The Blurry Boundaries of Copyright


{3:54 minutes to read} My practice—and accordingly this blog—focuses on copyright, or at least on what we call The Blurry Boundaries of Copyright by Joshua Graubart “copyright” in the United States. However, “copyright” is only one segment of a broader spectrum called “intellectual property,” and—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.


Indeed—and just to illustrate the fuzziness of even the concept of “copyright”—what we commonly describe as “copyright” subject matter in the United States encompasses segments which much of the rest of the world labels “authors’ rights” (i) and “neighboring rights” or “related rights.” Copyright in the Anglophone world begins with 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 treaty on copyright protection, 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 to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; 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 incorporated into the TRIPS Agreement, the general intellectual property treaty to which countries who wish to enter the World Trade Organization (WTO) must adhere—more or less covers the “authors’ rights” subsegment. The keen-eyed, however, will note what is not covered: sound recordings; live performances of actors or musicians; computer programs; database compilations, to name a few examples. Many of these are covered under the rubric of “neighboring rights” or “related rights” in other countries’ laws, or are absorbed into “copyright” under US law.

But certain other categories do not easily fit in either the “authors’ rights” or the “neighboring/related rights” boxes. Among the most ambiguous is “industrial design,” a category which can include—among other things—fashion design, vehicle design, and furniture design. In a future post, I will discuss the difficulties of intellectual property protection for industrial design.

Joshua GraubartJoshua Graubart





(i) “Authors’ rights,” incidentally, usually includes a subsegment 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.”
(ii) Berne Convention, Art. 2(1).