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University of Dayton School of Law
Reilly, Tracy

I. Overview
            A. Copyright
                        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.
            C. Originality
                        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.