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SUNY Buffalo Law School
Bartholomew, Mark



Spring 2011

Chronicles of Narnia – SNL Sketch

· NBC said that was infringing upon its copyright

o Financial harm that SNL and NBC might be incurring since SNL and NBC package the DVDs of SNL.

o Creative efforts were used by all who participated

o Incentive to create and one of those incentives can be monetary

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 Non-rivalariously – 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; Security for intellectual/economic investment; Balances high cost of initial production w/ low cost of copying; Balances public/private concerns – encourages production for the public good by allowing private control/right of action

· Benefits – 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 limited time (limited monopoly), bundle of limited rights rather than total protection (inherent restrictions on what is actually protected), including exceptions (fair use, 1st amend, etc)

· Problems:

o Hard to extend same rights to tangible and intangible properties

o IP lacks exclusiveness/rival characteristics – don’t need to protect/conserve resources

o Cutting off positive externalities of non-exclusive use of intangibles

o Prevents cost-effective use of intangibles

o Incentive might not always be necessary for production, so society might incur costs of protection, deadweight loss unnecessarily

o There may be alternatives

o Incentives-Access paradox

· Incentives for Authors and Publishers

· Authors’ Rights

Natural Rights- Giving someone entitlement is morally justified

· Locke’s Labor Theory –have a moral right to the work of your hands (labor mixed w/ something to remove from commons).

a. Locke Caveats – you cannot own more than you can utilize such as apples and acorns

· Problematic in the Modern World – if you work for Microsoft, Microsoft still owns the programs you write [© typically vests in people who provide capital/take risks vs. do work].

· Property as Personhood

b. Hegel’s Personality Theory – when you possess something, it becomes particular to you and it is your moral right to own something that becomes so important to you [ex. a family heirloom] – property becomes an extension of your personality [protect © as a human right – your artistic expression becomes part of your autonomy – makes more sense with artistic works].

Public Domain

· General Principles – “Those aspects of copyrighted works which copyright does not protect”

o Works free from copyright – don’t meet © requirements

o Works created before the enactment of copyright statutes – Bible, Shakespeare

o Works that are so old that copyright has expired – beyond duration

o 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/protectable 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 unqualifiedly accessible

§ 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

§ PD prevents protecting too much à disincentive for creation

§ PD facilitates alternative modes of production (and protection)

§ Economic concerns

§ Limit access costs to fundamental IP building blocks

§ Minimize deadweight loss and network externalities

o Political concerns – PD protects free speech, point of intersection between © law and 1st amend

· Objections to, Criticism of PD

o creates waste inefficiency

o too narrow, seems derogatory, just a dumping ground for works that are no longer useful or valuable

o Sees property rights as THE driving force behind creation/use – that has limits…


· Neil Netanel – Copyright and a Democratic Civil Society – copyright fulfills two functions:

o Production Function – © encourages production of works which inform the public and move progress forward;

o Structural Function – copyright encourages creation of industries not under government or other powerful control (no longer rely on patronage, but public pays for their work).

§ Dangers with Structural Function – charging public can limit their access to the work.

· Solution – digital age is making access easier then ever.

Elements of Copyrightable Subject Matter – what is actually eligible for protection

· §102 Subject Matter of Copyright: in general

o (a) “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device…”

o (b) in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

· Class – Three Elements

o Original of Authorship

o Fixed in a tangible medium

o Expression


· §101 Definitions

o “A work is fixed in a tangible medium of expression when its embodiment in a copy of phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”

§ To protect “writings”; evidentiary purposes

§ Work needs to be sufficiently permanent that it can be communicated again – incentive model for transitory, ephemeral works wouldn’t hold up

· Class – Elements

o Has to be authorized

o More than transitory duration

o Tangible Medium of expression

o Digital format is allowed through the code because it no longer requires a human to be able to understand the medium therefore machines are now acceptable

otint of a picture in the public domain was copyrightable.

· Holding – Satisfied the originality requirement

· Rationale – Although it was a re-creation there are accidental differences in the mezzotint so it cannot be an exact copy. Originality – work “owes its origin” to the author. Input of author is “more than merely trivial.”

o ORIGINAL – author adds something recognizable as their own

Bell – copyrightable (tracing, alterations)

Bridgeman – digital photo not copyrightable (not many subtle changes – lacks variation) – slavish copying

Idea/Expression Distinction

§ 102(b) -“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

· Rationale: (1) Define line between copyright and PD; (2) define line between copyright and patents

Ideas: Not protected

Expression: protected

Baker v. Selden – book keeping copyright (82)

· Facts –Seldon created bookkeeping system (all fit in 1 book instead of cross-checking); P says D stole method

· Rationale – dist. between author’s original writing (Valid subject of ©) and the art or practical knowledge explained by the writing, which generally was considered to be community property and was the subject not of copyright but of a patent if completely original to the author.

o A book is intended to communicate knowledge and the purpose would be frustrated if that knowledge could not be used without infringing the copyright of the book.

o Novelty is not important for ©

· Class – When idea merges with practice the idea may or may not be copyrightable

· Merger Doctrine – expression is inseparable from idea – can’t do accounting system without using – not ©

o Cant protect idea without using blank forms

Blank Forms – not copyrightable, because they are designed to record information, not convey information.

Instructions – instructions on forms for filling them out are copyrightable. Edwin K. Williams & Co

d. And, if a form in designed so as to guide the user in filling itself out, e.g. some test answer sheets, it may be copyrightable. Harcourt Brace & World, Inc. v. Graphic Controls Corp. 37 CFR 202.1

Merger Doctrine – if a limited number of ways exist to express an idea, the idea and the expression merge into an un-copyrightable whole

· Examples: the rules of sweepstakes, Morrisey v. Proctor & Gamble [“we cannot recognize the game of copyright as a game of chess where the public will be check mated”] or “scenes a faire”, Hoeling v. Universal Studios

· No protection if doctrine applies

Thin Copyright – Contrast to the Merger Doctrine –

· As the number of potential expressions expands, the courts can grant “thin” copyright protecting only against virtually identical copies. (This is sometimes a defense to infringement rather than a bar to copyright)