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University of Baltimore School of Law
Hubbard, William R.

Copyright Law Fall 2016
Professor William Hubbard
What is Copyright? It governs various rights in books, musical works, movies, computer programs, and other original works of authorship. It gives copyright owners the exclusive rights to reproduce, make derivative works from, distribute, publicly perform, and publicly display their works.
Intellectual Property: Copyright, Patent, Trademark
Copyright law is a strict liability statute
A. History of Copyright
1. Early English Copyright
Statute of Anne: passed by the House of Commons, first Anglo-American copyright statute, granted authors the exclusive right to print their works for 28 years
Millar v. Taylor (1769): English common law protected an author’s natural right of property in his literary work, separate and apart from any limited statutory scheme, took the position that basic principles of justice required a perpetual common law copyright right in excess of any rights created by the Statute of Anne
Shows how copyright might be a form of property that should belong to authors as a matter of fairness and justice
Donaldson v. Beckett (1774): copyright could exist only by statutory decree, restored the Statute of Anne’s control over the existence and duration of an author’s exclusive right to print her works
2. Modern American Copyright
Federalist Papers: Madison wrote about the value of copyright
Constitution: “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 Right to their respective Writings and Discoveries.” (Art. I, §8, cl. 8)
Purpose: “…promote…”
Science = literature
Useful Arts = mechanical inventions
Means: “…by securing…the exclusive Right…”
First American Copyright Statute (1790): borrowed basic structure from the Statute of Anne, gave copyrights with initial and renewal terms of 14 years (28 total) to authors of “maps, charts and books”
1909 Copyright Act: protected “all writings or an author,” not just “maps, charts and books,” with initial and renewal terms of 28 years each (56 total), governed for 60+ years, but many elements called for change
New technologies: radio, television, photograph
Technical formalities: process for renewing copyright
Emerging globalization of business: became desirable for US to adhere to Berne Convention (leading international copyright treaty)
1976 Copyright Act: gave new works a single term of copyright that lasted for the life of the author plus 50 years, lengthened the duration of existing works to 75 years, began reducing the importance of formalities in copyright
Berne Convention Implementation Act of 1988: in collaboration with the 1976 Copyright Act, paved the way for the US to join the Berne Convention in 1989
3. Copyright Today
Technology made copyright more valuable around the world, but threatened its security
Pro: increased commercial importance of copyright
Con: facilitated infringement; digital technology (particularly the internet) made it easy for almost anyone to both reproduce and distribute perfect copies at a low cost
US sought new legislative enactments
Digital Millennium Copyright Act (DMCA): increased protection for copyrights
Sonny Bono Act: increased the duration of copyrights to the life of an author + 70 years
Other countries sought more protection that that provided by the Berne Convention
General Agreement on Tariffs and Trade (GATT): stronger international guarantees of copyright protection à approved the TRIPS Agreement (Agreement of Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods) in 1994
Copyright Policy Considerations
Incentives to create and express > Dissemination, Public Domain
Incentive Benefit: Promotes the creation of “right” fruits => Promotes the progress of “science,” i.e., knowledge
Static Effects: Current consumers who can’t get the fruits – unaffordable
Dynamic Effects: Future producers whose promotion of knowledge is harmed
B. Thinking About Modern American Copyright
1. Copyright as Economic Incentive
Ultimate purpose of copyright: not only to provide incentives for the creation of new works, but also to make those works available to the broader public
Public goods: books, movies, computer programs, music
Different from Private goods for 2 reasons
Non-Rivalrousness: consumption of a good by one person does not diminish consumption of the same good by another person
Non-Excludability: it is difficult for one person to prevent others from enjoying a particular good
Copyright creates a legal regime that gives profits from the sale of books to authors, thereby creating economic incentives for the creation of new works economic theory predicts that an unregulated market economy will under-produce public goods
Copyright should not be absolute because it can reduce social welfare by providing for monopoly power in the author
Ordinary consumers may not be able to afford the work so society loses those associated benefits
Lost benefits from future authors not being able to create new works from existing works because they cannot afford the necessary royalties
Balancing copyright protection: too broad v. too narrow
2. Copyright as Fairness and Justice
Copyright must not allow authors to claim copyright in things they did not create.
Copyright must leave future authors access to and use of existing works roughly equivalent to the opportunities enjoyed by previous authors
Limits on duration, restrictions on copyrightable subject matter, affirmative defenses such as fair use
17 U.S.C. §102(a) extends protection to “original works of authorship fixed in any tangible medium of expression.” + Works of authorship categories
provides a limitation that “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

“A picture is none the less a picture, even used for an advertisement”
The Court issued a warning that Judges were not to evaluate the artist or aesthetic merit of art when determining whether or not is should be covered by copyright law.
A judge is not an artist
Originality ≠Quality
Meshwerks v. Toyota Motor Sales
Photographs and are not per se copyrightable if lack originality
Copyright protection only considers the final product in demonstrating some creative of Originality expressed in the fixed tangible medium.
Author's effort and creative decision-making is superfluous to legal determination of Originality
Originality ≠ Great skills
Copy in a new medium is copyrightable only where the copier makes some identifiable original contribution.
Mere exact or near-exact intentional duplicate of an original will not qualify for copyright protection because creative transformation of material in the new fixed tangible medium was not attained.
Originality ≠ Novelty, Utility
Test for Independent Creation
1. An objective assessment
Meshwerks played a narrow role in the process by simply copying Toyota’s vehicles into a digital medium
2. Authorial intent as evidence
Make a copy of someone else’s creation / Create an original work
Bridgeman Art Library v. Corel Corp. (SDNY, 1999): the plaintiff was a library that have photographic reproduction of public domain paintings, D sold a CD-ROM that contained that reproductions of paintings
Held: No protection. Library’s exact photographic copies of public domain paintings cannot be protected because those reproductions do nothing more than accurately convey the underlying image from either prior Copyright owner or Public Domain, they lack sufficient originality, regardless of the medium in which they are portrayed (CD-ROM v. poster v. photograph)
“Quick picture” Faithful depict ó Creative expression
Derivative works
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted
does not extend to any part of the work in which such material has been used unlawfully
extends only to the material contributed by the author of derivative work which is distinguished from preexisting work