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University of California, Hastings School of Law
Barrett, Margreth

Introduction to Copyright 8/22/11 9:33 AM

Contact Info:

· Office: M212 (198 2M), M 330-430, W 230-330

· PH: 415-565-4642

· Email:

Exam: samples on library website, in class and open book

· NO MC, a few long essays and a few short paragraph essays

I. Theory/History

A. Congress has power from Constitution Art 1 Section 8 cl 8

“congress shall have power…to promote the progress of science…by securing for limited Times to Authors…the exclusive right to their writings”

Has been construed as limiting Congress’ powers in certain ways:

· CR leg arguably for purpose of promoting progress – What is meant by progress? Promoting production/dissemination of new works of authorship – encourage authors to make new works

· Encourage publication of range of works representing range of views – good for democracy enriches and promotes democratic discourse and first amendment interests

S Ct: “CR is engine of free expression”

Limited CR protection

· Only provide protection to authors and their writings

· Science in day language was drafted science had more general meaning of learning and knowledge

B. Ultimate goal of CR in US is to benefit the public

Giving rights to authors is a means to an end: the end being to enrich the public and Promote Progress

· If there is a conflict between public good and good of the author the public should technically win- but we will see how this plays out

CR standards are relatively low – standard is pretty minimal

· 1) Work must be original

o Anything that doesn’t qualify as original expression is not protected: ie scenes a faire, stock standard devices, facts etc. are not protected

§ These are devices anyone writing or creating a particular type of work on a subject matter/time period would need to use

· 2) has some minimal threshold level of creativity

· 3) Fixed in some tangible form

· Vast majority of works automatically qualify for protection – cts do not pass judgment on value of the work or decide which works are worthy of protection, to do so would be form of censorship, we don’t know which works will spark ideas/promote progress

· Later authors can use some copyrighted materials under fair use (defense) can copy expression that is otherwise protectable in order to accomplish certain ends – narrow but long list

Copyright needs to reconcile competing goals of economic incentive to create works while retaining public access to ensure ongoing authorship

· Achieve optimal balance between rights as incentive to produce and limitations to ensure that there is necessary public access to basic building blocks of expression (robust public domain)

· Whenever we think we have a correct balance a new technology arrives that shakes things up – why/how has the internet impacted this deliate balance?

o Internet made is much easier to make copies of works and to disseminate them all over the world (file sharing etc)

o Internet makes it harder for CR owners to keep tabs on copies of their works and where they are going/to police their rights

o How has internet shifted balance in favor of CR owners? Individual owners can encrypt and use technology to take protection into their own hands (protection beyond that of CR law), also it is cheaper for original authors to disseminate and cheaper so they don’t lose as much money when copying occurs

§ Where does technological blocking of use leave fair uses as put forth in the CR Act? CR owners make users sign license to use work that expressly rejects fair use

· Doctrine of first sale: once CR owner has sold/transferred title to a particular copy of its work it loses right to control further disposition of that work

o How does this play into the internet? When you transmit over the internet you are not transferring the copy you acquired but you are making a copy which is not allowed under doctrine of first sale – essentially doctrine of first sale is avoided in internet transfers

C. Jeremy Bentham, natural law John Locke theory:

These influenced our work of authorship views and the way we view works pragmatically and we believe works need to be protected as a matter of justice, work is an extension of the author

· Author has natural inherent right in the work

· Author’r rights systems: Rights not only to control the market but rights to prevent those who have purhcased economic right from changing the work (personal rights vs. economic rights)

o Personal rights: right to prevent misattribution, destruction, etc.

o More European, less economic/pragmatic like US, more about author and not society (US CR system it is more about fungible economic comodities, eye towards efficient dissemination of works to the public)

· Each system has been influenced by the other

o US economic/pragmatic system

o French/Spanish/German different interest in works

· Civil law= author’s rights

· Common law= economic rights

· Pressure to create uniformity among world’s CR/Author’s Rights systems because of global nature of marketplace

Author’s rights terms:

· 1909 Act 28 year terms, if before term ended could get an extension for another 28 years, if not then copyright ended at end of first term

o This was beneficial because if author still cares about the works then the author will renew and if not the public domain will get the work and this is a plus

· Europeans always had life of author + 50 years (now its life + 70 years)

II. Intl Treaties/Orgs

A. WIPO= World Intellectual Property Organization

· Helps developing countries set up IP

· Administers primary Intl IP treaties, Berne, WIPO CR, WIPO Performances and Phonograms

· Facilitates negotiation of new treaties

o One underway for audio visual works

o Another for broadcaster’s rights

o Extension of rights to folklore, traditional cultural art forms

· National treatment: Treaties are typically focused on national treatment – citizens of each country are treated as citizens of every country (nondiscrimination of nationals from other countries, same protection for everyone whether citizen of your country or not)

· Minimum rights members nations must make available: impose minimum levels of protection that signatory countries must provide

· Reciprocity: another approach rather than national treatment, ie Berne convention says every member country must provide CR terms of Life + 50 years, but members of EU decided then wanted to extend it to Life + 70 years

o So each country must provide life + 50 but any country can opt to make it longer and they are not required to extend this on a national treatment basis, they can adopt on reciptocity, only domestic authors and those authors of other countries that likewise extend their term (why US went to life + 70 term)

World division btwn developed/developing countries for IP rights

· Underdeveloped countries don’t want high levels of IP rights because it makes technology etc. more expensive

o Why is price too high to adopt strong protection?

· WIPO tends to tolerate different forms of compliance with its treaty, in order to bring new nations into org even if they don’t strictly comply

o No effective enforcement treaty/provision, not much member countries can do if others do not comply

· Takes unanimous vote to amend existing treaties so developing countries block attempts by developed countries and vice versa


GATT: intl trade agreements governing world trade

· Over objection of developing countries developed countries brought negotiations about IP protection into GATT negotiations (Uraguay round)

· More bargaining chips, developed countries could bargain with developing countries to raise IP protection standards this led to TRIPS agreement

· TRIPS administered by WTO

· TRIPS incorporates substantive Berne Convention – why?

o GATT/TRIPS has enforcement measures for noncompliance unlike WIPO/UN

o Also new substantive standards to fill in perceived gaps in TRIPS

o Ensures member countries provide adequate claims/remedies for failure to comply

· Although developing countries don’t have much technology/CR etc. they have a wealth of traditional/folklore/cultural works and they would like to protect that body of cultural art but CR doesn’t protect it very well

o Really meant for works of art for which there is an identifiable author for life + some amount of years

Berne Convention: Most important of all CR multinational instruments, created in late 1800s

· Substance heavily influenced by author’s rights (civil) tradition (versus US/Common Law pragmatic ends to a mean society oriented)

o Stronger CR protection than US, substantive requirements that were at odds w/ US CR philosophy so US did not join Berne Convention for 100 years (not until 1989)

· Displeasing to US:

o Prohibits imposition of formalities, makes sense in author’s rights world where act of authorship is what is protected whereas US required proper CR notice © for each copy of a copyrighted work with name of author and the first date of publication, failure to include on even a few copies meant forfeiting your CR (softened under 1976 Act)

§ Don’t want public to be afraid to use works even those that author doesn’t want to exploit, public will have high transaction costs to find out if author plans to exploit whereas with notice no trasnaction costs and more in public domain

o Moral rights: all members must protect moral rights of integrity and attribution

§ Integrity: author can prohibit mutilation/distortion of the work that may be detrimental to author’s reputation or misrepresent the work (author may sell all economic rights but still retain moral right to object if buyer does something to work to mutilate/destroy etc)

§ Attribution: to have your own work attributed to you and not to someone else

o Term: Life + 50 years

o Required full protection for architectural works

o Required when country joined Berne it restored CR of foreign authors that were still in existence in their home countries but had fallen into public domain of joining country

· Berne is not self-executing, so US Congress ratifies treaty but then has to enact

o Cal Civ Code Sec. 980: provides expressly that there is CR protection for unfixed works

§ Nobody knows extent of protection because there aren’t many cases

§ Is this good or bad? What should limits be? Problems with enforcement?

§ Many states have similar provisions

· We used to have duel system, CL protected works until they were published and upon publication either 1) if work has proper notice fed protection would commence OR 2) if no notice work would fall into public domain

Congress wanted to unify the law and bring it all under federal regulation – goal of 1976 Act

· Provided that going forward Fed CR would commence with creation of a work

o Sec. 101: Created = when it is fixed in a copy or phonorecord for the first time

o All state causes of action like CR would be preempted, except those for unfixed works

o Congress has given authority to provide rights to authors in their writings so this imposes limit on Congress’ powers to only protect fixed works

So there is CL protection for unfixed works – are the motivations for protecting fixed works the same for unfixed works??

· When we give rights we take something away from the public, so we want to have a balance

· Do we need the incentive to create unfixed works?

· Hemmingway v. Randon House: D was acquainted with Hemmingway and kept notes about his conversations with him and published biography and quoted things Hemmingway had said, Hemmingway’s estate brought suit for CR infringement, Ct said oral statements might be protected under CL CR in order to create interest but Hemmingway would have to make known his intent to claim rights in his statement (Rough parallel to federal notice requirement)

D. Musical performances

17 USC 1101: Copyright-like rights in musical performances

· without consent of performer(s) fixed/reproduces/transmits/distributes subject to copyright remedies to the same extent as an infringer of copyright

· This has no time limitation

18 USC 2319(a) criminal counterpart to 17 USC 1101 (if done with knowledge and for personal gain)

· Protection for live musical performances required under TRIPS, these are not copyright but are neighboring rights

· Some state antibootlegging statutes, publicity rights, etc that might provide assistance to performers

But question is whether Congress has authority to provide CR-like protection for live musical performances – potential problems?

· Patent and Copyright clasue of Con only gives authority to provide rights to authors in their writings, a live musical performance is not a writing because it is not fixed

o Also only for a limited time, 1101 is not a limited time

· There were Constitutional challenges to this statute

· Response: Congress was relying on Commerce Clause powers – issue becomes to what extent can Congress avoid express limitations on its powers imposed under one provision by simply lokoing to broader provision (like commerce clause)

· This problem keeps coming up as we try to harmonize our IP laws with those of other countries

II. Elements of Copyright: Originality

Burrow v. Giles: CR protection for a photograph of Oscar Wilde at issue. Question about whether CR was enforceable was whether Congress has Con authority to extent CR to photographs

· What is the argument that Congress lacks authority to extend CR to photographs? You are just taking mechanical photo of something that exists in nature

· So then what is the definition of a writing? How do we define it?

· Writing = original intellectual conception of a person, author must impose his own mental conception on the subject matter, the subject matter is in the public domain

o Does that exist in the making of a photograph? Ct said yes, posing, costume, background, arranging subject, light and shade, etc. This was author’s particular interpretation, others are free to create their own photographic interpretations of the same subject

o There is only one Oscar Wilde to photograph, but there are multiple ways to express a photograph of him

§ So to infringe here you would have to photograph the photograph, scan it, etc but what if you arranged him the same way?