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300 COPYRIGHTABLE SUBJECT MATTER
Copyrightable Subject Matter
As with trademark, the first question to ask with copyright is “what subject matter does
it cover?” By that we do not merely mean “what media forms does copyright cover?”
(Though, as you have seen, the copyright law we have now is very different than that of
1790.) Before we even get to the question of when copyright came to cover music,
recordings, or photographs, there is a deeper premise we have to understand. As the last
chapter made clear, copyright starts with a remarkable and dramatic choice, the choice
that Krause was unable to understand, but that Hugo and Fichte stressed. It does not
cover ideas or unoriginal compilations of fact. When I publish my book, the ideas and
facts within it go immediately into the public domain—no need to wait for my lifetime
plus another seventy years to get them. Copyright covers only the original expression.
This point comes with a corollary. There is no original expression in the design of a water
filter or a mousetrap. There may be genius, in the sense of making a technological leap
that is way beyond the current state of the art, but we do not look at the lightbulb and say
“Ah, the filament—that’s just so Edison! That’s just the way that he, and only he, would
express the idea ‘glow, sucker, glow!’” Focusing only on expression, copyright never
covers purely functional or useful articles, never covers discoveries or inventions. If they
are to be covered by rights at all, those are in the domain of patent.
This chapter will go through the criteria for copyrightable subject matter, many of
which, as we saw in Chapter 3, have a constitutional dimension. (As you consider them,
compare them to the limitations on trademark subject matter. Notice how the subject matter
limitations trace both the functional goals that the right is to fulfill and the need to limit the
ambit of the right in order to allow for the requirements of speech, debate and competition.
But notice also how those reasons do not explain all of the subject matter delineations—
and in some cases may be flatly contradictory to them.) We will look at
• the requirement of originality, meeting the Feist case again,
• the idea/expression (and idea/fact) distinction,
• the linked idea of “merger” where the expression merges with the idea and
therefore cannot be owned,
• the “useful articles” doctrine—which limits the reach of copyright on designs
that are both functional and expressive,
• the exclusion of “methods of operation” from copyright, and
• the requirement of fixation in material form.
But it is easy to get lost in the picky details of each subsection. As you will see,
many of these cases could be classified as dealing with multiple subject matter limitations.
When I refuse to extend copyright to the way an accounting method is implemented,
is that the idea/expression distinction, a method of operation or something else
altogether? The important question is the basic one, “Why do we have this limitation on
copyright’s subject matter? How does including or excluding this material further the
constitutional and statutory scheme?”
In addition, this section leads into another of the central and recurrent themes of the
book: the interaction between intellectual property and technology. This entire chapter, but
in particular the last two sections—on methods of operation and on fixation—begin a unit
dealing with copyright and software. The software unit is layered on top of the doctrinal
material of the course. We will be learning the rules about copyrightable subject matter,
infringement and substantial similarity, fair use, the interaction between copyright and
licenses—all subjects that transcend the technology. But at the same time many of those