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South Texas College of Law Houston
Page, Phillip E.

Copyright Law Outline
Professor Page
Fall 2013
–          Two Broad Theories of Copyright:
o   1) Economic/ Utilitarian Theory – provide an incentive to create works of art.  Dominant justification in the US. 
§  Fundamental Tension between creation and dissemination (incentives and access):  giving copyright owner more control over creation/ temporary monopoly raises prices and limits access to the work (eg, through higher prices)
·         Encouraging creation of new works a fundamental concern copyright law, but so is encouraging that the works be available to the public.
o   2) Natural Rights Theory – since creative works are the fruit of an individual’s labor, it is your property to control by virtue of your investment in the work.  Dominant EU theo.
–          History of Copyright
o   The 1909 Statute protected ALL writings of an author. But, the emergence of motion pictures, telephone, TV, radio, etc. in 1920 created a need for changes in copyright law.
o   Before digitization, under 1909 Statute, a work had to be published in order to be copyright protectable. But, digitization made it easier to protect copyright proprietors:
§  Law
§  Contract—
·         Until computers, this was a narrow avenue of protection b/c you couldn’t enter a K with that many people. Now, you can effectively have a K with individual users (users have to accept conditions before using website)
§  Practicalities–
·         Of doing it (photocopying a book would be difficult/expensive) so no one did it back then.
·         But, with digitalization, it was much easier/cheaper to do.
o   1978 Copyright Statute (current)—Important Changes:
§  You have copyright protection from the moment it is fixed.
§  Original works of authorship are copyright protectable—but it might or might not be “all the writings of the author.”
§  Copyright is divisible. Before 1976, one person had to be the copyright proprietor. After 1976, if you have the exclusive right to do something, you are the copyright proprietor of that right. Exclusivity is key.
§  Duration. If created after 1976à Life + 70 years.
·         Works made for hire can be copyright protected for 95 years from publication or 100 years from when it was created.
I.  Subject Matter and Standards
A.  Constitutional Limits:  “The Writings of Authors”
–          Main points: 
o   Copyright and Patent Clause: Art. I, § 8, cl. 8: “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.”   Thus, limitations on power:
§  Must be “to promote science and useful arts”
§  Must be for “limited times”
·         Not much teeth as Supreme Court upheld life + 70 years.  Eldred.
§  Rights only secured to “writings” to their “authors”.
o   1) “Author” = “an originator or maker” (Burrow-Giles) and “writing”= “any physical rendering of fruits of mind”— very broad definitions.
o   2) “Promote progress” defined broadly (includes commercial works—Bleistein)
o   3) Work need only low threshold of “originality” (some modicum of creativity/ intellectual effort)
o   4) No qualitative assessment of merits of art (Bleistein)
–          Case law
o   Burrow-Giles – photographer Sarony takes photo of Oscar Wilde, which is copied.
§  Held:  photographs are works of authorship within the Constitution.
§  Rejects arguments that photographs are not “writings”, and that photographs, since only a mechanical representation, not an original work of authorship.
·         Constitution’s “writings” interpreted broadly.  Other wordless works like maps protected at time of passage.
·         Photography involves creative choices which make Sarony an author.
o   Bleistein – color posters for circuses argued to be outside of copyright’s realm.
§  Holmes:  originality is a low threshold, & “promotion of useful arts” extends to commercial works.  Fact that this is “low” art shouldn’t matter—dangerous for courts to get into business of judging artistic quality outside “narrow and obvious limits.”
B.  Statutory Limitations
–          § 102(a) – copyrightable subject matter in “original works of authorship fixed in any tangible medium of expression [in which they can be perceived]”  Thus, three requirements:
o   a) “Works of authorship”
§  Section gives list of 8 types of works that are copyrightable—literary, musical, dramatic, PG&S, motion pictures, sound recordings, architectural works—but it is nonexclusive.
§  Thus, for a new medium, can argue either way:
·         On one hand, can note nonexclusivity of list, fact that copyright has historically been extended further and further, legislative history says didn’t want to “freeze” copyright, analogy to other types of works.
·         On the other, can say it’s not on the list (can draw negative inference), or that Congress should amend it if they want to extend copyright.
§  Literary Works: works other than audiovisual works.
·         Software is a literary work, so it is copyrightable.
·         Apple Computer: D’s software was designed to be Apple compatible. D doesn’t deny they copied, but claims Apple’s OS is not copyrightable. Issue is what parts of the computer software are copyrightable?
o   3 Levels of Protectable Language:
§  High level language: technical, but people can read it
§  Assembly Lang.: Mostly symbolic arrangements of tasks.
§  Machine Lang.: Binary object code; string of 0’s.
o   Definition of computer program: “A computer program is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”
o   Court held: Apple’s computer software is the operating system—set of instructions that tell computer how to work. Then, application programs we buy are used to do specific things. Since the def. of computer program applies = to applications & OS’sà An operating System is subject to copyright prot.
o   Apple’s OS is Apple’s innovative idea & ideas are not copyrightable. But, there are not other ways to configure this OS, so the court remands the issue of: what is the idea behind OS?
§  Semi-Conductor Chip Act—
·         Chips are tiny pieces of complex electronic circuitry (Copyright protection extends to wherever the software is embedded as long as its in a tangible medium—chip, ROM)
·         Problem: the chip was considered to be an industrial design and industrial designs are not protected by copyright.
·         Chip Act: 10 years of protection. Exempts innocent infringers from liability for use of unauthorized chips occurring before receiving notice of infringement.
§  Music—
·         Mechanical reproduction of music—piano roll case—led to 115.
·         Music is subject to compulsory license so once you’ve released a song to the public, someone can pay a statutory licensing fee & reproduce your song (this doesn’t apply to a book—someone else doesn’t get to record a book by paying a statutory licensing fee)
§  Drama—
·         Protected by copyright—drama is redundant of other literary works.
·         There are other limitations imposed on non-dramatic literary works that don’t apply to dramatic literary works.
§  Dance—
·         1976 Act included for the first time, dance & choreography.
o   Choreography can be fixed by recording it, making a v

–          § 101 “fixation” = there exists i) an “embodiment in a copy or phonorecord;”
 ii) “Sufficiently permanent to permit it to be perceived, reproduced … for more than a transitory period”
o   Copies v. phonorecords:  all tangible embodiments under § 101 are either copies or phonorecords.  Definitions:
§  “Copy” =  “tangible material object, other than a phonorecord, in which a work is fixed by any method now known or later developed, and able to be communicated, reproduced, etc., even if only with aid of machine”
§  “Phonorecord” = “material object in which sounds are fixed by any method now known or later developed…”
§  Examples:
·         A thumb drive with data on it, an original painting – copies
·         A musical score – copy
·         CD, piano sheet – phonorecords.
·         Live TV—is fixed if the recording is made AND it is transmitted simultaneously.
–          The work has to be fixed for more than a transitory period.
o   Improvisational artist could record himself.
o   Musician’s performance of a song, is he protected against someone who tapes & sells it?
§  Rule: Fixation has to be by or with the authority of, the copyright owner.
§  To protect artists against bootlegging:
·         § 1101: Protects against fixation (by D) or the trafficking of unauthorized captures of the musical performance.
o   This is not unconstitutional—justified by CC.
–          Case Law
o   White-Smith Music: D made perforated sheets/piano roll to put in piano to play the song. The piano rolls were not copies—they were not intelligible by looking at them, but rather, part of a machine.
o   Midway Mfg: D sells devices which modify the way images on P’s video games move on the screen. D claims the audiovisual aspects of P’s video games are not “fixed” in any tangible medium b/c every time someone plays the game, it appears differently; therefore, does not qualify for copyright protection.
§  Court held: The fixation requirement does not require the work to be written down—it just has to be capable of being reproduced with the aid of a machine or device. Also, just because you can manipulate it, does not mean it is not fixed. Here, the audiovisual aspects of the game were fixed—the audiovisual aspects (copyrighted material) is recorded in ROMS and may be reproduced with the aid of the microprocessor.
3.  The Idea-Expression Dichotomy
–          2 Aspects of Idea/Expression Dichotomy:
o   An idea is not copyrightable (Baker v Selden)
o   Merger Doctrine (Morrissey)
–          Main Points
o   1) § 102(b) – “copyright protection does not extend to any idea, procedure, process, system, method, operation, …” (Baker v. Seldon)
§  e.g: systems, methods, concepts, building blocks of expression
o   2) The “merger doctrine” – if uncopyrightable idea or system can only be expressed in a few ways, then the expression will not be protected.
§  E.g, Morrissey