I. Justifications for Copyright: Ch. 1. p. 3-19.
A. Incentive—Main U.S. theory of Copyright
1. Utilitarian
2. Creations are good for society
3. Copyright gives authors incentive to create
4. Why needed—basically without it, authors would go pretty much uncompensated for the work they put into a copyrighted work
a) Intellectual Property (copyrightable stuff) are public goods
b) You can exclude someone from using it
c) Also Non-rivalrous-one parties use of the good does not exclude others from using it.
d) Non-excludability—once a work has been released to the public you can’t exclude others from enjoying its benefits
B. Author’s Rights—Main theory in Continental Europe
1. Metaphysical right of the author of how their work is going to be used
2. Not about the market
3. Moral rights
C. Public Domain
1. All about getting a robust public domain
2. Closely linked to the incentive theory
3. Everyone creates by drawing from the public domain
4. Larger public domain, thus more creation
5. Public domain expands through
a) New ideas, embodied in new expression
b) Expiration of copyright
D. Uncensored Market Place of Ideas
1. Also related to the incentive theory
2. Copyright allows people to express themselves without patronage
3. Fosters the creation of ideas
4. Frees authors to express ideas not sanction by patrons (including govt.)
II. The Evolution and Purposes of Copyright: Ch. 1, pp. 19-39.
A. Originality a tool of censorship used by the crown
B. Read the book if you really need this
C. International Treatise and Institutions
1. The Berne Convention 1886
a) U.S. Joined in 1989-last industrialized country to do so
b) Strong on moral rights
c) Effort to get rid of discrimination
(1) National Treatment—Promise to treat foreign works as well as you treat you own
(2) Most Favored Nation—Any protections one country extends to another it must extend to its MFN
d) Also adopted rules of minimal protections countries must extend to copyrighted works (a member country may give more, not less)
2. TRIPS-Trade Related Aspects of I.P.
a) If a country doesn’t enforce copyright laws in its own territory, the offended country can trade sanction offending country
b) Incorporates Berne Convention—Although it does not recognize moral rights
3. International enforcement
a) WIPO—World I.P. Organization
b) WTO—World Trade Organization
III. Fixation and Originality: Ch. 2, pp. 45-65; Supp. pp 353-357.
A. Key requirements of copyright in §102(a)
1. Originality-original work of authorship—see next section
2. Fixation
a) defined §101—A work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.
b) Fixation is interpreted to be a constitutional re
requires some sort of participation in the photograph by the photographer.
E. Bleistein v. Donaldson p.62
1. Δ copies Π’s circus poster and argues there is no originality b/c the Π merely drew real life
2. Rejected, the Π had to select and draw what it was going
3. Other are free to copy the original (i.e. the circus performers in this case) but you cannot copy the copy (the drawing of the performers)
4. Just b/c the poster was utilitarian (i.e. to sell circus tickets) will not take away from its copyrightability
5. Case also adopts the non-discrimination principle
a) Judges do not discriminate among categories of work
b) Judges do not judge the artistic quality of the work
c) Still in place today, although, courts may actually be doing this, they’re just not saying they’re doing it.
F. Bleistien and Burrow-Giles standards of originality are similar, although Bleistien’s may be a little easier to meet. It seems Burrow-Giles required some participation by the author, while Bleistien kind of assumed that participation
G. Alfred Bell v. Catalda p. 67
1. Π making Mezzotint engravings of public domain works
2. Δ copies the engravings arguing that they are not sufficiently original to be protected by copyright—wants originality to reflect non-obviousness of patents
