The first right, and by far the most important right that copyright grants owners over their work is the exclusive right to reproduce the work, otherwise known as the reproduction right. This is, in many ways, the gatekeeper right, because copyright is about copying. It's about the exclusive right to copy, which, in other words, is the exclusive right to make copies of the work, or the exclusive right to reproduce the work. Now, the first thing to note is, given the centrality of this right, it applies across the board to all categories of work. So if you have a work that is eligible for protection and has met the prerequisites of copyrightability, then you have the reproduction right, without any question. You don't have to worry about it not applying to your specific work. It applies across the board, and is today contained in section 106, subclause 1 of the Copyright Act. The reproduction right, put very simply, grants the copyright owner the exclusive right to reproduce the work in copies. Now, this is fairly straightforward to understand in lay terms. We all know what it means to reproduce something, we all know what it means to copy something. But it is perhaps, while the most important of copyright's exclusive rights, also its most complicated, as a legal doctrine, because copying isn't as simple as a legal matter as it is in our lay understanding. The complication arises, in practice, in figuring out when the right has actually been violated. It's not that big a problem knowing, as the copyright owner, what you can do with your work. The problem is figuring out when someone else has done something that violates or infringes your right. And here we have to draw a distinction, for the purposes of the reproduction right, between what is called literal copying and non-literal copying. Literal copying is fairly straightforward. So it's no problem to figure out that copying has happened when the copying is exact, or verbatim, or in other words, identical. Here we say the work has been copied in its literal form, there is literal copying. So what are some prominent examples? When you download something off the Internet, when you make a digital copy of it when you download it, you're not making any modifications to the work. You're copying it in its entirety, in its verbatim form. When you make an electronic copy, it's an exact replica. Similarly, when you photocopy something, when you take a document, a ten-page document and you photocopy all ten pages, the copying is exact. You're not making any modification, other than the medium. That is called verbatim copying, and the form of violation is called literal copying. There's no real complication here. We can figure out when exactly the copying has happened, and this generally isn't litigated when there's a download. The litigation happens in other complex components of the violation, but not with regard to figuring out whether there has been an actual copying, or whether the reproduction right has been violated on its face. That problem occurs when the copying isn't literal, when, in addition to copying, modifications are made. And why is this a problem? Because copyright law and the reproduction right takes the following approach. That a potential infringer or a defendant shouldn't be able to get away or get around the reproduction right by making some minor modifications or small modifications to the work. A little sentence here or a comma there shouldn't be enough to get around the reproduction right by simply saying, I didn't copy, I also made some modifications. So the reproduction right extends beyond literal copying, or verbatim copying, to what is called non-literal copying. And again, remember, this applies across the board to all categories of works. And when this happens, figuring out how much modification is permitted beyond which it is no longer considered a violation of the reproduction right becomes a complex question. And there we enter the doctrine of non-literal copying, or figuring out when exactly the reproduction right is violated through an act of non-literal copying. The law has, over a period of time, developed a special test, and this test is known as the substantial similarity test, which we'll get into in a minute. But very importantly, for now, you need to keep in mind, again, to recap, that the reproduction right can be violated either by literal copying, which is a verbatim reproduction. Or non-literal copying, which is a reproduction with some modification. And we have a very complicated two-step test that emerges in the latter category, but not with the former.
