Copyright Outline

Copyright
Prof. Aaron Perzanowski
Winter 2011
 
Jan. 10
U.S. Constitution, Article I, Section 8, Clause 8
Y&L 1-13
 
Chapter 1
 
History of Copyright – Early English
Arose from invention of printing press, Crown originally gave all rights to one printing company in order to censor info – ended in 1694
House of Commons passed Statute of Anne – granted authors exclusive right to print their works for 28 years
In Millar v. Taylor, a plaintiff argued that there was a common law natural right of property in the author’s work, Court agreed, borrowing from Locke that a person has a property right in their labor
Millar was overruled by the House of Lords 5 years later, restored Ann
 
Modern American Copyright
Constitution gives Congress explicit authority to legislate, original statute in 1790 was similar to England’s, but with a 14 year limit for authors of maps, charts, and books
In 1909 it was expanded to all writing and there was an additional 28 years by renewal – total 56
New technologies like radio, tv, and phonograph created new ways to exploit, the 1909 Act had technical formalities, and international enforcement was desired
Passed a new Act in 1976 – term of life of author plus 50 years, reduced formalities, and allowed US to join the Berne Convention in 1989
 
Copyright Today
Digital Millennium Copyright Act (DMCA) increased protections, Sonny Bono Act increased term to author’s life plus 70 years
TRIPS agreement committed adopters to minimum standards of copyright protection and procedures for resolving disputes
 
Thinking About Modern American Copyright
Several ways to think about it – encourage production of valuable works, form of property belonging to the author, gov’t creates rights for those that lobby
Economics, fairness/justice, and legislation
can also think of it as a trade regulation for the printing/recording/movie industry, similar to how airlines have the FAA, etc.
 
Economic Incentive
Copyright helps authors profit from creation and sale of works, and society benefits by gaining access to works that wouldn’t have been written
Copyright allows restriction of dissemination, however, so some benefits are limited
Process of creation requires some use of existing works, so copyright can’t be too restrictive to hinder creation
Public goods have two characteristics – non-rivalrousness and non-excludability
Non-rivalrousness means that consumption by one doesn’t diminish consumption by others
Non-excludability means that it’s difficult to stop others from enjoying the good
An example of both is a lighthouse – everyone can use it and can’t stop them
Subject matter of copyrights often have both characteristics – a book can be enjoyed by everyone and it’s hard to stop someone from printing their own
Economic theory predicts that unregulated markets will under-produce public goods
Copyrights create a legal regime to give profits to authors, creating incentives for creation
It also creates artificial scarcity by preventing others from reproducing/using the work – eliminates competition and inflates price
This reduces public welfare because some people can’t afford the work and society loses benefits of future authors that might have used an existing work to create a new one but can’t afford the royalties
The term is important – too short and incentive to create is too low, too long and society suffers too much
Scope is similar – too narrow and incentive is lowered, too broad and society can’t benefit from small, incidental uses of the works
 
Fairness and Justice
Copyright protects works written with no intention of profit, which makes little economic sense – copyright exists at least for some reasons other than economics
Locke – natural right of property from bodies and labor, work results from labor
Locke also said that labor leads to property only when the person acquiring property leaves enough and as good in common to others – every author borrows from others
Authorship limits copyright in two ways – can’t copyright things you didn’t create and must leave future authors access to and use of existing works roughly equivalent to what previous authors had
 
Legislation
Congress has amended the 1976 Act more than 20 times – pragmatic responses to specific problems, not based on basic principles that elegantly shape the law
DMCA contains some basic statutory schemes and then a ton of exceptions, §110 limits the rights of holders by granting special permission to specific users of works in specific contexts
Caselaw can be contradictory due to the conflicting views on copyright in society
 
Sources of Law
Constitution
Statute – formed from statute, no common law basis, if repealed it would disappear
common law – many of the details and nuances are not explicitly spelled out in the statute, created by common law
 
Themes of the class and copyright law
relationship between copyright and technology
expansion of copyright from a regulation of the publishing trade to a system that captures everyday behavior
shift from flexible common law adjudication to a detailed regulatory statutory regime
 
 
 
1/12
 
Article 1, §8, cl. 8
granted to authors and their respective writings
 
Chapter 2
 
§102(a)
Copyright Act extends to original works of authorship fixed in any tangible medium of expression
 
102(b)
Doesn’t extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery regardless of the form described, explained, illustrated, or embodied
 
Originality
SC has said original only means that the work was independently created by the author and possesses at least some minimal degree of creativity
Copyright Act codified a long line of cases interpreting earlier versions of the statute
Act gives 8 categories of works that constitute works of authorship (non-exhaustive):
Literary works
Musical works – usually compositions, written down
Dramatic works
Pantomimes/choreographic works – have to find a way to fix it in a medium
Pictorial, graphic, and sculptural works
Motion pictures
Sound recordings – usually a recording of an actual performance
Architectural works
 
Burrow Giles Lithographic v. Sarony
SC 1884 – Miller
 
Facts:
Plaintiff lithographer, defendant photographer
Plaintiff sued over photograph of Oscar Wilde, judgment for plaintiff
Plaintiff asserts that the