Chapter 1. Introduction 1
1.1 Historical Background 1
Wheaton v. Peters 1
1.2 Excerpts from United States Register of
Copyright Circular 1, “COPYRIGHT BASICS” 12
1.3 The Legislative Process 20
How Our Laws are Made….. 20
Chapter 2. Copyrightable Subject Matter 69
2.1 Ideas vs. Expression 69
Baker v. Selden 69
Nichols v. Universal Pictures Corporation 73
10:00-10:50 this week W, Th, F in the auditorium.
1976 Copyright Act. January 1, 1978 into effect.
Section 101: definitions.
Section 102: what is copyrightable, protectable.
Section 106: exclusive rights of the copyright owner.
Sections 107-121: limitations on the rights of copyright owners. Fair use.
Congress background materials:
p. 35 – Reported Bills.
Staffer writes a committee report when the committee votes to report a bill favorably.
Courts will sometimes refer to these to gauge intent.
Arguments for them:
Carrying out the will of Congress, gives some additional info on the background.
Against using them:
Written by a political staffer, no evidence that any member of Congress even read the report, President had no power over what went into the report, etc.
Current shift away from referencing these reports, not part of the democratic process.
Chapter 2: Copyrightable Subject Matter
Principles as to what could be protected by copyright.
Derived from interpretations of Constitutional provision, language of copyright statute, idea of what the general scheme of IP was.
150+ years of judge made law.
Section 102(b) – (Supp. P. 7) – attempts to sum up years of judge made law.
102(a) – protection for works of authorship (expression).
102(b) – cannot get protection for an idea.
Two vague words: expression vs. ideas. Drawing the line in between. Very difficult just from statutory language.
Baker v. Selden (1879).
Claimed copyright: 2-part book
1) System of accounting.
2) Forms for the system.
Defendant copied the latter part, used forms with a similar system.
Court rules this was not encompassed by the author’s copyright protection.
If plaintiff had a patent on this system, he could have stopped his use of the latter techniques. 19th century courts might not have recognized one, today they would.
Had defendant made an exact copy, would he be liable?
If it were impossible to use the method without using the exact forms, he could (dicta).
Later cases try to interpret Baker for situations such as this.
To understand the meaning of 102, what is not copyrightable, have to look back to Baker.
Nichols v. Universal Pictures Corporation (1930)
U.S. Court of Appeals, Second Circuit – New York, at the time, most of these issues resolved here, never had to go to the Supreme Court because other
2) (PI or W) CFA (dissent).
Ambiguous sentence structure, can be translated either way.
Another example: death penalty for murder or arson with aggravating circumstances.
What does aggravating circumstances modify?
For criminal law, rule of lenity in favor of the defendant, not the case for Copyright law.
In this case, either interpretation leads to the same result.
Commonly quoted portions:
p. 80 – dangers of putting a judge in the position of determining the worth of a fine art.
106(a) – Visual Artist’s Rights Act – does put the judge in this position.
p. 78 – free to copy the original, but not to copy the copy (only if there is originality).
All the original artist did was look at the circus and make his “copy.” But there is a good deal of artistic merit and originality in between.
Debate over the meaning of the Constitutional copyright provisions.
p. 82, note 2. Article II, Section 8 creates two separate powers (18th century grammar) – copyright and patent.
Current case over the word “promote.”
Dispute: giving protection to works already authored does nothing to promote progress.