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SUNY Buffalo Law School
Bartholomew, Mark

Copyright Law
Spring 2007

Legal Protection


Technology making it difficult to access

technology making it diffcult to copy

scope of copyright protection for the creator

The protections that are afforded to all copyright are different and more attractive to some copyrighted material as opposed to other material. In the Microsoft agreement with software shrink-wrap contract is relied upon but is not entirely successful so you agree to have Microsoft use technology to see whether or not you have unauthorized programs. If you have a manuscript stolen you will rely on the legal protection. While each piece of the pie gets smaller another piece theoretically gets larger in another section. The circle changes when the public sphere enters into the pie and the argument is that as the legal protection gets bigger that it cuts into the public sphere section.

Chronicles of Narnia – SNL Sketch
· NBC said that was infringing upon its copyright

Reasons why it needed to be protected
· There is a real financial harm that SNL and NBC might be incurring since SNL and NBC package the DVDs of SNL.
· Creative efforts were used by all who participated
· Incentive to create and one of those incentives can be monetary

Theories of Copyright Protection

Utilitarian – Economic Rationale
· Incentives paradigm – © granted for a limited time, in order to promote progress of arts/sciences
· Intellectual Property – by nature is different than tangible property due to the fact that it is consumed in a Non-rivaliously – only one person can eat a hamburger but with an IP millions can use it and possess it.
· Viewed as Necessary
o Information as public goods – © protection counteracts non-exclusiveness, affords exclusive good to incentive production
o Provides security for intellectual/economic investment
o Balances high cost of initial production w/ low cost of copying – if marginal costs of copying are so low and there are not legal rights to prevent it à little incentive to produce
o Balances public/private concerns – encourages production for the public good by allowing private control/right of action
· Benefits of this Model – fits better with the US constitutional © scheme
o Art. I, § 8, cl. 8 – “The Congress shall have Power … to promote the Progress of Science and the useful Arts, by securing for limited times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.”
o Recognizes public goods tension – to secure incentive to invest there must be stronger protection, but to promote progress there must be greater access
§ As © is stronger it reduces access, but without strong © you lose incentive to create
§ Structure of US scheme reflects this – exclusive rights for a

cts or ingredients of copyrighted works that are not, in themselves, subject to copyright – facts, ideas
o Materials or uses that are outside the proprietary regime, that are not limited by the exclusive, codified system
§ Not public interest, or public property
§ Flip side of proprietary regime – limits what is accessible/protectible and when
· Proprietary – exclusive rights granted to ©-holders
· Public domain – open, accessible, unprotected information
o Not necessarily free or accessible – just b/c work is in PD doesn’t mean it’s unqualifiably accessible
§ Works in PD are subject to restrictions by other laws
· Though PD becomes flashpoint for pre-emption issues
o Works available in legal sense might not be physically available
§ Everyone has right/privilege to use the materials, but might not be able to
· Defining the PD – where to draw the line
o Lockean approach – PD is default, greater intellectual commons that authors can draw from
o Hegelian approach – PD is default, authors can appropriate from it by investing will or personality
o Utilitarian approach – PD should contain works for which incentive is not required, or works/elements which must remain accessible to allow for other creation/progress
§ If no incentive was needed to create à no reason for subsequent ©
Basic info/ideas must be open to spur future creation