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University of California, Hastings School of Law
Barrett, Margreth



Fall 2011

I. Copyright in Context

A. Origins

i. Constitution: U.S. Const., Art. 1, Sec.8, Cl. 8

A. Express grant to Congress to enact copyright law

ii. Statutory: U.S.C. 17 – 1976

A. Grants limited statutory monopoly in original works of authorship that are fixed in a tangible medium of expression

B. Consisting of the rights to 1) reproduce the work 2) prepare derivative works based on the original 3) publicly dist. Copies of the work (4) right to publicly display the work and/or perform

B. The theoretical underpinnings of copyright law

i. Why does © exist?

1. To promote progress (utilitarian, U.S.)

A. Create incentives for authors and publishers by creating a marketable right for creators and distributors of © works

i. Necessary to resolve Public Goods problem

a. Gives © owner a legal entitlement to exclude others from enjoying certain benefits of the work

b. Allows © owner to recoup investment in creation of the work

c. Encourages disclosure and dissemination of the work

d. Provides a remedy and compensation for unauthorized use

ii. Prevents underproduction of creative works

B. Hardy: “slice of the pie” approach to © protection

i. Authors need some assurance that copying will be limited through:

a. Entitlement-like protection: there are owners with rights that can be violated

b. Contract-like protection: protection b/c of agreement between parties to treat product as protected

c. State-of-the-art limitations: cost and quality of reproduction

d. Special-purpose technical limitations: self-help efforts by © owner

ii. What matters to © owners is the overall sum of the four factors (size of the pie) because that will determine how limited unauthorized copying will be.

2. Protection of an author’s natural right in her creation (moral, continental Europe)

A. European Continental theory

i. An author’s natural right in her creation is the principle basis for copyright protection

ii. Protection of non-economic interests: prevent distortion, destruction, misattribution

iii. Almost sacred bond of personality btwn author and work

B. Locke’s labor theory (U.S. incorporation of moral rights)

i. Labor gives rise to ownership of tangible property

ii. Property rights are only appropriate when there is enough left in common for others

iii. Intangible property as labor of the mind

C. Hegel’s extension theory

i. Property is an extension of human autonomy

ii. Owner has a right in the object b/c it has become invested w/ human will and not b/c of the labor gone into producing/maintaining it

3. Existence of a robust public domain

A. Public domain: the set of copyright works that copyright does not protect

B. There are portions of works protected by copyright that are owned by no one and are available for any member of the public to use

C. Authorship is not Aphrodite rising out of the sea

4. Uncensored marketplace of ideas

A. Netanel: Copyright is a system intended to support a democratic civil society b/c it creates a marketplace characterized by a diversity of expression which is a necessary condition for democracy

i. Copyright functions to encourage the production of a diversity of expression

ii. Copyright ensures that the public has enough information to meaningfully participate in the democratic process

iii. Copyright encourages the creation of copyright industries independent of government control

5. Theory of users’ rights

A. Users play a central role in the production and exchange of © materials

i. Users receive © works

ii. Users become authors

B. © law should accommodate the effective functioning of the user

6. Is © necessary for the public welfare?

C. The History of U.S. copyright law

i. England

1. Licensing Act of 1662: Copyright as a tool of censorship; right of perpetuity

2. Statute of Anne 1710: Copyright for encouraging learning; rights of limited duration; creation of legally recognized public domain

ii. U.S.

1. Constitution: copyright must serve a public purpose

2. Copyright Act 1790: Copyright must serve an educational purpose

A. Statutory formalities: registration of title, publication of registration, deposit of a copy of the work w/ the Secretary of State

B. Protection to authors of maps, charts, books

3. Wheaton v. Peters (1834/24): Is there copyright protection for reports of the Court’s opinions

A. C: Opinions themselves cannot be copyrighted, but other material added by the court reporter are eligible. However, reporter failed to comply w/ required statutory formalities. Any copyright protection for the reporter must arise outside the bounds of the federal statute.

B. I: Is there CL copyright protection?

i. C: There is no CL © protection in published works. ©of published works would be governed exclusively by federal statute.

4. Emerson v. Davies (1845/25): the nature of authorship requires some freedom to build on certain aspects of past works. There must be some leeway to use copyrighted material produced by others (fair use doctrine)

5. Copyright Act of 1976

A. Categories of protected content

B. Exclusive rights of copyright owners

i. Reproduction and Distribution

ii. Public performance

iii. Display

iv. Right to create derivative works based on the © work

C. Length of copyright

D. Fixation of copyright

D. The role of international treaties and institutions

i. Types of international copyright protection

1. National Treatment principle: Member countries cannot discriminate against foreign authors and must accord the same protection to foreign authors as to their own authors

A. Manufacturing Clause: Protection for foreign authors is conditioned the production of their works w/in the U.S.

2. Recognition on a Reciprocal basis: 2 countries agree that each would protect copyright works of the others’ citizens, but each would remain free to provide that protection under its own substantive law

ii. Berne Convention of 1886

1. Terms:

A. Imposed minimum substantive standards it members had to meet

B. © “shall not be subject to any formality”

C. Required protection for some works not (then) protected under U.S. © law

D. Required protection for ‘moral’ rights of authors

E. No enforcement Mechanism

F. Member countries may enter into “special agreements among themselves” as long as such agreements grant authors more extensive rights than those granted by the Berne Convention (Art. 20)

2. U.S. implementation

A. Minimalist approach to ratification – made changes to U.S. © law that were absolutely necessary to qualify it for membership

iii. TRIPS (Trade Related Aspects of Intellectual Property Rights) 1994

1. Purpose:

A. Intellectual property protection is a trade issue

B. Failure to protect intellectual property rights distorts the flow of trade and undermines the welfare benefits flowing from the GATT (General Agreement on Tariffs and Trade) system

2. Terms:

A. Establishes minimum universal substantive standards for the protection of intellectual property

i. National treatment (ART 3)

ii. Most Favored Nation (MFN) treatment (Art. 4) : Require each member nation to accord other members the same level of treatment that currently extends to the nation with which it has the best relations

iii. Goal: © is for the purpose of innovation and the transfer and dissemination of knowledge conducive for social and economic welfare (Art. 8)

B. Requires compliance w/ Berne Convention Standards (Art. 9) excluding moral rights (incorporates the terms of the Berne Convention)

C. Sets minimum duration of © protection = Life of author + 50 (Art. 12)

D. Art. 13: Minimize limitations/exceptio

r programs – is something made on the screen by Photoshop fixed? The answer usually is that it is fixed because the software that is programmed to respond to user input is fixed.

c. Difference between phonorecord and copy – Congress eliminated most differences based on medium in the 1976 act, but preserved the distinction between media embodying sounds and all other fixed embodiments of copyrighted works. A phonorecord is sound alone. Example: A phonorecord would be a record, an MP3, or a CD of a song, but an MTV video would be a copy b/c it has visual images.

1. DEFINITION of copies from §101 – “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

2. DEFINITION of phonorecords from §101 – “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

d. Statutory history of fixation requirement – prior to the 1976 Act, the U.S. had a dual copyright system. There was state c/l copyright for unpublished works. When a work was published, it moved into the federal realm if those published works had proper notice of copyright. The 1976 Act consolidated all coverage for fixed works under federal law. §301 provides that state c/l copyright will be preempted if the work in question is fixed.

1. PROTECTING UNFIXED WORKS: Some states intend to protect unfixed works – CA states in CA Civ. Code §980 that it will protect unfixed works. It is difficult to enforce, however, as it is difficult to have detailed expression w/o a writing. There is also a question of whether people really need copyright protection as incentive to create unfixed works. Also concerns with hampering free speech.

i. Example of Unfixed Works litigation – Suit involving estate of Hemingway. D kept secret journal of conversations with Hemingway. Later wrote book about quotes. P estate sued for c/l copyright infringement. Held, there are rights in extemporaneous statements but in order to claim copyright protection the speaker must make it clear that he intends to claim that right when he makes his statements.

e. Problems the statutory definition of fixed caused for live transmissions, and the fix (§101) – The definition of fixed causes problems for live transmissions b/c there is question as to whether the live performance is sufficiently stable to be perceived for more than “a period of transitory duration.” Therefore, the second sentence in the definition of fixed was added, so there is protection if there is a simultaneous tape being made of the broadcast. Clause is added to protect sports broadcasters.

“A work consisting of sounds, images, or both, that are being transmitted is fixed for purposes of this title if a fixation of the work is being made simultaneously w/ its transmission”