1. Federal statute, codified in Title 17 of the US Code (Copyright Act of 1976)
2. authority for Congress to enact copyright law derives from the Constitution, Art. I, §8, cl. 8 (IP Clause)
3. req imposed by Copyright Act: original work fixed in a tangible medium of expression
4. protection: not required to be registered but protection begins once an original work of authorship is fixed in a tangible medium of expression
5. duration: life of the author plus 70 years (section 302); however, if the author is a corporation, the Act provides protection for 95 years from publication or 120 years from creation, whichever is shorter
6. Act provides a limited statutory monopoly for the author (section 106)
II. Theoretical Underpinnings of Copyright Law
A. Purpose in the Constitution’s IP Clause
1. fundamental purpose is to promote progress in the arts and sciences
a. have more works created, which in turn benefits the public
2. rationale for protection:
a. “public goods problem”: Once the work is created, it can never be used up, and it can be used at little cost. A song can be sung endlessly, a computer program reproduced over and over, w/out ever using it up or depriving anyone else of its use. These things are infinite and inexhaustible, so they provide different problems than tangible works.
1) aka “nonrivalrous” consumption: one party’s use of the good doesn’t interfere w/ another’s use b/c there are unlimited ways in which the good may be consumed. (example of a public goods characteristic that copyright works can provide)
b. Copyright protection helps solve the public goods problem b/c it provides legal entitlements to the copyright owner to exclude others from enjoying the benefit of the work (incentive to keep creating and benefit from their work)
c. Note: The focus of copyright law is on the benefits derived by the public from the labors of authors. Thus, the reward to the copyright owner or author is a secondary concern.
3. utilitarian purpose – copyright law exits to provide a right for creators and distributors of copyrighted works, which in turn creates an incentive for production and dissemination of new works.
a. our system creates an economic incentive of authors of copyrighted work.
4. tensions bet/ public and authors: public wants access and the ability to re-use the work, where the author is given the $ incentive to create and control work.
a. there needs to be a balances and §106 provides that since it gives the authors enough incentive to create and public is given access and the ability to reuse.
b. copyright law reps an economic trade-off bet/ encouraging the optimal creation of works authorship thru/ monopoly incentives, and providing for their optimal access, use, and distribution through limiting doctrines.
III. History of US Copyright Law
A. From Censorship to Markets
1. The first real copyright statutes were tools for gov’t censorship and press control (response to the printing press.
2. By agreeing to assist in the censorship desired by the Crown, the members of the Stationers’ Co. obtained mechanisms for preventing non-members from publishing works “owned” by the members.
a. this system of copyright protection was designed to publishers and the Crown, NOT authors (Licensing Act of 1662)
3. 1710 – Statute of Anne – granted an assignable right to authors to control the publication of their writings.
a. this was different than before b/c instead of a tool of censorship, the Statute of Anne was to be used as to encourage learning
b. the statute granted rights of limited duration (2 14-yr terms), whereas before the rights ended in perpetuity.
1) this limited duration was the first time, a legally recognized public domain consisting of works in which copyright protection could no longer be claimed.
B. Progress, Incentives, and Access
1. It took awhile for England to have laws that embodied public purpose and this was noticed by the Framers of our Constitution
2. In 1790, the first Congress embraced the idea of copyright’s having an educational purpose (as well as 2 14-terms). This was the first version that protected only author’s writings.
a. To receive protection an author had to comply w/ various formalities, which included registration of title, publication of the registration in a local newspaper, and deposit of a copy of the work w/ the Secretary of State w/in 6 months of publication.
3. Copyright Act of 1870 centralized all registration and deposit activities in the Library of Congress
4. 1897, Congress established the Copyright Office as a dept. of the Library of Congress
5. By the end of the 19th century, copyright protection was firmly established in US law as a means of encouraging progress in knowledge and learning.
C. Copyright Law and Technological Change
1. The first Copyright Act, enacted in 1790, extended copyright protection to authors of maps, charts, and books.
2. 1976 Act had the enumerated works protected so it could free the courts from rigid or outmoded concepts of the scope of particular categories. (content based categories)***Statutory bones of the law today.
a. it also defined 5 exclusive rights, which still maintained trad’l rights of reproduction and distribution, but broadened rights of public performance and display and newly defined right to create derivative works based on the copyrighted work
b. it abandoned the 1909 Act’s focus on publication as triggering fed. copyright protection, and provided that protection would attach from the moment that a work was fixed in a tangible medium of expression.
D. Copyright Industries
1. In 1999, the “core” copyright industries (motion pictures, sound recordings, music publishing, print publishing, computer software, theater, advertising, radio, television, and cable broadcasting
E. International Treaties and Institutions
1. International Copyright and the United States
a. trade relations w/ countries that lacked domestic copyright protection typically led to recognition of such protection on a reciprocal basis: two countries would agree that ea. would protect copyrighted works of the others’ citizen, but ea. would remain free to provide that protection under its own substantive law.
b. However, the copyright law of most countries explicitly excluded foreign authors and their works from protection
1) US was included in this until the Copyright Act of 1891, where the US took steps toward the national treatment principle that is the cornerstone of modern trade agreements, including international copyright agreements.
c. Purpose of Treaty: “quid pro quo” notion is the reason, so there can be some level of protection to work created by foreign authors and vice versa. Ea. country protects the rights of other citizens. (bilateral agreements) Note: this was formality free protection.
2. 1976 Act had 3 categories for foreign authors: (1) foreign authors domiciled in the US at the ti
k is capable of being perceived w/ the aid of a machine or device.
c. Recordation or writing need not have to last a long time—MAI Systems Corp. v. Peak Computer, Inc: The MAI case involved a service firm, Peak, that maintained and repaired computers for its clients, and those manufactured by MAI. To correct problems in the MAI computer, technicians made use of the diagnostic software built into the machines, which was loaded into the computer’s RAM memory when the computer was turned on. MAI argued that it licenses the software only to the purchasers of the machines and that the service firm’s copying of the software into the machine’s RAM constituted infringement. Peak (D) argued the copy created in the RAM is not “fixed” so “copying” did not occur under the Copyright Act. The court found the copy created in the RAM can be “perceived, reproduced, or otherwise communicated,” so the court held the loading of software into the RAM creates a copy under the Copyright Act.
1. Intro: this term is left undefined by the Copyright Act.
2. Caselaw: developed here there are (2) aspects of originality: (1) independent creation plus (2) a modicum of creativity—Feist.
a. Independent creation: is a work owing its origin to an author; thus, it is a work not copied from another.
b. Modicum of creativity: a work must possess an extremely low degree of creativity.
3. Original to Whom?—Burrow-Giles Lithographic Co. v. Sarony: D argued that a photo was not a writing nor the production of an author (under the older standard). Court held a photograph is an original work of art and a product of P’s intellectual invention, and of a class of inventions of which the Constitution intended that Congress protect. Furthermore, originality was found in the way the photographer made creative decisions in the set up of the shot. This case expanded on “authors” and defined it to mean “he whom anything owes its origin; originator; maker.”
4. Bleistein v. Donaldson Lithographing Co.: The claim is that the ad was not artistic or copyrightable. The “non discrimination principle” or judicial restraint was introduced, where the judiciary won’t judge the artistic merit of the expression. The judge need only see a little bit (low standard) of creativity. Thus, the law (judges and juries) will not prejudge the social meaning of a work.
a. Copyrightablity is not really tested (prejudged) until there is an infringement, since you automatically get protection at creation.
5. Originality in Reproductions of Works of Art: Courts have had particular difficulty in applying the standard of originality for reproductions of works of art. In general, an artistic reproduction that merely makes an exact copy of a prior work would lack sufficient originality. If the copy, however, entails the independent creative judgment of the artist in its production, those aspects will render the work original.