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University of Illinois School of Law
Heald, Paul



Spring 2016

Part I: Intro to Copyright Law

Congress gets express power from the Constitution to enact copyright law

Intellectual Property Clause: “Congress shall have the power to promote progress of science and useful arts by securing, for a limited time, to authors & inventors the exclusive rights to their respective writing and discoveries.”


Utilitarianism – incentives production of works… if you don’t incentivize no one would do anything.

Plenty of things that are still produced w/ or w/o ©.
Trotter Hardy article:

© provides incentives to create, but can get protection other ways too.

Things that cost $ and time need incentivizes.

Software, novels, etc.

But even if ©fails, still ways to recoup $.

Cost/benefit analysis:

Benefit = some incentives for new creations, incentives to commercialize and distribute.
Cost = marginally higher prices, possibility of monopolies in secondary markets, orphan works (© makes books disappear, because once publishers stop making the $ they stop producing the book).

Were Framers Utilitarian?

“For limited times…” – shows concern for © costs.

Only want monopoly long enough to stimulate creation

Econ argue sofrware should have 2 yrs, not life of author + 70.

“Promote Science + Useful Arts”

Science = knowledge = ©

Framers were familiar w/ abuses by king james + Queen

Careful not just to be giving gifts.

“writings” – prevents ideas from becoming property.
S.C says “authors” shows sensitive to cost

Congress can only reward original works.

Author = producer of something original to self.

Natural Rights Theory (Locke)

Labor theory if you applied the labor, you should be rewarded.

Why French + CA painters get 5% of every sale after sale of works.

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 this is who you are.

People cannot distort works (France)
You should be able to control after you give away because the thing shows who you are

Not US way of thinking…

Relevance of the Public Domain to each theory:

Utilitarian – raw materials need to be available to create…

if we lock up everything up, there will be no piggybacking.

Natl. Rights – healthy commons necessary and right
Personhood – must have things to express and self-authorize.

Relevance of Freedom of Speech:

Only justification to enjoining speech, only exception to prior restraint.
Incentivizes the creation of political discourse.
Copy right gives MORE info/speech, when works right.

In England © given only w/ permission, this was not effective.

© creates independent authors + publishers diffusion of knowledge

Copyright Restoration Act of 1996

First time congress took things OUT of public domain.
Only applies to certain categories of post-1923 foreign works in PD because

Were records/sound recordings before 1972
Came from Russia or other hated states
The original authors failed to observe formalities.

Theories that support this act?

Utilitarian – no, incentives no longer there à became less available.
Natl Rights – argument is there, someone else made it giving $ to their heirs.
Personhood – less likely because he’s dead, if good heirs à would shape around person.

US + China Today

Alford: suggests large © piracy in china because of Confuscious okay w/ copying.

Is tied to confuscion philosophy.

Could be cultural commitment or they could be rational in wanting foreign work for free.

Hanging Q:

In late 1800’s lots of foreign books not printed – was very expsneive, risky move if competitor came out w/ book before you.
Now 100’s of publisher print PD books

Technology outstrips © law, it is always struggling to catch up.

Why do we care about theory?

Cts are very sensitive to the utilitarian argument, do cost/benefit analysis.
In pre-emption, the S. Ct says must understand economics to know whether the law pre-empted.

Role of International Treaties and Institutions

Congress has made the most significant changes in last two decades because of intl treaties.

Berne Convention (US joins in 1988)

1886, almost everyone is a member.
Auto-protection in all members from moment of creation of fixation.

Don’t need a lot of admin law
No intl © office or formalities.

US is last major country to join (1988).

No formalities US wants registration.

Easier to find if registered.
Creates problem of “orphan works”
“Moral Rights” suspect

Author can claim attribution

Big problem for US protection from distortion of works.

US Only makes one change, narrows the notion of fair use.

TRIPS Agreement (1994)

World Trade Org develops, US Joins.
US convinces people that IP belongs closely related to trade
Incorporates all of Berne except moral rights provision.

US wants this because TRIPS has enforcem

Cartoon Network v. CSC (2d circuit, 2008)

Cablevision copied into buffer for very brief period (constantly overwritten)

Stood for 1.2 seconds.

Court gives an embodiment and duration requirement?

Embodiment – a copy that’s able to be reproduced
Duration – must be embedded for longer than “transient duration”

1.2 seconds is too transitory to be fixed.

MAI System v. Peak Computer (9th Circuit, 1993).

MAI made software, in order to repair computer you need to make a short copy.

Court says this short duration is fixation.
Gives MAI a monopoly on the repair industry too!

Congress says “if you own computer program, not illegal for you to make copies”

We lease computer software, though… don’t own it.

When we look at leases we look at the “economic reality” to determine whether it functions as a lease or a contract.


Must be fixed to be protectable (sports = not fixed, not scripted)
If scripted you can’t record w/o permission

Music protected by anti-bootlegging statute

Duration is crucial

If we are going to protect short fixations, there are side effects. (MAI)


“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 though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.”
The requirement comes from “authors” in the Constitution.
Burrow – Giles v. Sarony (1884)

Sarony took a photo of Oscar Wilde, BG made copies. © Infringe?

BG says photograph is not = to a writing, can’t be ©.

Ct says: we protect maps + charts, Congress wanted these kinds of things protected.

Photos = maps, a rendering of a reality.

So, are all photos protected?

Doesn’t say.
Sarony put in “work” (picked wardrobe, lighting, pose, etc).
Made the work his.

“Ideas in the mind given visual expression.”