Copyright
Balganesh
Fall 2016
I. Copyright in Context
Summary
1. Sources of U.S. Copyright Law
Article I, section 8, clause 8 of the Constitution
Empowers Congress to enact laws with particular purpose (to promote the progress of science and the useful arts—utilitarian/consequentialist/instrumental purpose), specifies structure (exclusive right) with limits (limited time)
Title 17
Codified in 1976 and frequently amended.Attempt to comprehensively codify previous judge-made law that wasn’t in 1909 Act.
Large parts remain uncodified or delegated to courts (e.g., fair use)
Federal common law of copyright
Fair use, substantial similarity
2. Theories of Copyright
Incentives—dominant in US system
Copyright exists to solve a public goods problem
Nonrivalrous consumption—no natural scarcity, multiple simultaneous users can exist
Nonexcludability—impossible to exclude through use (e.g., national defense, air)
Makes copying very easy and interferes with inducement to create
Limited market exclusivity in order to induce creative expression
Solving de facto nonexcludability with de jure exclusion
Utilitarian purpose: copyright provides a marketable right for the creators and distributors of copyrighted works, which in turn creates an incentive to produce and disseminate new works
This doesn’t explain why copyright is the best mechanism instead of subsidies, etc.No particular solution necessary.
Need to calibrate/measure incentives.
Doesn’t specify what incentives necessary for creation.Not clear that much creation occurs only because of economic interests
Note that incentive theory was created after copyright law was in existence
Property rights can produce static and dynamic inefficiencies
Static: deadweight loss.Since dealing with informational resource, exclusive right operates as a monopoly.This increases price above what some people will pay.
Dynamic: all creation is derivative.Too much copyright protection leads to less creativity in the future.Today’s outputs form tomorrow’s inputs.“Standing on the shoulders of giants.”
Authors’ rights
Philosophical construct: authorship involves investment of labor and/or personality into the creation.Ownership derives from this investment.
Prevalent theory in Europe.
Utilitarian (Locke’s labor theory): you deserve the benefit of investment of labor.Ensure people work to progress of society as a whole.Conditions: (1) “enough, and as good”—unowned resources available to others in some type of commons (public domain), (2) “no waste”—greed and hoarding bad.Property rights only appropriate when there’s enough left in the commons for others.
Nonutilitarian/moral rights (Hegel’s personality theory): inalienable right stemming from act of creation.Integrity and attribution/paternity rights.Hegel: internal will of each person externalizing itself in a tangible object.Radin’s personhood theory of property: stronger property rights in those objects most closely bound up with your personhood.
First Amendment/democratic theory (Netanel)
Origins: temporal lag (Copyright Clause written before First Amendment), copyright law was intended to serve First Amendment purposes
Copyright is a free-speech-enabling device
Production function (analogous to incentives): incentives with democratic endàincremental incentive
Structural function (market-based creation): patronage limits creativityàcopyright democratized by individual market demand
Expressive function (symbolic support for creativity): least plausible
3. Why care about theory?
As an interpretive mechanism
Theories are both enabling and limiting
Can be used in all sides’ arguments
Theory rarely explicit in opinions—nascent rhetorical use
4. Public domain
Material in the public domain is not copyrighted
Develops in several ways
Temporal limit
Subject-matter limit (unoriginal expression, idea/expression dichotomy)
Dedication/abandonment (protection is automatic, but you can opt out—e.g. with a creative commons license)
Public domain material is often contained in protected works—have to filter to locate it.
5. Users’ rights
Standard economic theory views copyright in terms of production and consumption.User lies somewhere between the two—both consumer and producer.
Cohen: three types of users
Economic user: given set of tastes in search of the best deal
Postmodern user: limited and vaguely oppositional agency in a world in which all meaning is uncertain and all knowledge relative
Romantic user: life is a cycle of sophisticated debates, discer
ibutions: Dispute Settlement Body and Appellate Authority
WCT and WPPT (1996)
None of these are self-executing—Congress to reconcile inconsistencies
II. Domain of Expression- Section 102
B. Idea/Expression Distinction
Summary
1. Basics
Copyright protects expression, not ideas.
Unlike patent, which protects ideas.
If a given procedure is reduced to written form, this is protectable.No one can copy the expression of the procedure, but the procedure itself is an unprotectable idea.
Work that CONTAINS an idea, procedure, etc., is protectable.
You can’t be the “author” of a fact or idea—just the “discoverer.”
Another important copyright filter.Overlaps with originality.
Derives from section 102(b).
No copyright for idea, procedure, process, system, etc., regardless of form in which it’s explained, described, embodied, etc.
Unclear how originality and idea/expression interact—separate?Sequenced?Overlapping?
2. Merger doctrine
When an idea can be conveyed only in one or a couple of expressions, idea and expression are deemed merger and rendered uncopyrightable.
Idea swallows the expression, not vice versa.
3. Potential purposes
Channel ideas to patent system?
Patent law deals with protecting ideas and requires a high threshold.Allowing copyright of ideas would let people circumvent the patent threshold.
Public domain/incremental creativity?(Probably the best justification?)
Public dissemination of knowledge is important.Don’t want to give a monopoly on knowledge.
Evidentiary reasons?
Institutional reasons?
Inadequacy of copyright’s filters?
Maybe ideas at play in copyright are abstract.Even patent excludes abstract ideas.They are the core of the First Amendment.Patent only protects concrete ideas.Want to exclude abstract ideas so people can build on them.
