Copyright
Professor Shyam Balganesh
Spring 2011
U.S. Constitution, Art. I, §8, Cl. 8.
– “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.”
o Distinctly utilitarian/consequentialist/instrumentalist
§ Is this meaningful? Does it impose any limits?
§ Incentive theory/utilitarian basis of copyright is taken to be a given, even though it’s not clear that it intended a specific interpretation for the law
o Specifies purpose for which Congress can enact copyright law
§ Specifies structure for such a law
§ “Science” means all knowledge
o doesn’t say “property” – says “exclusive right”
§ was there a conscious intent that it not be property? Is this significant?
o Doesn’t just empower congress to enact legislation – has its own limit (limited time)
§ Could that be perpetuity minus one day? Or is it REALLY limited?
Copyright Act of 1976 – Title 17 (17 U.S.C. §101 et seq.)
– Comprehensive codification in 1976. (amended a lot since) (Title 17)
o Attempt to codify copyright law that was essentially judge-made
o But realized that some aspects of copyright are best left to judges
– Large parts remain uncodified, or delegated to courts.
o 90% codified – 10% uncodified (the most important parts)
o fair use doctrine is codified but Congress specifically said the codification shouldn’t operate as a limit – use the term “common law style”
o doctrine of substantial similarity – test for what is a copy: this entire jurisprudence is entirely uncodified, a creation of fed courts
– Different from previous acts
Common law statute?
Federal common law of copyright
– Fair Use
o fair use doctrine is codified but Congress specifically said the codification shouldn’t operate as a limit – use the term “common law style”
o much more liberal in US
§ most other countries have a fair dealing system which has more limited exceptions
§ US system is good because it allows courts to define use – Balganesh
– Substantial Similarity
o doctrine of substantial similarity – test for what is a copy: this entire jurisprudence is entirely uncodified, a creation of fed courts
A. What is copyright?
Copyright goes to:
– an original work of authorship fixed in a tangible medium of expression
Concepts included
– original and fixed
– idea/expression distinction
– the public domain
– authorship
– copyright does not require registration or notice
– duration
o author = person: lifetime + 70 years
o author = corporation: 95 years from publication or 120 years from creation, whichever is shorter
– categories of works that are copyrightable
– civil/criminal copyright infringement
– limiting doctrines
o like fair use
– contracts/licenses
– technological protection measures
– federal preemption of state law
– copyright infringement lawsuits
Exclusive rights (sticks in the bundle)
– 1) right to reproduce the work
– 2) right to prepare derivative works based on the work
– 3) right to publicly distribute copies of the work
o for some: right to publicly display or perform work
o for sound recordings: only performance by digital transmission
B. Theories of copyright
Main theories
– Incentives
– Authors’ rights
– First Amendment/Democratic Theory
o The Public Domain
o Users’ Rights
§ Historical Timeline
§ International Treaties
but they don’t always tell us who they apply to: D’s? P’s?
dy, tax credits, stuff other than exclusive rights
– drawbacks
o theory doesn’t say why it has to be exclusive rights to accomplish this
o incentive theory did not give birth to copyright theory, but was born decades later to explain it
o behavioral economics: it isn’t clear that artists create rationally for economic reasons – might go against the incentive theory
o dead weight laws: an exclusive right is like a monopoly on a resource
o standing on the shoulders of giants effect: creativity is largely derivative
§ if the property right is too extensive, it will inefficiently limit future creation
o despite all these drawbacks to incentive theory, courts treat it like the reason behind copyright
Trotter Hardy, Property (and Copyright) in Cyberspace
– Information works require an incentive for their creation
o Can be copyright law
o But more broadly: some assurance that copying will be limited
o Zero copying not necessary – other businesses choose to operate where some copying happens
– How to limit copying? – four factors in the pie
o 1) entitlement-like protection
§ rights inhere in the author or the work and are binding on the whole world
o 2) contract-like protection
§ only binding on those consenting to be bound
o 3) state-of-the-art limitations
§ how physically hard it is to copy (photocopying a magazine not efficient)
o 4) special-purpose technical limitations
§ encryption/scrambling
