Okediji
Copyright
Fall 2010
I. Policy:
A. Theory for Copyright Law:
i. Incentive for author and publisher theory (rewards creativity, prevents underproduction of creative works)—leading justification in the U.S.; but hints of it showing up in international treaties (WCT, Preamble., para. 4)
a. Con I clause 8: Congress shall have the power to promote the progress of Science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
b. Cost of creating new works is often high (economic cost and opportunity cost), but the cost of reproducing them is low. In order to overcome the free-rider problems with public goods which is non-rivalrous and non-excludable. Without copyright law, authors have a diminished incentive to produce works.
c. Copyright also provide an incentive to efficiently exploit works
Ø Will preserve copies of old works, devise ways to improve works and seek new markets for works (bring them to a wider adudience)
d. Readily accessible, inexpensive copy technology.
ii. Author’s Rights (dominant in Europe; human rights dimension)—are author’s rights human rights?
iii. Public Domain—grist for future creativity/Lockeantheory?
iv. First Amendment –Why is this an issue?
v. .User’s Rights?—Are Author’s “users” in disguise?
a. In order to create and disseminate a work of authorship, someone needs to read the book, view the art, hear the music, listen to the CD.
b. Mass practices of many users, like youtube of ingoring the need to obtain permission, have prompted the securing of commercial licenses between sites and the holder. Thus the unauthorized mass practices may have, in some instances, turned out to be the catalyst for subsequent ratification of those practices.
vi. New technologies:
a. Once a work rendered in digital form, it can be reproduced instantaneously without the degradation in quality. Anyone with access to the internet can transmit such works instantaneously, with a few taps on keyboard to anywhere in the world, and anyone with access to a Web server can display the works for others to see, modify, and forward to others with access to the internet.
B. Cost of Copyrights:
i. Transaction costs (hiring lawyers, negotiating for permission to use works, locating authors, and asking for permission)
ii. Rent seeking: use of copyright to get revenue from nonprotected elements or even making frivolous claims for their settlement value.
iii. Dead-weight losses: use of works that don’t take place because of copyright, such as where an author does write a book or song because of inability to get the necessary permission from certain copyright holders, or where a copyright holders chooses to sell fewer copies at a higher price
iv. Distorted incentives: channeling resources toward copyrightable works
v. There are many incentives other than copyright for people to produce creative works
vi. Freedom to copy may speeds innovation.
vii. In creation, she has reduced the resources available to others, and also relied on elements created by others. So she should let others likewise make some use of what she has created.
C. Limits to the Incentive Theory
i. Creativity would exist without it (ego, passion, etc as motivators)
ii. Incentivizes works that may not be good for social welfare (pornography, violent films, etc)
iii. Treats all works equally –i.e., overincentivizes (do we really need 40 versions of Romeo and Juliet? Are some better than others?)
iv. Nothing is every really “original”
v. The creativity is the smallest part of the cost of producing copyrighted works!
D. Sony: balance between a copyright holder’s legitimate demand for effective protection of statutory monopoly and the rights of others freely to engage in substantially unrelated areas of commerce.
i. P2P: vastly increases the internet’s potential as a tool for finding and sharing information.
ii. Secondary liability may provide incentives to third-partie gatekeepers to minimize infringing activity.
iii. Purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purpose may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have
iv. Prohibition of such noncommercial use would merely inhibit access to ideas without any countervailing benefit.
E. Transformative use: the goal of copyright to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.
F. Internet: may greatly reduce the transaction costs of locating copyright owners and obtaining licenses to use copyrighted material. May automatically be confronted with a “click warp” license. Fair use defense may be reduced in the internet context.
G. A sound balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication
b. Not free to copy the copy – the copy had originality in it (free to copy original)
Ø Copy is the personal reaction of an individual upon nature
Ø Very modest grade of art has in its something irreducible which is one man’s alone.
iv. Alfred Bell v Catalda Fine Arts
a. made color lithographs of π engravings
b. New art form case
c. Reproductions are copyrightable – even of PD material – translations are copyrightable – since literal translations are impossible, you have to choose words
Ø Distinguishable variation: Make creative choices about the depth and shape of the engraving depression
Ø Something recognizable “his own” Bad eyesight, defective musculature or a shock may produce variations
d. Intentionality of differences does not matter
e. Likewise, changing the size, spacing, and proportions of a graphic design may.
v. Change in medium not enough: such as making 3-D costumes based on character from 2-D cartoons.
a. Bridgeman Art Library v Corel Corp:
Ø Make transparency digital copy of arts from museum.
Ø Something beyond technical skill: genuine difference
Ø Slavish copying or just mechanical reproduction: not sufficient.
vi. Meshwerks v. Toyota Motor Sales U.S.A.
a. “car as car” theory:
Ø Without any individualizing features: untouched by digital paintbrush, no depicted in front of a tree or on the road.
Ø Not seek to recreate vehicles outright – steel, rubber, but depict 3-D objects in a 2-D digital medium
Ø No choice of unique shading, ighting, angle, background scene, or other choices
Ø Fill out the unprotected bottles or car, which not owe origins to the photograhphers.
vii. Mannion v. Coors Brewing: photograph may be original
a. Rendition: how it is depicted: angle, light, shade, exposure, by filters or other developing techniques.
b. Time: at the right place at the right time
c. Creation of the subject: create the scene or subject
Ø Entire image: man, sky, clothing, and jewelery in a particular arrangement.
