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Copyrights - 17 USC Section 103
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01/19/04
Sec. 103. Subject matter of copyright: Compilations and derivative
works
(a) The subject matter of copyright as specified by section 102
includes compilations and derivative works, but protection for a
work employing preexisting material in which copyright subsists
does not extend to any part of the work in which such material has
been used unlawfully.
(b) The copyright in a compilation or derivative work extends
only to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work,
and does not imply any exclusive right in the preexisting material.
The copyright in such work is independent of, and does not affect
or enlarge the scope, duration, ownership, or subsistence of, any
copyright protection in the preexisting material.
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
Section 103 complements section 102: A compilation or derivative
work is copyrightable if it represents an "original work of
authorship" and falls within one or more of the categories listed
in section 102. Read together, the two sections make plain that the
criteria of copyrightable subject matter stated in section 102
apply with full force to works that are entirely original and to
those containing preexisting material. Section 103(b) is also
intended to define, more sharply and clearly than does section 7 of
the present law [section 7 of former title 17], the important
interrelationship and correlation between protection of preexisting
and of "new" material in a particular work. The most important
point here is one that is commonly misunderstood today: copyright
in a "new version" covers only the material added by the later
author, and has no effect one way or the other on the copyright or
public domain status of the preexisting material.
Between them the terms "compilations" and "derivative works"
which are defined in section 101 comprehend every copyrightable
work that employs preexisting material or data of any kind. There
is necessarily some overlapping between the two, but they basically
represent different concepts. A "compilation" results from a
process of selecting, bringing together, organizing, and arranging
previously existing material of all kinds, regardless of whether
the individual items in the material have been or ever could have
been subject to copyright. A "derivative work," on the other hand,
requires a process of recasting, transforming, or adapting "one or
more preexisting works"; the "preexisting work" must come within
the general subject matter of copyright set forth in section 102,
regardless of whether it is or was ever copyrighted.
The second part of the sentence that makes up section 103(a)
deals with the status of a compilation or derivative work
unlawfully employing preexisting copyrighted material. In providing
that protection does not extend to "any part of the work in which
such material has been used unlawfully," the bill prevents an
infringer from benefiting, through copyright protection, from
committing an unlawful act, but preserves protection for those
parts of the work that do not employ the preexisting work. Thus, an
unauthorized translation of a novel could not be copyrighted at
all, but the owner of copyright in an anthology of poetry could sue
someone who infringed the whole anthology, even though the
infringer proves that publication of one of the poems was
unauthorized. Under this provision, copyright could be obtained as
long as the use of the preexisting work was not "unlawful," even
though the consent of the copyright owner had not been obtained.
For instance, the unauthorized reproduction of a work might be
"lawful" under the doctrine of fair use or an applicable foreign
law, and if so the work incorporating it could be copyrighted.
Last modified: April 20, 2006
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