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University of North Carolina School of Law
Gerhardt, Deborah R.

FALL 2014
1.  Course Overview & Introduction to Copyright Theory
Pages: 3-32
1.      Copyright in Context – pg. 3
a.       Copyright law in the U.S. is a federal statute, codified in Title 17 of the U.S.C.
b.      Derived from the U.S. Constitution, Article I, § 8, Clause 8 (Intellectual Property Clause)
c.       The Copyright Act of 1976 grants a limited statutory monopoly in original works of authorship that are fixed in a tangible medium of expression.
d.      Idea/expression distinction: limits the scope of copyright protection to the expression of ideas and facts, and excludes from protection the ideas or facts themselves (these are part of the public domain).
e.       The Copyright Act does not require registration as a condition of copyright protection.
f.       Once an original work of authorship is fixed in a tangible medium of expression, that work is protected by federal copyright law.
g.       The Act limits a copyright’s duration.
h.      The Act grants exclusive rights to the copyright owner to:
·   reproduce the work
·   prepare derivative works based on the work
·   publically display/distribute copies of the work
A.     The Theoretical Underpinnings of Copyright Law – pg. 5
i.        The fundamental purpose of the U.S. copyright system is to “promote more …Progress.”
1)      Incentives for Authors and Publishers – pg. 6
j.        The public goods problem in intangibles: the cost of creating new works is often high, but the cost of reproducing them is low and once the work is created, reproducing it in no way depletes the original.
k.      Nonrivalrous consumption: One party’s use of the goods does not interfere with another party’s use.
l.        Nonexcludibility: Once the public good is produced, there is no way of excluding others from enjoying its benefits.
m.    Copyright law gives the copyright owner a legal entitlement to exclude others from enjoying certain benefits of the work.
n.      Copyright law exists to provide a marketable right for the creators and distributors of copyrighted works, which in turn creates an incentive for production and dissemination of new works.
o.      Trotter Hardy’s “Slices of the Pie” 4-part Aggregate Assurance – pg. 7
·   Entitlement-like protection:
1.      Informational products have an “owner” and this owner has some “rights” that would be violated by unauthorized copying
·   Contract-like protection:
1.      Protects info only b/c two or more parties have agreed to treat the product as protected
2.      Those not a party to the K are not bound by its terms
·   State-of-the-art limitations:
1.      Making copy entails differing costs depending on what is being copied and which medium is being used
a.       If someone has to copy a book by hand, it will limit how many copies will be made
·   Special-purpose technical limits:
1.      Cable company uses signal “scrambling” to block movie channels
2.      The customer must pay extra to have these channels “descrambled”
3.      Another example is a software user key
·         The overall size of the pie is what matters to author’s b/c the overall size determines how limited the unauthorized copying of their product will be.
·         The taxonomy implies that if the one of the “slices” of the pie grows or shrinks, other slices must shrink or grow proportionally if the producer is to preserve the same overall assurance of limited copying.
2)      Authors’ Rights – pg. 10
·   Locke’s “natural rights” theory said that labor gives rise to ownership of tangible property.  Applying this to intangible property is difficult.
·   Copyright law does not ask how hard someone worked in creating a particular work and then assign rights commensurate w/ that effort.
·   In the U.S., the utilitarian justification for copyright protection predominates, as evidenced by the constitutional grant of authority.
·   U.S. copyright law does not fully embrace protection for moral rights.
3)      Public Domain – pg. 13
·   The existence of the public domain is a foundational principle of the U.S. copyright system, and is mandated by the Constitution.
·   Includes works for which copyright protection has expired.
·   Passage of works into the public domain is mandated by the U.S. Constitution b/c it offers protection for “a limited time.”
·   Portions of works protected by copyright are owned by no one and are available for any member of the public to use.
4)      An Uncensored Marketplace of Ideas – pg. 15
·   Private sector copyright industries have attained an agenda-setting power that rivals state officials undermining the democratic character of public discourse by skewing it towards those who can afford the products.
5)      A theory of Users’ Rights – Is a doctrine of user’s rights needed? – pg. 16
                                                              i.      Economic User: enters the market w/ a given set of tastes in search of the best deal
                                                            ii.      Postmodern User: exercises limited and vaguely oppositional agency in a world in which all meaning is uncertain and all knowledge relative
                                                          iii.      Romantic User: searches for the most freedom-enhancing media technologies
                                                          iv.      Situated User: patterns of consumption and the extent and direction of his own authorship will be continually shaped by his cultural environment
6)      What Progress and Whose Welfare? – pg. 19
·   Western-style copyright systems do not fully account for some other cultures’ understanding of what progress and welfare mean.
·   Does copyright function primarily as a tool for stimulating creativity or primarily as a tool for commercializing it?
B.     The History of U.S. Copyright Law – pg. 21
1)      From Censorship to Markets
·   The first real copyright statutes were tools for gov’t censorship and press control
·   England, 1710 – The Statute of Anne was expressly meant to be “an act for the encouragement of learning.”
2)      Progress, Incentives, and Access – pg. 23
·   The Framers of the Constitution incorporated the requirement that copyright must serve a public purpose into the wording of the Intellectual Property Clause.
·   The Constitution, like the Statute of Anne, also makes explicit the guarantee of a public domain.
·   The ‘exclusive Right” granted to authors may only be for “limited Times.”
·   Library of Congress is the repository of works deposited under the Copyright Act.
·   Wheaton v. Peters, (1834) – Court ruled that the opinions of the Court themselves could not be copyrighted, but other material added by the Court’s reporter, such as summaries of the arguments of the parties, are eligible for protection.
·   Donaldson v. Beckett – Court rejected any kind of common law copyright in published works; thus, the copyright in such works is governed exclusively by the federal statute adopted by Congress. That is the rule today.
·   Emerson v. Davies, (1845) – Justice Story reasoned that the nature of authorship requires some freedom to build on certain aspects of past works because “every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.
·   Folsom v. Marsh, (1841) – Justice Story expressly recognized that using selections from a preexisting work “fairly” does not constitute an infringement of copyright.  This is recognitio

authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
§ 1101. Unauthorized fixation and trafficking in sound recordings and music videos
(a) Unauthorized Acts.–Anyone who, without the consent of the performer or performers involved–
(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,
(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or
(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in §§ 502 through 505, to the same extent as an infringer of copyright.
(b) Definition.–In this section, the term “traffic” has the same meaning as in § 2320(e) of title 18.
(c) Applicability.–This section shall apply to any act or acts that occur on or after the date of the enactment of the Uruguay Round Agreements Act.
(d) State Law Not Preempted.–Nothing in this section may be construed to annul or limit any rights or remedies under the common law or statutes of any State.
Fixation & Work of Authorship – pg. 45
A.     The elements of copyrightable subject matter
·         From an economic perspective, the grant of exclusive rights entails a variety of costs.
·         Any system of rights entails costs of administration and enforcement.
·         The higher price means that some consumers will not be able to purchase copies of the protected work.
·         This limits dissemination of the knowledge contained within the work-knowledge that might provide the basis for further progress.
·         Simple economic theory would hold that a system of exclusive rights should not incur these costs unless the benefits it produces exceed them.
·   Copyright protection subsists in original works of authorship fixed in any tangible medium of expression.  17 USC §102(a).
·   Subject Matter: 17 USC §102(a)
1.      Literary works;
2.      Musical works, including any accompanying words;
3.      Dramatic works; including any accompanying music;
4.      Pantomimes and choreographic works;
5.      Pictorial, graphical, and sculptural works; (PSG)
6.      Motion pictures and other audiovisual works;
7.      Sound recordings; and
8.      Architectural works.