Copyright Outline

Copyrights Outline
Fall 2012 – Priest
~ Introduction ~
 
Elements: (1) original (2) work of authorship (3) fixed in a tangible medium of expression
 
THE CURRENT LEGAL FRAMEWORK
 
1.      The Constitutional Basis and the Powers of the States
o    Art 1, §8, clause 8: “Congress shall have Power ..To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . .” – AKA Copyright and Patent Clause
o    Series of three pairings, the first term of which is accepted to refer to Congress’s power to pass copyrights laws, and the second term its power to pass patent laws
—  “Science” and “Useful Arts”
—  “Authors” and “Inventors”
—  “Writings” and “Discoveries”
o    Thus, Congress’s power to pass copyrights laws is:
—  “To promote the progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings”
o    Under § 301 state laws that track subject matter of federal copyright law are explicitly pre-empted
 
2.      The Copyright Act of 1976
o    Became effective January 1, 1978, Replaced the Copyright Act of 1909
o    Basic structure and principles of current copyright law are retained from this act
o    Current copyright act uses all of title 17 with the exceptions of chapters 9 and 13
o    First Five Sections of the Copyright Act
—  Chapter 1 – Subject Matter and Scope of Copyright
G   § 101: Definitions
G   § 102: Subject matter of copyright (i.e. what gets protection) & key limitations
F   “copyright subsists in original works of authorship fixed in any tangible medium of expression.”
G   § 106:  What a copyright owner owns laid out in six exclusive rights
F   But following 16 sections limit these rights
—  Chapter 2 – Copyright Ownership and Transfer: who owns copyright in a work
G   Issues of initial ownership
G   Conveyances of copyright interests
G   Provides for a system of recording conveyances
—  Chapter 3 – Duration of Copyright: limited times
G   There are different terms of copyright depending on who the owner is
G   Congress has changed the term of copyright many times since 1790, and has never done so purely prospectively, but has always granted benefit to some works created before
G   § 301: Specifies when overall federal copyright preempts state law
—  Chapter 4 – Copyright Notice, Deposit and Registration: formalities
G   Placement of copyright notice; Registration of claims of copyright; Deposit of copies of registered or published works
G   Notice, registration and deposit are not prerequisites for obtaining/retaining copyright protection anymore, but the Act still provides advantages to those who register their works and display notice and published copies, and sanctions for those who do not comply with deposit requirements
—  Chapter 5 – Copyright Infringement and Remedies
G   Litigation chapter – When you can file a copyright suit, what remedies you can get, etc
THEORETICAL FRAMEWORKS
 
1.      Instrumentalism and Economic Analysis
 
Ø  “To Promote the Progress of Science”
Ø  Goals of copyright
o   To further creation and dissemination of knowledge and culture
o   To encourage authors to undertake activities that promote advances in knowledge
 
(a)    Conventional Economic Analysis: Works of Authorship = Public Goods
—  Consumption of works of authorship are non-rivalrous       
G   I can read a novel and so can you and the fact that I read it doesn’t prevent you from reading it or diminish or enjoyment of it
G   Novels can be copied at virtually no cost relative to the cost of their initial creation
—  Works of authorship are non-excludable
G   Authors would often find it too expensive to prevent non-customers from enjoying works
G   Like fireworks displays in an urban setting
—  Public goods create a problem of dynamic efficiency: concerning the proper incentives to create new quantities of a resource (as opposed to static efficiency where supply is fixed)
G   Copyright law = traditional legal answer
G   Creates exclusivity by forbidding copying and imposing sanctions on those that do
G   Possibility of creating a profit for author = incentive to create
—  Problems
G   Deadweight loss to society occurs when ppl who would otherwise by the book do not because it is too high of a cost, or would want to use it but do not because of prohibitive cost or difficulty of obtaining permissions
G   Two schools of thought on how to deal with this
F   Copyright Minimalism: we should only grant just enough rights to induce an author to create a work and no more
¨  Ex: limit the term of copyright – if an author would create the work if got 56 years of protection, don’t give them 95
¨  Ex: limit the scope of copyright – if the use of small excerpts from work wouldn’t affect the normal market for the work we should not give author right over them
F   Copyright Maximalism: answer is not to limit the rights of copyright owners but to extend them and seek way to decrease negotiation costs and barriers to xfer of rights
¨  Price discrimination: let author charge 25 to one and 10 to another
³  à grant copyright owners right to prevent resale and reduce restrictions on transfer of rights to solve this problem
 
(b)   Incentives Independent of Copyright Law
—  “State of the art” limitations on copying
G   Authors of works that are inherently hard to copy are protected by those difficulties
F   e.g. marble sculptures, oil paintings
F   versus sound recordings (today)
—  Lead Time
G   Author/publisher is only source for work for period of time before it has been printed or copies of it have been made and can make lots of money just selling initial rights
G   But this advantage is decreased by better technology allowing faster copying
—  Special-Purpose Technical Restrictions
G   Barriers designed and created by authors/publishers to prevent copying/distribution
G   E.g. time limited DVDs that degrade within days upon exposure to air
G   But this kind of thing can be used to create longer and broader protection than the law would normally allow for so that is a criticism
—  Social Norms
G   Hard to protect jokes but comedians have a tight-knit community where if word gets out one is copying another’s jokes he is shunned and gets bad rep
G   But might be limited to close knit communities like this which is uncharacteristic of many other types of markets for works
—  Alternative Business Models
G   Some works would be created even if authors could not recoup any of their investment through sale of copies of that work
G   Ex: telephone companies compiling and distributing directors b/c leads to more telephone use which generates income for the company, singers distributing songs to promote concert, law professors writing articles to build scholarly reputation and profit through employment at law schools or expert witness testimony
G   Implications on songwriting in particular on p. 16
—  Government Funding & Levy Systems
G   Gov could pay authors to create works and then make them freely available
G   Gov could set up competitions and award prizes to stimulate creation of new works
G   Levy system by taxing recording devices and then allocating receipts to musicians based on some analysis of how popular their music was, etc
—  Cumulative effects of all of the above?
G   Against Intellectual Monopoly excerpt on pp. 18-20: Norton got publishing rights to 9/11 report after it has been released for free to public, and rushed copied it and got rights pursuant to agreement to rush copy and provide free copies to 9/11 victim families and only charge 10 dollars. Evidence suggests it got profit
 
2.      Labor and Personality Theories
o    Labor Theory
—   Philosopher John Locke
—   Each person has a right to what she created with her own labor
—   Courts sometimes seem to bend the “originality” requirement to protect works significantly lacking in creativity in which people have invested a great deal of labor
—   Disagrees with incentive approach where if 50 years will do it don’t grant 90 – under this theory if a person should own what he created why only grant it for a limited time?
o    Personality Theory
—   Works should be protected because they are extensions of the personalities of the author
—   Traced to German philosophers Kant and Hegel
—   Theory has led to recognition of “moral rights” in French and German law
G   E.g. the right of “integrity” and “attribution” which allow authors to prevent modifications of their works that are inconsistent with their artistic vision
 
 
 
 
 
 
3.      Political Theory and Theories of Justice
o    Political theory of copyright – a tool to protect democracy
—   Through production function, copyright encourages creative expression in a wide array of political social and aesthetic issues that = vital components of democratic civil society
—   Through structural function, copyright serves to further the democratic character of public discourse – by granting rights to authors it fosters development of independent sector for creation of original expression that results in ppl profiting from audiences rather than depending on the state or elite largess – and copyright limitations on rights ensures that possibilities for others to do the same are preserved
o    Authors don’t know where they are positioned in society or history/future gene