Publication, Musical Compositions, and the Copyright Act of 1909: Still Crazy after All these Years

The copyright clause of the United States Constitution empowers Congress "to promote the Progress of Science and useful Arts, by Securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The purpose of copyright law is to strike a balance between the public's desire to have free access to information and authors' rights to protection of their private works. Common law copyright somewhat reflects this balance by providing the author with perpetual protection until first publication. Federal copyright law, however, with its more limited duration for protection, better balances these competing interests. Once the author "publishes" a work, he or she reaps personal benefits from distributing copies.

In return for these personal benefits, the author's rights to the work are automatically subject to federal copyright protection. Federal protection balances an author's rights against the public's desire to freely use the work by providing copyright protection of a shorter duration than the perpetual common law protection. The trigger event that extinguishes common law protection and activates the federal "balancing" scheme is "publication."