Copyright Outline

Copyrights Outline

I. Introduction

a. Art. I, Sec. 8, Cl. 8.

i. “To promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

b. The Copyright Act of 1976 = current law

i. 28 U.S.C. §1338(a) – federal courts have jx over copyright actions

ii. Old Copyright law

1. Before 1976 act there used to be a lot more formality requirements (had to stamp copyright on it, had to be published, etc) – then did away with all that with Byrne convention

c. Theories of IP

i. Utilitarian – maximize social welfare

1. Balance between innovation and allowing public to enjoy them

a. Benefit public at large

2. “Maximize net social welfare”

3. On one hand, the power of exclusive rights to stimulate the creation of inventions and works of art and, on the other, the partially offsetting tendency of such rights to curtail public enjoyment of those creations

ii. Labor/Locke Theory – own the labor

1. Person who labors upon resources that are unowned or in common has a right to his or her fruits of labor and state should protect and enforce that

2. Public interest really doesn’t come into play (author is more front and center in this theory)

3. Can use things in common if there is enough left for others

a. Can’t be any net harm

b. But Locke says that assignment of patent right is ok because it would not have existed without the inventor’s efforts and therefore consumers are helped not hurt by it

c. Nozick would say that others who independently invented something would have to be permitted to sell it and patents should not last longer than it would take someone to invent that thing

iii. Personhood/Personality Theory – fill people’s needs

1. From Kant and others and says you’re protecting the extension of the individual themselves and its critical to the “satisfaction of some human needs” – extension of an individual’s persona

2. Hughes argues that we should be more willing to accord legal protection to highly expressive works (e.g. novels and not genetic research)

3. In some systems, they treat personhood rights much greater

iv. Social planning theory – just and attractive culture

1. Property rights should be shaped to help foster the achievement of a just and attractive culture (goods invented can help achieve this)

2. Different but similar to utilitarian theory

3. E.g. copyright law providing incentive for creative expression and a second more structural function

d. Alternative ways to protect

i. Lead time (delay in time like China I believe)

ii. Norms

1. Examples: comedy, professors, Chicago snow shoveling

iii. Grants/Gov’t

iv. Alternative business models

v. Fisher says what if instead of treating it like property, we create a liability rule, not that everyone is legally excluded form content, but everyone can partake of it, but the price is a statutorily determined fee that everyone has to pay. We can’t prevent them from getting it, so make them pay.

e. Non-rivalrous

i. Enjoyment of them by one person does not prevent enjoyment of them by other persons

f. Non-excludable

i. Once they have been made available to one person, it is impossible or at least difficult to prevent enjoyment of them by other persons

II. Copyright Basics

a. US Copyright law

i. Protects original works of authorship that are fixed in a tangible medium of expression

b. Exclusive rights

i. Make copies

ii. Distribute copies

iii. Make adaptations of work

iv. Publicly perform the work

v. Publicly display work

vi. Perform via digital transmission

c. Requirements

i. “Originality” = low bar

ii. Fixation

1. Copyright attaches as soon as it is fixed

d. Length

i. Generally for life of author + 70 years

e. Registration

i. Optional, but prereq. to bringing an infringement lawsuit

III. Fixation

a. Generally not a big deal

i. Two requirements:

1. Embodied in a tangible medium and

2. For more than transitory duration

b. § 102(a) – subject matter of copyright in general.

i. (a) Copyright protection subsists… in original works of 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

8. architectural works

ii. “Now known or later developed” came from piano rolls in which maybe people cannot read it now but in the future there may be technology that can

c. §101 “copies”

i. Copies are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘copies’ includes the material object, other than a phonorecord, in which the work is first fixed.

ii. Copy does not = something that is a copy in everyday terms (it can be the original)

1. A copy is the original if it satisfies this definition – so if I write on a piece of paper a song, that is a “copy”

d. §101 “phonorecords”

i. Phonorecords are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any new method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘phonorecords’ includes the material object in which the sounds are first fixed.

e. § 101 “fixed”

i. 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. A work consisting of sounds, images, or both, that are being transmitted, is fixed for purposes of this title if fixation of the work is being made simultaneously with its transmission.

1. So the transmission clause (“sufficiently permanent” – I believe) solves the problem of a live broadcast of a performance of a game (e.g. people streaming NFL games saying it’s live)

ii. Author may give authorization to another to embody something in a copy

1. Priest authorizes someone to take down his notes then he has fixed it in a tangible medium of expression

f. Fritz v. Arthur D. Little [34] – fixation and independent creation

i. (1996) K paid F to teach his L&M course and F adlibbed it and K took notes.

ii. Court held that K just speaking was oral and not recorded so no fixation element met

1. “Original works spoken aloud can be copied (and independently copyrighted) by everyone else, if they have not previously been fixed in a tangible medium of expression”

2. Independent creation – Ks use of F’s oral creations is