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Copyright
South Texas College of Law Houston
Page, Phillip E.

Copyright Outline
 
I.       Introduction: The Landscape of Copyright
a.       The Importance of Copyright
i.        Protecting author’s rights helps encourage author’s to engage in writing new material. This expands the amount of material in the world and promotes learning. Cultural product is very important to society. Copyright is the only area of the law whose goal is to promote cultural significance.
ii.      The author can control the use of his product. This is a bribe to create new material.
iii.    Want to promote public access to the cultural product. Want law to encourage author share material with the world. Want to give control of the material to author and promote access to the material. These two goals need to be balanced.
iv.    In the European counties they think of copyright as a natural right. Creation of new material is a natural right. The US does not buy into that theory. We don’t like monopolies, but we will indulge in this one because it encourages the creation of new material.
b.      Copyright and Related Bodies of Law
i.        An Introduction to Copyright
1.      The law gives the publisher nothing in terms of copyright protection. The author is the only one who gets copyright protection. The person who sells the book gets nothing…
2.      The law has isolated a particular kind of creator to get a copyright. Many creative people don’t get any government protection. Why? Romantic movement – put a premium on the creative individual. There is not much soul searching that goes on in creating usable land in a marshy swamp. Copyright focus on creative (romantic) individuals. The law is based on the cultural ideals.
ii.      Federal Intellectual Property Law
1.      In General
a.       There is no grant of copyright by the government. It has never worked that way. The government does not issue copyrights. Registering copyrights is something that you might chose to do because of certain legal advantages. This is not part of the copyright coming into existence at all.
b.      In copyright, you cannot innocently infringe a copyright. To infringe a copyright, you have to make use of someone’s stuff. If you coincidently come up the same idea, both creators would have a copyright. As long as everything is original, this is an acceptable situation. You have to be shown to poach someone else’s stuff.
c.       You can get a copyright on things that look a lot like something else.
d.      Exclusively a federal regime.
2.      Patent Law
a.       Patents are hard to get, but it protects you against anybody who uses the same technology. This is a powerful monopoly.
b.      Exclusively a federal regime.
3.      Trademark Law
a.       In copyright law, as long as everything is original, this is an acceptable situation. You have to be shown to poach someone else’s stuff. This is not how trademark works. You are still liable for incidental copying.
b.      Trademark exists under federal and state law.
iii.    State Intellectual Property Law
1.      Unfair Competition and Trade Secrets
2.      Other State Law Theories
c.       History of Anglo-American Copyright Law
i.        The Beginnings to Donaldson v. Beckett (1774)
1.      The printing press started the notion of copyright law. The printing press could print many copies relatively inexpensively. The printing press would allow dissenting material about the crown to be spread to everyone. The church was also concerned. People could produce heresy and disseminate it readily. The church and the crown come together and come up with a regime that requires people to have permission to print stuff.
2.      1557 – stationers company. They made the investment in printing press. They were given sole power to print books.
3.      1710 – statute of Anne – first thing that looks like copyright. This statute was for the preventing the unauthorized printing and encouragement of learned men to write useful books. There was a system of formalities – registration protocols. You had to deposit a copy of the material. The statute provided for a 14 year copyright and it could be renewed for another 14 years. The writer had the ability to complain about the terms of the contract with the book seller. The plaintiff can get statutory damages for infringement. This is a lump of money that the plaintiff gets for prevailing and does not represent actual damages. The book sellers like the protection, but it did not last long enough. The book sellers resorted to common law copyright after the 28 years of the statute of Anne protection. The House of Lords ruled on the issue. It was the exclusive protection for published works. If the work was not published, the common law rule still applied. This created a line between stuff that is published and stuff that is unpublished.
ii.      From the Constitution to the Copyright Act of 1909
1.      The US constitution Article I, Section 8, Clause 8 – Congress shall have power… 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 discovers.
2.      The US law covered books and maps and charts. 1834 – Wheaton v. Peters – US Supreme Court ruled that copyright is the exclusive protection for published works. For unpublished works, the common law copyright still applied.
iii.    The 1909 Act
1.      General Provisions of the 1909 Act
a.       All kinds of new technology was being introduced in the 20th century. 1909 – thorough revamping of the copyright law. Copyright as of 1909 protected all writings. There was a big shift – copyright existed from the time of publication. For public speeches and plays you could register them and get protection. This was because writing is not the way that material is meaningfully exploited. This shows the particle side of copyright. When writing is not the way information is conveyed, writing is not required for copyright. Congress was coming around to realize that when creative people did not get a reward, they would tweak the system to work for them. The term was extended to 28 + 28. The certificate of registration became prima facie evidence of the material therein.
b.      1912 – movies were included into the copyright act.
c.       1952 – congress gave public performance of a literary work protection
d.      1972 – congress gave records copyright protection
2.      The 1909 Act and the Berne Convention
a.       We had to make changes to work our system into the international community. To get international agreements, you had to meet certain minimum requirements. One of the requirements was life of the author + 50 years. Therefore, we modified the system to work with the rest of the world.
3.      The Legislative Attempts to Revise the 1909 Act
4.      The Continuing Importance of the 1909 Act
iv.    The Copyright Act of 1976
1.      Important Changes Made by the 1976 Act
a.       1976 Act – congress put together the next revamp of copyright law. Effective in 1978, this act is still the basis of the law today. There is now a single federal system for published and unpublished works. There is no difference between the two. The 28 + 28 was throw

nion.
5.      U.S. Participation in the New Order
a.       Rentals of computer software is verboten. You are not allowed to rent A/V works. We get away with this because our renting does not violate the right to duplicate (the first step anyway). That is what the treaty requires.
b.      1996: Two new treaties: WIPO Copyright Treaty and WIPO Performance and Phonorecords.
c.       This treaty enforces the Berne and TRIPS. They add a little to TRIPS.
d.      Berne is encompassed by TRIPS which is encompassed by WIPO. However, TRIPS and WIPO do not include moral rights.
e.       Copyright and the Digital Challenge
i.        Looking Back
1.      Copyright law is not the only thing that controls the exploitation of the author’s work. There is also contract law, tort law and difficulty of achieving exploitation and the results may not be satisfactory.
2.      Four things tend to allow for control: law, contracts, trouble or expense for exploitation, and unsatisfactory results.
3.      That worked well until digitalization of material.
ii.      Digitization and the Revolution in Information Processing
1.      Characteristics of digital information technology that require a response form the legal system
a.       Ease of replication – hard to copy a book, easy to copy a file
b.      Ease of transmission and multiple use – proliferation was expensive, easy and free to send a file
c.       Plasticity of digital media – people like to alter work: it is very hard to modify a book, it is easy to modify a file
d.      Equivalence of works in digital form – you can make a Xerox copy, but it is hard to read, you can copy a file without degradation
e.       Compactness of works in digital form – it is hard to collect volumes of data, it is easy to collect digital information
f.       New search and link capacities – lack of an index can effectively hide information, digital data can easily be searched
2.      The four part test from above is not longer applicable to digital media.
3.      Digitalized world is destroying copyright protection.
4.      In the analog world it is hard to have a contract with the user. When you log onto a website, you agree to the terms of the contract. Those contracts are held enforceable in court. This is a new thing. Because of the digital world, you have to make adjustments to the way you do business.
iii.    Digital Networks and Their Importance
iv.    Digitization and Intellectual Property: A Typology of Issues
v.      Digital Copyright at Home and Abroad
vi.    The Issues in Context
vii. Looking Forward
f.       Thinking and Talking About Copyright Law
i.        In General
ii.      Copyright and Interest Analysis
iii.    Rhetorics of Copyright Jurisprudence
1.      The Utilitarian and Natural Law concepts of Copyright
2.      Other Rhetorics in Contemporary Copyright Discourse
iv.    Conclusion