Copyright Law
Parchomovsky
Spring 2008
Generally
1. Definition. Copyright creates and protects property rights in original, expressive works
2. Historical Context of Copyright
a. IP Clause of the Constitution – “to promote the progress of science and the useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Art I, sec 8, cl. 8
i. Note: The clause has a means-ends structure
b. 1976 Copyright Act
c. Sony Bono Term Extension Act (1998)
3. Exclusive Rights (RAD-PPD)
a. Reproduce
b. Adapt Work – make derivative works
c. Distribute to public
d. Public display
e. Public performance
f. Digital performances of sound recordings
4. Pressures on Copyright Law
a. Technology – makes content more valuable and facilitates unauthorized use
b. Ease with which one can get copyright protection
c. Political Pressure – when you create exclusive rights, you also create pressure groups in politics
d. An expansive trend that we are afraid to touch authors and that everything should be protected
5. Thick protection vs. thin protection
a. Low originality threshold = thin protection
i. Protection mostly limited to literal copying
b. High originality = thick protection
6. Music Industry
a. Difference between today and the past model
i. Distribution is cheap. The marginal cost of distributing a file is $0
ii. Recording costs have gone down
1. But, labels do promotion and marketing à response: its not clear that they do it in the best way to induce creation.
2. Most artists do not see a cent from record sales, because labels have all the bargaining power and the contracts are structured in a way that they do not see a cent until the label has covered all of its expenditures
b. Projections
i. This will not work – without recording labels, everything will collapse
ii. We will be much better off as a society, but there will be serious distribution problems
1. Parch – only the stars get promoted heavily, and there are all the people on the bottom who cannot rise to that level because they are being blocked
c. Substitution Effect of illegal downloads?
i. No substitution effect – no loss, at least when music is marketed on CDs and not as individual songs
ii. Substitution effect
1. Each illegal download = lost sale ($10)
2. Criticism – it is clear that not everyone who downloads music for free will buy it for $10
3. Music industry loses money, but there is still a social benefit to all of the people would pay up to $10
d. The unbundling of music is a change for the better. It allows you to get the bundle for the same price. But, there are many users there who just want one song, and they can now get it. Saves you a lot of money, because you can pay $1 for your song, instead of $10. Have more money in your pocket for other things
i. Why not let people compete with one another on equal terms
Justifications for Copyright – copyright rights restrict freedom of speech and expression, a core right in our constitutional system. There are justifications for this.
Natural Rights
a. Locke’s Labor Theory – products made through human labor are protected
1. Three Propositions
a. Ownership of the body
b. Ownership of labor
c. Mixing labor with external resources à private property
2. Provisos
a. No waste
b. Leave as much and as good for others
3. Validity of theory to copyright law
a. Copyright law is wasteful because the underlying asset is something that everyone can enjoy at the same time (con)
b. Originality does not sound like a Lockian claim (con)
c. He was not thinking about IP when Locke thought about his theory.
d. Fixation may constitute labor (pro)
e. People may expend a lot of work and get no protection (con)
f. Independent creation (pro)
Hegel Personhood Theory – expressive works are extensions of one’s minds and thoughts
1. Mechanics of theory – (1) human will; (2) human will aspires to actualize itself; (3) Step 2 requires external objects; (4) Expressive works were extensions of one’s mind and thoughts
2. Purpose – external objects are important because they allow human beings to develop themselves and their internal features
3. Validity of theory to copyright law – originality is analogous to authorship (consistent)
4. Would not support transferability of CR
Utilitarianism
a. IP Clause in the Constitution
1. Ends – promote progress of science and useful arts
2. Means – limited property rights
b. Incentive Theory
1. Public Goods problem – without copyright protection, underproduction would occur
a. Public goods – non-rivalrous (physical goods vs. informational goods) and non-exclusive
i. Note: There are ways we can exclude copiers, so it may not be a perfect public good
ii. Authors bear production & distribution costs, whereas copiers only bear distribution costs
b. With exclusive rights, authors can charge for the use of the work and by charging they can recoup their initial investment
2. Arguments against
a. No need for financial incentive to encourage creativity
i. Creativity is in our nature
ii. Fame and reputation
iii. First mover advantage
iv. Indirect financial incentives – job requirement
b. Technology can discourage copying
i. Versioning – you can constantly change your work in order to make it harder for copiers to catch up
ii. Technological protection methods – encryption, passwords, etc.
iii. Legal means
c. All monopolies result in super-competitive pricing (pricing above marginal cost)
d. Costs of copyright
i. Transactions costs – hiring lawyers, negotiating for permission to use works
ii. Rent-seeking – use of copyright to get revenue from nonprotected elements
in anecdotes, reminiscences, literary opinions, and revealing comments uttered, but never reduced to writing. Because the author had not indicated an intention to claim the utterances in question as his property, they were not protectable. Hemingway v. Random House
3. Policy arguments against protecting oral works
a. Takes speech out of the public domain
b. Creates a chilling effect on speech
c. It is very minimal to fix the conversation by recording it
d. The cost to protecting oral statements are enormous
i. Costs to free speech
ii. Litigation costs
f. Prof.’s thoughts on fixation – the requirements should be even more stringent
g. Examples:
1. Nick and Tony are improvisational comedians. During their act, they take suggestions from audience members and improvise skits. They learn that some of their acts have been copied by local standup comedians. Can they get copyright protection without resorting to a scripted act. Yes, just videotape it.
2. Two folks singers create a song and make an audiotape of themselves performing the song. Do they have a musical work? A sound recording? And is the tape a copy or a phonorecord? They have both a musical work (the actual song) and a sound recording (the recording of the song). Both are in the phonorecord.
3. Author writes a story and reads it in public. She then inadvertently destroys the only copy of the story. Does Author lose her copyright because her work is no longer fixed? No.
Originality – a work must be original to be copyrighted
a. Rule. A work is original if it is an (1) independent creation, with (3) a modicum of creativity
1. Independent Creation – You do not have to be first in time. All you need to do is come up with your expression without copying from others
a. Machine Devices and Originality – as long as there is human agency involved, independent creation is satisfied. An author may use a device in a creative way to produce an original work. Burrow-Giles
i. Example: In a photograph, one might pose the subject, select and arrange the subject’s clothes, and choose the lighting
ii. Note: This argument could extend to webcams and security cameras
1. Prof’s view – these things should not be protected because there is no need for additional incentives—especially for security cameras
iii. Software Authorship
1. Three options for machine authorship
a. Give it to the producer of the software
b. Give it to the individual user
c. Give it to no one – put it in the public domain
