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University of Illinois School of Law
Heald, Paul

Copyright, Prof. Heald, Fall 2012, University of Illinois
·         on/off switches: Fixed?  Original?  Section 102(b) exclusion?  Formalities complied with?  Expired?  Separable? 
·         intellectual property clause: “Congress shall have power . . . to promote the progress of science & useful arts, by securing for limited times to authors & inventors the exclusive right to their respective writings and discoveries.”
·         “promote the progress of science” = knowledge
·         “limited times” – the framers knew that there were dangers
·         “to authors” – wanted to reward the ppl actually doing the creating; should be something original about the work'
·         § 302(a) – copyright subsists from the first time the work is fixed in tangible form
·         § 201(a) – copyright vests initially in the  author of the work.
·         Ask: who is the author(s)? Has ownership been effectively transferred? Has transfer been terminated pursuant to K or statutory right?
·         Theories to Justify Copyright
·         Utilitarian = incentives to create; incentivizes authors to create works (w/ reknown) rather than cheat and copy
o    costs & benefits: benefits = some incentives for new creations, incentives to commercialize & distribute // costs = marginally higher prices, possibility of monopoly leverage in secondary markets, orphan works → © makes books disappear!;  tax on derivative/follow-on creation/innovation, use restrictions  → takes time to find owner (difficult 4 pics) & get permission for use
o    what kind of works really need copyright protection?: software, novels, etc.
o    BUT even when © fails, still ways to recoup $ (Nollywood product placement & Grateful Dead live shows & gear)
·         Natural Rights Theory (Locke) = authors' rights are morally required; labor gives rise to ownership of tangible property → if you create something, then it's yours. [French painters → inalienable right to receive 5% royalty on all subsequent sales of their art] ·         why can't you drain lake michigan?: you don't get to take so much that you prevent others from doing same (in the commons)
·         Hegelian Personhood Theory: property exists b/c  an object/land has b/c invested w/ human will; if you distribute a work that you've produced, you're saying the work is “who you are” [French give artists right to prevent distortion of their works]                                    i.            what is the relevance of the public domain to these theories?
o    utility: raw materials of economically motivated creation need to be available to creators
o    natural rights: a healthy commons is necessary & a matter of right
o    personhood: certain raw materials of expression must remain available if we are to be free & self-actualized
o    too much property threatens all three theories
                                  ii.            relevance of free speech?
o    too strong a copyright would cripple our ability to engage in the democratic process
o    Netanel: © law is necessary for democracy → encourages production, dissemination of works that ensure democratic participation (even creative works have broad political & social implications); prevents patronage issues (no more church!)
o    Litman: if we have laws that discourage readers, that will also be bad for authors; creation & dissemination of works means nothing if no one gets to read/experience the works
Copyright Restoration Act of 1996 – only time Congress took things OUT of the public domain
·       only applies to certain categories of post-1923 foreign works that were in the US public domain b/c they (1) were records/sound recordings (before 1972), (2) came from Russia or other disfavored states, or (3) the original author failed to observed formalities
·       which theory supports this legislation which retroactively protects existing works?
                     o     utility: NO, this law can't be about incentives to create, b/c these works are already created
                     o     natural rights: what's mine is always mine?
                     o     personhood: author's estates?
everything before 1923 is in the public domain
Problems of Copyright Today
·       Access: (1) Disserves purposes of copyright b/c purpose is spread knowledge; (2) Deal with access issues w/ exceptions like ability to resell; (3) Technological and Institutional Change
                     o     Deadweight loss – the difference b/w the marginal costs of copying and the efficient price that allows you to continue your business.  With this difference, also lose readers who would pay marginal price, but not the efficient price.
·       Scope – what does copyright protect? → Fact/Idea vs. Fiction/Expression.  Gray areas in between.
·       Follow-on Creation
·       Global Context – U.S. attempts to fit its unique copyright tradition into new international copyright regime. (Berne Convention; TRIPS Agreement; WIPO Treaties)
·         International STUFF
Berne Convention (1886, US didn't join until 1988)
·       one of the earliest int'l treaties → almost everyone's a member
·       automatic protection in all members from the moment of creation or fixation (U.S.)
                     o     don't need a lot of administrative law
                     o     no international copyright office or formalities
·       US didn't join til 1988 b/c:  (1) we like formalities (registration solves orphan works), (2) we don't like moral rights, (3) very narrow notion of fair use, (4) we'd have to pull some works out of PD
Trips Agreement (1994)
·       drafted by US after continued frustration with WIPO over fighting piracy
·       incorporates Berne EXCEPT moral rights provision
·       intellectual property = trade issue! → got US more interested
                     o     lack of protection for movies prevents redbox etc. from coming into X country (they'll rip your movies)
·       effective intra-member enforcement procedures (dispute resolution), unlike Berne
                     o     only treaty which has such an effective enforcement procedure
                     o     most countries like moral rights, so, developing countries signed on bc of implied promise that agricultural markets would be opened up in Europe, US, and to a lesser extent, Japan
·       MFN (most favored nation) – if X gives concessions to one country, X has to give them to all countries
·       national treatment – WTO members must treat other nations the same as it's citizens
·       adds protection for victims of bootlegging & broadcasters whose signals are pirated
·       no private causes of action against non-complying states → victims must go to their governments
·       costs for developing countries: copyright for software is basically eternal (life + 50yrs → there's no software that's valuable for that long); no translation rights for textbooks
·       benefits for developing countries: price of foreign music, etc. goes up if American music, etc. is protected
                     o     if Sony is selling their shit for $5 instead of .50, native artists have a chance to compete
·         Subject Matter
·         § 102 of the Copyright Act → Eligible subject matter:
              o     literary works (1790)
              o     musical works, including any accompanying words (1831)
              o     dramatic works, including any accompanying music (1856)
              o     pantomimes and choreographic works (1976)
              o     pictorial, graphic, and sculptural works (1865; 1871)
              o     motion pictures and other audiovisual works (1912)
              o     sound recordings (1971)

stomers' computer systems for an add'l cost. A few employees left to PEAK, who stole some maintenance Ks.
·         fixation by infringers
o    MAI's argument: they'd sold a license to the users to make copies, but NOT third parties like Peak; to perform maintenance, you had to run the program → req'd a copy of the program from the hard drive to be made onto the computer's RAM.
o    copy = loading the software onto the RAM
o    transient memory is sufficiently fixed → is this wrongly decided?
o    the court never said how long the copy existed in the RAM.
o    it's probably there for at least several minutes
o    SILLY → Peak could just ask the licensee to boot up the software (so no copyright violation).
o    17 USC §117 (a) Making of Additional Copy or Adaptation by Owner of Copy — not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation IF creating the copy is an essential step in the utilization of the computer program in conjunction with a machine (also subject to §106)
o    how come § 117 doesn't save Peak? Peak weren't owners of the software → just licensees
·       fixation hypos: how long?
·       buffered media stream (Hulu, Youtube)
o    Cartoon Network (2d Cir. 2008) – 1.2 seconds is too transitory to count as fixed.
·       browsing through a website, cached images… is the copying that's done to your website enough to be fixed?
o    probably yeah b/c it's long enough to be fixed
·       email – fixed
·       online chat – not fixed
·       on your hardrive a few days – fixed
·       Feist v. Rural Telephone (1991) p.58 – Rural provides telephone services & is req'd by state law to publish directory, which it does alphabetically. Feist copied 1,309 of Rural’s listings of names, addresses, & #s.
o    Facts are not copyrightable.
o    BUT compilations of facts may be copyrightable if they are sufficiently original.
o    original selection, order, and arrangement for effective use by readers.
o    if the format is deemed original, the copyright does not extend to the facts themselves.
o    To establish copyright infringement, two elements must be proven: (1) ownership of a valid copyright, (2)copying of constituent elements of the work that are original. 
o    facts + no originality in the formatting → no copyrightable expression. no copyright infringement!!
o    Rule of Law. To qualify for copyright protection, a work must be original to the author, which means that the work was independently created by the author, and it possesses at least some minimal degree of creativity. A work may be original even thought it closely resembles other works so long as the similarity is fortuitous, not the result of copying.
·       Originality HYPOS:
o    fancy cookbook = original, list of ingredients = not original
o    list of “20 worst dressed celebrities” – originality in selection, implies authorship/opinion.
o    flow chart → original: no obvious, logical way to organize that information, so could imply authorship.