Home /Blogs/The Blurry Boundaries of Copyright
August 17, 2023 | Copyright

The Blurry Boundaries of Copyright

post image

From literature and music to software and product design, the vast realm of creative expression encompasses a complex landscape of protection.  But where are the lines drawn?

Copyright is only one segment of a broader spectrum called “intellectual property.”  As is often the case with segments of a spectrum—the boundaries are somewhat arbitrary, and the subject matter can bleed across from one segment into the next.  Just so with intellectual property.

To demonstrate the lack of clarity surrounding the term “copyright,” it’s important to note that what we commonly refer to as “copyright” in the United States actually encompasses two categories known in most of the rest of the world as (1) “authors’ rights”(i) and (2) “neighboring rights” or “related rights.”

Copyright in the English-speaking world began with protection of literary property: books and pamphlets.  Over time, the realm of copyright expanded to cover maps, charts, graphic art, and more, as technology and culture required.  The current definition of works covered by the Berne Convention, the oldest and largest multilateral copyright treaty, includes:

“… every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works …; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works …; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.” (ii)

This definition, which is also a part of the TRIPS Agreement, the global intellectual property treaty that countries must follow to join the World Trade Organization (WTO), more or less covers the subcategory known as “authors’ rights.”

The keen-eyed, however, will note what is not covered:

  • sound recordings;
  • performances by actors or musicians;
  • computer programs;
  • database compilations;

to name a few examples.  Many of these are treated in other countries under the rubric of “neighboring rights” or “related rights” but in the United States are absorbed into “copyright” or – as with actors’ performances – are not protected at all.

Other categories do not easily fit in either the “authors’ rights” or the “neighboring/related rights” boxes.  Lawyers, judges and scholars have in the last few decades wrestled with the question of into which box, if any, to put a fragrance.  Among the most ambiguous categories is “industrial design,” a category which can include—among other things—fashion, vehicle, and furniture design, which different countries have placed in different boxes at different times.  The United States includes in the Copyright Act – though often not in common discussions of “copyright” – such categories as the design of semiconductor chips and vessel hulls.

Protecting your intellectual property is crucial, but edge cases require experience and expertise, especially when working across borders.  If you are a creator or a business looking to protect your intellectual property, seek counsel from an experienced attorney to ensure your rights are protected.


FN(i): The term “authors’ rights,” incidentally, usually includes a sub-segment called “moral rights,” which in the United States is so restrictive in scope as to raise the question   whether it exists at all except with respect to certain works of “fine art.”  17 U.S.C. § 106A

FN(ii): Berne Convention, Art. 2(1).

Joshua Graubart is admitted to practice law in New York, California, and New Jersey.
Photo by Patrick Tomasso on Unsplash
Share This