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University of Baltimore School of Law
Hubbard, William R.

COPYRIGHT (Fall 2013) – Hubbard

Plan of Attack:

1. Copyrightable subject matter

2. Copyright Ownership

3. Duration and Other Formalities

4. Scope of exclusive rights

5. Defenses

6. Third party liability

7. Para-copyright

8. Remedies

Industry Capture à “It’s not about making things fair for everyone. It’s about making things fair for Disney.”

I. Introduction

A. History

1. United States Constitution Article I, Section 8, Clause 8 à IP Clause

“The 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 Discoveries”

a. Gives Congress the authority to pass IP legislation.

2. Justifications for Copyrights

a. Encourage progress of science and the arts (IP Clause above)

b. Fairness and justice

c. Economic Development

d. Encourage creation

e. Accountability and quality control

f. Property Rights

g. Lobbying and industry capture

3. Many believe the origins of modern copyright date back to the introduction of the Printing Press to England.

a. A new profitable industry of printing and selling books was created.

b. Censorship and monopoly of market followed.

c. Early cases:

i. Millar v. Taylor (1769): P purchased rights to poem and had enjoyed a full term of protection under the Statute of Anne. When the term expired, D started printing the poem, and P sued. Biggest problem was the Statute of Anne à expiration of P’s rights under that law meant that he no longer had exclusive rights to the poem. P tested novel argument à contended that English common law protected an author’s natural right of property in his literary work, separate and apart from any limited statutory scheme. King’s Bench agreed. Theory based on Locke Theory that one has property interest in his or her own labor. Had this been set into common law permanently, then it would have changed the nature of copyright law; it took the position that basic principles of justice required a perpetual and never ending right in one’s own work. Five years later, overruled by Donaldson v. Beckett.

ii. Donaldson v. Beckett (1774): a group of printers acquired the CL copyright to a poem, and B sued the owners of an unauthorized edition of it. House of Lords rejected his claim. This meant that copyright could only exist by a statutory decree and it restored the Statute of Anne’s control over the existence and duration of an author’s exclusive right to print her works.

B. Imagine a world without copying à

1. What would happen to Bieber?

a. Because beebs knows that he will make a lot of money after putting in the hard work and effort, he will put that hard work and effort into making music. If he doesn’t have that economic incentive, then he will not produce music.

i. Would he really stop though? Does stealing music actually hinder production?

ii. Free music might drive more people to concerts.

2. Why do people download and rip music on P2P networks when Spotify and Pandora pay for licenses to get the rights?

3. Chicken/Egg Debacle

a. When people steal music, does that actually hurt the artist (bc of lost profits) or does that actually help him (bc more people can listen to his music)?

4. There will be people who cannot get what they want or what they need because it’s too expensive. Think about the little girl who cannot afford a CD. She won’t be able to listen to it if it’s not free. This will preclude her from listening to music. Copyright precludes people from listening to music.

5. Everyone rips from someone else. Bieber from JT from MJ.

6. Copyright protection provides financial incentives, but if we go too far, it will actually hinder the dissemination of knowledge and the useful arts.

C. The Scope of Copyright

1. If the scope of copyright lasts one year, then money will be ok

– If ten years, then better.

– If 1000 years

s: consumption of a good by one person does not diminish consumption of the same good by another person (enjoyment of the lighthouse by one person does not diminish enjoyment by others)

ii. Non-excludability: difficult for one person to prevent others from enjoying a particular good (difficult for one person who is enjoying the lighthouse as a guiding beacon to stop others from using it as the same)

iii. These two concepts explain copyright’s existence and limits

(a) Farmer can ensure that someone will pay for the apples. An author cannot ensure that everyone who uses her work will pay her the same way.

(b) Copyright solves this problem by creating a system that gives profits from the sale of books to authors, thereby creating economic and financial incentives for the creation of new works

e. These incentives also hinder the market though

i. A person who holds copyright in work profits by preventing others from reproducing or using the work. This scarcity then eliminates competition and allows the holder to charge a high price à reduces social welfare

(a) Society loses the benefits associated with ordinary consumers who no longer can afford to buy the work

(b) Society loses the benefits associated with future authors who might have used an existing work to create a new work (e.g., using a poem as lyrics to a song), but can’t afford to pay the royalties

f. Copyright may increase social welfare by encouraging the production of works with economic incentives, but too much copyright will rob society of the benefits that come with wide distribution and use of works.

e. How long should copyrights last?