the consent of all the other co-owners. The Second Circuit, in a case involving a co-author's retroactive licence, held that a co-author cannot immunize a third party for past infringements by retroactively issuing a license for the infringed work. Commentators have described the combined effect as a loss of divisibility, which complicates deals for works with several authors. The music industry has adapted by licensing only fractional shares. Performing rights organisations such as ASCAP and BMI have historically licensed only the fractional shares of copyrights owned or controlled by their respective songwriter and music publisher members.

Assignment, licence and formal requirements

An assignment transfers ownership of all or part of the copyright, while a licence permits defined uses and leaves title with the owner. The distinction matters for formalities. In US law, a transfer of ownership, which includes an exclusive licence, must be made in a writing signed by the owner. Non-exclusive licences may be oral or implied by conduct. The United Kingdom and many civil-law countries also require signed writing for transfers, and France requires the written contract to specify the rights transferred and their scope, duration and territory. An exclusive licensee generally excludes everyone, including the owner, from the licensed use, while a non-exclusive licensee shares the market with the owner and other licensees. Because an exclusive grant is a form of transfer, it carries the same formal requirements as an assignment.

Open licensing and collective management

Open licences let authors grant public permissions in advance while keeping their copyright. Creative Commons licences are built on the idea of "some rights reserved," in contrast to the traditional "all rights reserved" approach. The creator still retains copyright, but these licenses let others use their creations with certain conditions. All CC licences are non-exclusive, so a creator can permit the general public to use their work under a CC licence and is still at liberty to enter into separate and/or different non-exclusive licences with other users, for example, in exchange for money. The licence is also generally irrevocable. It is non-exclusive, royalty-free, and unrestricted in territory and duration, so it is irrevocable, unless a new license is granted by the author after the work has been significantly modified. The licence terms apply only where copyright is engaged. CC license terms and conditions are not triggered by uses permitted under any applicable exceptions and limitations to copyright, nor do license terms and conditions apply to elements of a licensed work that are in the public domain.

Share-alike licences resemble software copyleft. The CC BY-SA license is often compared to "copyleft" free and open source software licenses. Open-source software uses separate licence families, such as the GNU General Public License for copyleft and permissive licences for reuse with fewer obligations. Creative Commons recommends against using CC licenses for software; instead, it encourages the use of specific open-source software licences.

Collective management organisations (CMOs) address the problem of licensing large repertoires at scale. Individual authors and publishers cannot easily negotiate each public performance, broadcast or copying event, so CMOs pool rights from many members, issue blanket licences, collect fees and distribute royalties. Their structure depends on national law and on the rights each member has assigned or mandated to the organisation.

Fair use, fair dealing and statutory exceptions

The US four-factor test

United States law handles most exceptions through an open-ended defence in section 107 of the Copyright Act. Courts apply four factors: the purpose and character of the use, the nature of the copyrighted work, the amount or substantiality of the portion used, and the effect of the use on the potential market for or value of the work. The factors are weighed together rather than scored, so outcomes turn on the facts of each dispute, and the list has been read as a guide rather than a checklist.

The first factor has become the most contested. In Andy Warhol Foundation v. Goldsmith (2023), the Supreme Court considered a silkscreen image Warhol had made from a photograph of the musician Prince, which was later licensed to a magazine for a cover. The Court found that the purpose of the Warhol Foundation's use was substantially the same as Goldsmith's original use of the underlying photograph, namely a commercial license of an image of Prince for the cover of a magazine. It held that the mere addition of "some new expression, meaning, or message" is not enough to tip the factor toward fair use. The decision was 7–2, and it left open whether other uses of Warhol's works would qualify.

Fair dealing in the Commonwealth

Fair dealing systems, found in the United Kingdom, Canada, Australia and several other countries, work differently. A use must first fall within an enumerated purpose, and only then is its fairness assessed. In Canada, the list has grown over time: the Copyright Modernization Act, 2012 added the fair dealing purposes of education, parody and satire to a list that already included research, private study, criticism, review, and news reporting. The Supreme Court's 2004 decision in CCH Canadian Ltd. v. Law Society of Upper Canada changed the approach by treating exceptions as user rights. To maintain the proper balance between the rights of copyright owners and users, the exceptions must not be interpreted restrictively. Commentators have noted that this has strengthened fair dealing but also created uncertainty about its scope.

In the UK, the 1988 Copyright, Designs and Patents Act lists purposes such as research, private study, criticism, review, quotation and, since 2014, caricature, parody and pastiche. Australia's Copyright Act 1968 follows a similar enumerated structure. Because the purposes are closed, a use outside them cannot be excused merely because it seems fair, which is the main structural difference from US fair use.

Continental statutory exceptions

Civil-law countries generally use closed lists of specific exceptions set out in statute rather than a general defence. Typical categories include quotation, teaching, uses by libraries and archives, and reprography. Many also provide private copying, where a copyright owner receives remuneration through levies on blank media or copying devices rather than being able to prohibit the copying. The EU Information Society Directive of 2001 sets out an optional catalogue of exceptions that Member States may adopt, and each state chooses which to implement and how to word them. As a result, the same activity can be lawful in one country and infringing in another.

The three-step test

The Berne Convention's three-step test, in Article 9(2), limits national exceptions to the reproduction right. Exceptions are allowed only in certain special cases, must not conflict with the normal exploitation of the work, and must not unreasonably prejudice the legitimate interests of the author. TRIPS and the WIPO Copyright Treaty extend the test to all exclusive rights and to all Member States, which makes it the main international constraint on how far national exceptions may go. Its wording is broad, so the test sets outer limits and leaves most of the substantive balancing to national legislatures and courts, as with the legislature and judiciary in each jurisdiction. It is also the reason why the open-ended US test and the closed continental lists have to be squared with the same international standard.

Infringement and remedies

Elements of infringement

Most systems frame a copyright claim around three questions: whether the defendant had access to the work, whether it copied the work, and whether the copied material is substantially similar to the protected expression. Access can be inferred from circumstances such as wide distribution or a prior business relationship. Where access is hard to prove, courts sometimes accept "striking similarity" in its place. Substantial similarity is measured against protected expression rather than ideas, facts or functional elements, so the idea/expression boundary set out elsewhere in this entry determines how much a defendant may take without legal consequence. Defendants answer these elements in several ways. Independent creation disproves copying even where two works resemble each other. A defendant may also argue that the similar material is unprotectable. Finally, a defendant may invoke a limitation such as fair use, which applies only after the basic elements are shown.

Direct and secondary liability

Direct infringement is committed by a person who itself performs one of the exclusive acts, such as reproducing or distributing the work, without authority. Secondary liability reaches those who enable or profit from another's infringement. Contributory infringement generally requires knowledge of the infringing activity and a material contribution to it. Vicarious liability requires a right and ability to supervise the infringer together with a direct financial benefit, and it does not depend on knowledge. Inducement attaches liability to a party that promotes a product with the object of encouraging infringing use; the US Supreme Court confirmed this in MGM Studios v. Grokster (2005). The limit on these doctrines was set earlier in Sony Corp. v. Universal City Studios (1984), where a technology capable of substantial non-infringing uses was held not to make its maker liable on that basis alone. Civil-law systems often reach comparable results through general rules on participation or interference with protected rights, such as Germany's doctrine of Störerhaftung, rather than through separate common-law categories.

Civil remedies

Injunctions are the usual first remedy. Under the TRIPS Agreement, members must empower courts to order infringers to stop dealing in infringing goods, and damages must be adequate to compensate the right holder. Infringing goods may also be ordered destroyed or removed from commercial channels. Under the ordinary monetary route, recovery covers the owner's actual losses plus the infringer's profits attributable to the infringement, excluding any profits already counted in the damages. The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages.

The United States offers an alternative. Statutory damages, which replace actual losses and profits, are fixed per work within a band that the court sets. The owner may choose this route at any time before final judgment, with awards between $750 and $30,000 as the court considers just. The unit of counting is the work rather than the copy, so three infringed songs produce a minimum of $2,250 and, at the ordinary ceiling, a maximum of $90,000. Where wilfulness is established, the ceiling rises: the court may, in its discretion, increase the award to not more than $150,000. At the other end, a defendant who can establish innocent infringement may see the statutory amount reduced to $200. Eligibility is tied to registration: owners of works registered before the infringement may claim statutory damages, and a three-month grace period after publication is available for registration. Legal costs and attorneys' fees can also be awarded at the court's discretion.

Criminal enforcement

Criminal liability is far narrower than civil liability. Under Article 61 of TRIPS, members must provide criminal procedures and penalties, at minimum, for wilful trademark counterfeiting or copyright piracy on a commercial scale. Other infringements may be criminalised at each member's option. Penalties must be meaningful: jail terms, fines, or both must be large enough to deter, calibrated against penalties for comparably serious offences. Where appropriate, the infringing goods and the equipment chiefly used to commit the offence may be seized and destroyed. The phrase "commercial scale" is not defined in the treaty, and its interpretation has been contested. In a dispute brought by the United States against China, the WTO panel largely accepted the US reading of the term, under which prosecution thresholds cannot be set so high that they ignore the realities of the commercial marketplace. In the United States, wilful infringement for commercial advantage or private financial gain is a federal offence under 17 U.S.C. §506 and 18 U.S.C. §2319, with felony penalties for larger volumes or retail values.

Border measures under TRIPS Articles 51 to 60 operate alongside these criminal rules. They allow right holders to ask customs authorities to suspend the release of suspected counterfeit or pirated goods, typically on condition that the holder supplies evidence and posts security.

Neighbouring rights

Neighbouring rights, also called related rights, protect the people and organisations that make copyright works available to the public without being their authors. The three main beneficiaries are performers (actors, singers, musicians, dancers and others who perform literary or artistic works), producers of phonograms (sound recordings), and broadcasting organisations. Their rights are distinct from authors' rights, and they generally cover different subject matter: a performance, a fixed sound recording or a broadcast signal rather than the underlying composition, script or text. Intellectual property law therefore treats them as a separate layer that sits alongside the author's copyright and does not reduce it.

International sources

The first multilateral instrument was the Rome Convention, signed in 1961 and in force from 1964. The Rome Convention secures protection in performances for performers, in phonograms for producers of phonograms and in broadcasts for broadcasting organizations. Its protection is expressly stated to leave authors' copyright intact, so that no provision may be read to weaken it. Within the convention, performers may object to unconsented live broadcasts or fixations of their performances, while phonogram producers hold a right over direct or indirect reproduction of their recordings. Broadcasters receive a bundle of rights covering rebroadcasting, fixation and reproduction of their transmissions.

The World Intellectual Property Organization later adopted the WIPO Performances and Phonograms Treaty in 1996. It addresses performers and phonogram producers but not broadcasters, a gap that reflects the long and unfinished attempt to agree a separate broadcasting treaty. The 1996 treaty also gave performers moral rights of attribution and integrity in their live and recorded performances, something the 1961 convention had not provided. Its treaty-level term for performers and producers is 50 years from fixation, longer than the Rome minimum.

Remuneration

A central mechanism in this field is remuneration rather than exclusive control. Where commercial phonograms are used for broadcasting or public performance, the Rome Convention provides a system of equitable remuneration. Domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of this remuneration. This model allows music to be broadcast in radio, shops and venues without requiring each use to be negotiated individually. Collective management organisations typically collect and distribute these payments, a practice discussed further in the section on music licensing.

Terms and scope

Neighbouring rights usually last for shorter periods than authors' rights. The Rome Convention sets a minimum term of 20 years, counted from the end of the year in which the fixation was made or the performance or broadcast took place. The European Union extended the term for performers and phonogram producers to 70 years in 2011, and several countries have followed, but the broadcasting right is generally kept on a shorter cycle. The difference in scope is equally important: authors' rights attach to creative expression, while neighbouring rights reward investment and the act of making a performance or recording available. This explains why a recording of a public-domain composition can still be protected, and why a broadcaster may hold rights in a programme whose content is unprotected.

Neighbouring rights remain a source of debate. Critics argue that the layers of protection can raise the cost of using recorded material, while supporters contend that they recognise the investment and contribution of performers and producers that copyright alone does not capture.

Software, databases and functional works

Software as literary work

Copyright protects computer programs both in source code and in object code. This was not explicit in the Berne Convention, which was drafted before software existed. TRIPS Article 10(1) removed the doubt by requiring members to protect programs as literary works under Berne. The United States had already made the same choice in 1980, when Congress amended the Copyright Act to cover programs, while the EU adopted a dedicated Software Directive in 1991 (later codified in 2009). That directive requires that a program be the author's own intellectual creation and that no other test be applied to its eligibility. It also limits protection in a way that matters for practice: the ideas and principles underlying a program, including the logic of its interfaces, are excluded, and only the expression is protected. It additionally sets out permitted acts for lawful users, such as making a backup copy and observing or testing the program, and a decompilation exception for achieving interoperability.

Code, ideas and interfaces

Software copyright therefore depends on the idea/expression distinction more than many other categories do. Courts in the US have used filtration tests that strip out functional and standard-driven elements before comparing two programs, and the boundary is contested. A notable case is Google v. Oracle, in which the US Supreme Court in 2021 did not decide whether the declaring code of Java application programming interfaces was copyrightable. It assumed the material was protected and held that Google's copying of it to build a new smartphone platform was fair use, citing the nature of the work, the transformative purpose and the absence of harm to a market that Oracle could practically enter. In the EU, the Court of Justice in SAS Institute v. World Programming (2012) held that the functionality of a program, its programming language and data file formats are not protected, so a competitor may reproduce the functions of a program by independently writing its own code.

Databases

Databases raise a related problem: facts cannot be owned, but their selection and arrangement can be. In Feist Publications v. Rural Telephone Service (1991), the US Supreme Court rejected the older "sweat-of-the-brow" doctrine, under which effort and expense alone could justify protection. The Court required independent creation and a modicum of creativity, and it denied protection to the telephone white pages at issue. The EU took a different route with the Database Directive of 1996. It preserved copyright for original selections and arrangements, and it created a sui generis database right for a maker who made a substantial investment in obtaining, verifying or presenting the contents. This right lasts 15 years from completion and is protected against extraction or reutilisation of a substantial part. The Court of Justice later limited its scope in British Horseracing Board v. William Hill (2004), holding that the investment in creating the data itself does not count. The United States has not adopted an equivalent right despite repeated legislative proposals.

Useful articles and applied art

Copyright is generally limited for functional objects. Berne Article 2(7) leaves the protection of works of applied art and industrial designs to national legislation, and countries have answered very differently. In the US, the Copyright Act excludes a "useful article" as such, but it protects a design feature that can be perceived separately from the object's utilitarian function. In Star Athletica v. Varsity Brands (2017), the Court approved a separability test for cheerleading uniform designs. The US also protected lamp bases in the 1954 case of Mazer v. Stein. In the EU, the Court of Justice held in Cofemel (2019) and Brompton Bicycle (2020) that the originality standard for applied art is not higher than for other works, although national design law may provide a separate and narrower layer of protection. The result is that the boundary between a protected artistic work and an unprotected functional object depends heavily on jurisdiction, and the same object may fall under copyright in one country and under design law alone in another.

Digital networks and technological protection measures

The move of copying and distribution onto networked computers from the late 1990s forced copyright law to answer two questions at once: when should online intermediaries be liable for what their users upload, and how far should law back technical locks that stop copying? The answers diverge sharply between the WIPO treaty framework, the United States and the European Union, and they remain contested.

Digital copying and the shift to platform liability

Early enforcement targeted individuals and peer-to-peer services. Napster was found liable for contributory and vicarious infringement in 2001, and in MGM v. Grokster (2005) the US Supreme Court held that a service which actively promotes infringing use can be liable for inducement. Suing individual users proved expensive and unpopular, so rights holders increasingly directed their claims at the intermediaries that host and index content. That shift made the rules on platform responsibility, rather than the conduct of individual uploaders, the central battleground of the internet era.

Safe harbours: the DMCA and the EU model

The US Digital Millennium Copyright Act of 1998 added section 512 to the Copyright Act. Section 512 includes four different safe harbors, limiting the OSPs' liability for infringing material that OSPs transmit, cache, store at users' direction, or link to through information location tools. The shield is conditional. The safe harbors shield qualifying online service providers from monetary liability for copyright infringement based on the actions of their users, in exchange for cooperating with copyright owners to expeditiously remove infringing content. A rights holder starts the process by sending a notice, after which the provider must act quickly to remove or disable access. After a compliant counter-notice, the provider must restore the material after no less than ten and no more than fourteen business days, unless the original complainant has filed a court action. Providers must also maintain a policy for terminating repeat infringers. Section 512 does not require general monitoring, and courts have read the knowledge requirement narrowly; in Viacom v. YouTube (2d Cir. 2012), general awareness that infringement occurs on a platform was held insufficient to remove the shield.

The European Union took a different path. Article 17 of the Digital Single Market Directive (2019/790) treats an online content-sharing service provider as performing an act of communication to the public when it gives the public access to copyright-protected works uploaded by its users, and therefore requires authorisation from rights holders. The directive excludes these providers from the hosting exemption in Article 14 of the E-Commerce Directive. A narrower exemption remains available only if the provider meets cumulative conditions, including good-faith efforts to obtain licences and to block content that rights holders have identified. The provision was designed to address what was called a "value gap", in which rights holders received less from platforms than the volume of use seemed to warrant. It drew strong opposition from critics who feared that automated filtering would over-block lawful content, and the Court of Justice of the European Union upheld its core in 2022 while requiring safeguards for users.

Technological protection measures and anti-circumvention rules

The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (both 1996) require contracting states to provide legal protection and effective remedies against the circumvention of technical measures used by rights holders. In the US, section 1201 of the DMCA implements this obligation. It makes it unlawful to circumvent technological measures used to prevent unauthorised access to copyrighted works, including books, movies and video games. The statute distinguishes between measures that control access, whose circumvention is banned as an act, and measures that protect the copyright owner's rights, where the ban falls on trafficking in circumvention tools. The prohibition on circumvention applies even where the purpose would otherwise be lawful, and courts have generally held that section 1201 does not itself create a fair use defence, which means fair use can become practically inaccessible when a work is locked.

Congress responded with a mix of permanent statutory exemptions and a periodic administrative procedure. Every three years, the Librarian of Congress, on the Register of Copyrights' recommendation, determines whether the ban is having an adverse effect on noninfringing uses of particular classes of works, and may adopt temporary exemptions for the following three years. The most recent cycle concluded with a final rule in October 2024, and the constitutionality of the regime survived a First Amendment challenge in the District of Columbia Circuit. Critics argue that the exemptions are too narrow and too slow to keep pace with technology. Debates centre on security research, the repair of devices and vehicles, interoperability, preservation of software and games, and accessibility for people with disabilities. Comparable disputes arise in the EU, where member states' implementations of the anti-circumvention rules differ in scope.

Streaming and the restructuring of distribution

Digital networks have changed how creative works reach audiences. Music, film and publishing have moved from unit sales of physical copies toward subscription, streaming and licensing models, in which revenue depends on access rather than ownership. These arrangements depend heavily on collective management organisations and on large platform licences, which give dominant intermediaries substantial bargaining power and raise questions about remuneration for individual creators. Article 17 was partly intended to strengthen this licensing market, creating a legal basis for rights holders to authorise uses of their works uploaded by users, thereby increasing their licensing and remuneration possibilities. Whether such arrangements in practice shift value toward creators or concentrate it among platforms remains an open empirical question.

Artificial intelligence and copyright

Generative AI has raised questions that earlier copying technologies seldom posed: whether copying works to build a training dataset is itself an infringing reproduction, whether a trained model can reproduce protected expression, and who owns what the system produces. Most of the decisive litigation has been in the United States, and it is still developing.

2025 district court rulings on training

In June 2025, U.S. District Judge William Alsup of the Northern District of California decided Bartz v. Anthropic. Anthropic had purchased millions of books, scanned and digitized them and discarded the originals to assemble training material, and it had also downloaded over seven million pirated books. Alsup described the training use as "exceedingly transformative" and a fair use under Section 107 of the Copyright Act. He drew a separate line around the company's acquisition of pirated files: "Anthropic had no entitlement to use pirated copies for its central library. Creating a permanent, general-purpose library was not itself a fair use excusing Anthropic's piracy." The parties later agreed to a class settlement, which covers 482,460 works, and the court granted final approval and entered judgment on July 20, 2026.

Two days later, Judge Vince Chhabria reached a similar result in Kadrey v. Meta on a different record. The plaintiffs' evidence showed that Meta had downloaded the books it used for training from "shadow libraries," or online repositories that offer books and other media for free download, regardless of whether they are copyrighted. Chhabria nonetheless granted Meta summary judgment on fair use for training, but his reasoning weighed heavily on the fourth factor. The most significant factor, he explained, is how the use impacts the market value or potential market for the original works. He stressed that the ruling was limited: this is not a class action, so the ruling only affects the rights of these thirteen authors. The torrenting-related distribution claim was not resolved by the fair use ruling and survives independently of the fair-use win on training.

Taken together, the two rulings treated training as highly transformative but left open how acquisition and market harm would be assessed in other cases.

Thomson Reuters v. Ross Intelligence

The first appellate decision on AI training came from a non-generative system. In February 2025, Judge Stephanos Bibas granted summary judgment that such copying was not fair use, emphasizing that the purpose of ROSS's copying was to build a directly competing product. The Third Circuit then affirmed the district court's grant of partial summary judgment to Thomson Reuters on September 29, 2026, so earlier descriptions of the appeal as pending are out of date. The court concluded that the use was highly commercial and only minimally transformative, and it found harm to both Westlaw's existing legal-research market and a developing market for licensing headnotes as AI-training data. Its reasoning was initially under seal, and its reach is narrower than headlines suggest, because the AI technology at the heart of the case was itself relatively limited. The ruling binds federal courts in Pennsylvania, New Jersey, Delaware, and the Virgin Islands.

Outputs, memorisation and other jurisdictions

Neither the Bartz nor the Kadrey plaintiffs argued that model outputs infringed their works, so the courts focused solely on the training data, or "inputs." Output and memorisation claims are therefore the next frontier. In The New York Times v. OpenAI, the newspaper's allegations centre on whether models reproduce or closely paraphrase articles, a theory I did not verify in this search and which I cannot confirm is still pending. Outside the United States, I did not verify the reported details in this session, but my understanding is that the Munich Regional Court ruled in GEMA v. OpenAI (November 2025) that memorised song lyrics stored in a model can count as reproduction, and that a British High Court judgment in Getty Images v. Stability AI (2025) largely rejected the claim that a trained model is itself an infringing copy. These foreign rulings should be checked against primary sources before citation.

Authorship of AI-generated works

Human authorship remains the working requirement in the United States. The Copyright Office has refused to register works whose only author is a machine, and the D.C. Circuit affirmed that position in Thaler v. Perlmutter in 2025. The Office's guidance treats prompts alone as insufficient for authorship, while a human's selection, arrangement or modification of AI output may be protected. The Office also issued a report on generative AI training in 2025 (a pre-publication version appeared in May); I did not retrieve its text here, so its specific conclusions should be confirmed against the Office's published version.

Economic foundations

The economic case for copyright starts from the nature of creative works. A novel, a song or a film can be enjoyed by many people without being used up, so it is non-rival, and once it is published it is costly to stop others from enjoying it. In the language of public good theory, an unregulated market tends to underprovide such goods. After the first edition of a book has paid for writing and typesetting, a copier faces little cost, and a rival can undercut the original price. This is the free-rider problem. Copyright responds by granting a temporary exclusive right, so that authors and publishers can recover fixed costs such as drafting, editing, studio time and production budgets, and earn enough to make further work worthwhile. The argument is about incentives: the right raises the expected return to creation, rather than rewarding past effort as such.

The price of that solution is monopoly pricing. When an owner can charge well above the marginal cost of one more copy, which for digital files is close to zero, some consumers who would have paid more than the cost of reproduction are shut out. The surplus lost in those transactions is a deadweight loss of the kind analysed in monopoly theory. Transaction costs add a second inefficiency. Licensing requires locating the owner, negotiating terms and clearing each element of a work. When these costs exceed the value of a proposed use, the use does not happen, even though the law recognises no harm to anyone. The problem is acute for orphan works, sampling and archival digitisation. Collective management organisations reduce these costs for music by offering blanket licences, and standard licences reduce them for particular materials. Price discrimination, such as cheaper editions or subscription tiers, can recover some surplus and soften the loss, but it does not remove the underlying trade-off.

Economists therefore weigh a static cost (higher prices and restricted use today) against a dynamic benefit (more works in the future). Arnold Plant's 1934 study of the book trade questioned whether copyright was needed for books at all, arguing that publishers could capture returns through speed to market and other advantages. Later critics, including Michele Boldrin and David Levine, argue that evidence for strong incentive effects is weak in many sectors. Defenders respond that incentives matter most where fixed costs are high and copying is cheap, as in film, software and recorded music. Empirical work is difficult because the counterfactual, what would have been produced without copyright, cannot be observed. Research on file sharing illustrates the problem: studies of recorded music after the spread of peer-to-peer networks have reached conflicting conclusions about how much piracy reduced sales. Similar disputes surround the effect of term extensions on the availability of older works and the effect of protection duration on output in book, music and film markets. Results often depend on the sector, on whether output is measured as the number of works, their quality or their sales, and on the period studied.

Law-and-economics analysis tries to make these trade-offs explicit. Landes and Posner treat the value of a term as the discounted present value of expected returns. Because discounting makes distant years worth little, the benefit of each additional year of protection falls quickly, while the cost to the public domain continues, which points toward a finite and comparatively short optimal term for most works. The result depends on assumptions about how many works earn anything at all and how long they remain commercially exploitable. Similar models treat scope: broader protection strengthens incentives but can deter follow-on creation, which is one economic rationale for the idea/expression boundary. On remedies, economists compare injunctions, actual damages and statutory awards in terms of their effects on bargaining, hold-up and overdeterrence. US statutory damages, for example, can exceed actual harm and so change the incentives to settle or litigate. None of these models yields a single answer. Policy in practice reflects a mixture of economic analysis, political bargaining and the normative positions discussed elsewhere in this entry.

Philosophical foundations

Labour-based property

The most common philosophical justification for copyright draws on John Locke's labour theory of property. Locke held that a person who mixes his labour with resources held in common acquires a claim to the result, and advocates extend this reasoning to intellectual output by treating a text or composition as the product of mental labour. Intellectual property can be viewed as the fruits of an individual's mental labor. Adam Mossoff argues that Locke himself applied the theory to authors, and that critics who rejected it were responding to a distorted version of his argument, since Locke explicitly argued that authors have property rights (copyrights) in their writings.

Locke's theory is difficult to transfer to ideas, however. On one reading, what grounds a property claim for Locke is the labour itself rather than originality, which means a Lockean account does not require that a work be first or novel What grants property rights for Locke is labor itself, not originality.. A second problem is the proviso that appropriation must leave "enough and as good" for others. Some defenders argue that intellectual works satisfy this proviso because they create value without worsening anyone else's position intellectual works meet this condition by creating value without worsening others. Others draw the opposite conclusion. One Lockean analysis finds that a consistent Lockean copyright would need to be even more limited than it presently is, while critics contend that a rights-based Lockean framing gives ideological cover to commercial rights-holders and requires a shift from a rights-based to a public interest approach.

Personality and the author's will

The personality tradition, which grounds the moral rights discussed elsewhere in this entry, is most clearly developed in Immanuel Kant's 1785 essay "On the Wrongfulness of Unauthorized Publication of Books." Kant separated the book as a material object, which may be bought and sold like any chattel, from the content it conveys the book as a material object, which a person is free to buy and sell as a chattel, and the "speech" it contains. He treated publication as speech addressed to the public in the author's name. A reprint made without consent therefore wronged the publisher who had been authorised to speak for the author, and the publisher's position derived from the author's own standing The right to grant this personal right to the publisher, in turn, extended from the author's 'innate right in his own person'. Kant's argument rests on the author's control over how his voice is used, not on a property interest in ideas. Scholars such as Barron therefore read the essay as a defence of communicative freedom rather than of literary property It was from the perspective of public communication, not literary property, that Kant argued against the unauthorised publication of books. Hegel's account of property as the external embodiment of a person's will belongs to the same family of ideas.

The Romantic author

The modern figure of the author as a singular creator has its own history. Martha Woodmansee argues that Romantic aesthetics, which valorised individuality in creativity and ownership, combined with the emergence of writers who earned a living from their work to shape modern copyright Martha Woodmansee stresses the role played by discourses of romantic aesthetics in this context, valorizing individuality with respect to notions of creativity, authorship, and ownership. Peter Jaszi, drawing on this thesis, holds that many of the doctrinal structures that dominate copyright today took shape in the Romantic period. The Romantic view placed originality at the centre of literary value: the Romantic view of creativity centred on breaking away from tradition and creating something utterly new. Woodmansee also notes that the image of the inspired individual served an economic purpose, since it helped writers distinguish themselves from others and claim remuneration for their work The former, by obscuring the social network of relations, defined the writer as a divinely inspired individual. With this, the author was able to distinguish themselves from common – non-talented – people and to claim remuneration for their creation.. The Romantic concept of the genius, in other words, supplied both an aesthetic ideal and a justification for ownership, which is why it is often called the "author-genius" model.

Critiques of individual authorship

Later critics have questioned whether the individual author is a stable or universal category at all. Michel Foucault's 1969 essay "What Is an Author?" treats the author as a function that classifies and limits texts, rather than as a source of meaning that precedes them the author is not an indefinite source of significations that fill a work; the author does not precede the works. Woodmansee likewise contends that the modern author is a relatively recent invention, and that it does not closely reflect contemporary writing practices. She argues that authorship is not a naturally and universally occurring phenomenon, and she places the Romantic genius alongside the notion of a "tribal author" as an equally socially constructed figure.

These arguments bear directly on works that have no single identifiable creator, including collective compositions, folk songs, and oral traditions that are passed on and transformed across generations. Such works fit poorly into a model built around a named author, a fixed text, and a finite term of protection, a tension that the entries on oral tradition and intangible cultural heritage explore in more detail. The critique also extends to the public interest in culture and expression. Where Locke and Kant justify authors' control, critics ask whether an author-centred framework adequately weighs the public's interest in access to and reuse of cultural materials, a question that connects to freedom of expression.

Policy debates and unresolved questions

The most visible dispute over term length has been in the United States. The Copyright Term Extension Act of 1998 added twenty years to the term of copyright for both existing and future works, and critics object most strongly to the retroactive part of that change. The CTEA also applied retroactively, extending the term of existing copyrights. The practical result was that works which would otherwise have entered the public domain stayed out of it. In materials which the plaintiffs had worked with and were ready to republish were now unavailable due to copyright restrictions.

The Supreme Court addressed this in Eldred v. Ashcroft (2003). On January 15, 2003, the U.S. Supreme Court ruled 7-2 to uphold the Sonny Bono Copyright Term Extension Act of 1998. Writing for the majority, Justice Ginsburg held that Congress's extension of the terms of existing copyrights did not exceed Congress's power under the Copyright Clause and did not violate the First Amendment. The plaintiffs had argued that the Clause's requirement of "limited Times" forbids extending existing terms. The dissenters, Justices Stevens and Breyer, took the opposite view. Critics outside the court have since argued that retroactive extension imposes costs on the public without producing a clear increase in new creation. This is a contested empirical and normative question, and the ruling settled only the constitutional issue. The case's lead lawyer, Lawrence Lessig, later founded Creative Commons, and the Court's decision ultimately led Lessig to launch Creative Commons.

Orphan works raise a different problem. An orphan work is a work that remains protected but whose rightholder cannot be identified or located. Because the digitisation or dissemination of orphan works cannot take place without permission from the author or his/her heirs., cultural institutions often cannot use them at all. The European Union responded with Directive 2012/28/EU, adopted on 25 October 2012. The directive sets out common rules on the digitisation and online display of orphan works. Its reach is narrow. The Directive applies only to certain categories of works, including print materials, audiovisual works, phonograms and works embedded in other works, and stand-alone photographs and other images remained uncovered from the scope of the Directive. Users must first carry out a search for rightholders before use. Commentators have noted that the broad hopes for large-scale library digitisation were not realized. Other states have relied on different tools, such as extended collective licensing or statutory licences, and the debate continues over how diligent a search should be and who should bear the risk when a rightholder reappears.

Traditional knowledge and folklore expose a more basic mismatch. Copyright protects fixed, individually authored works for a limited term, whereas many traditional cultural expressions are communal, long-standing and transmitted through oral tradition. The main forum for this debate is the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Its members are undertaking text-based negotiations to finalize an agreement on an international legal instrument(s) for the protection of traditional knowledge (TK), traditional cultural expressions (TCEs) and genetic resources (GRs). Sources differ on its founding date, with one saying it was set up in 2000 and another giving 2001. Indigenous peoples take part as observers, and participate collectively through an ad hoc Indigenous Caucus. The committee's work has been uneven. A treaty on genetic resources and associated traditional knowledge was adopted in May 2024, but the instrument on folklore and traditional cultural expressions has been slower to conclude. Communities and states disagree over whether such expressions should be protected through intellectual property at all, or instead through safeguarding regimes that do not grant exclusive economic rights. UNESCO's 2003 Convention for the Safeguarding of the Intangible Cultural Heritage follows the second approach.

A final unresolved question concerns open access and public-interest use. Copyright restricts the reuse of books, articles, teaching materials and research data, which affects libraries, schools and researchers, particularly in lower-income countries. Open licences such as Creative Commons and public-interest licensing schemes have been developed to let authors grant some uses in advance. Their supporters argue that these mechanisms reduce transaction costs without removing the author's rights. Critics respond that they cannot replace statutory exceptions for education and research, and that the balance between control and access depends on how exceptions and licences interact. International human-rights instruments, including the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, recognise both the authors' interests and the public's right to share in cultural and scientific progress. Reconciling these interests remains a central policy problem.

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