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COPYRIGHT TUTORIAL

Professor Samuelson

1/19/99

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WHAT IS “IP”?

• Intangible rights in intangible information• Patents for technological inventions• Trade secrets for commercially valuable

secrets (e.g., source code, Coke formula)• Trademarks (e.g., Coke) to protect consumers

against confusion• Rights of publicity (e.g., Elvis heirs cf.

imitators)

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DIFFERENT THEORIES

• Utilitarian (e.g., grant rights to create incentives for beneficial investments)

• Natural rights (e.g., persons have natural rights in their creations if valuable)

• Personality-based (e.g., my creation is an extension of myself)

• Unjust enrichment (e.g., others ought not be unjustly enriched by appropriating ideas)

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U.S. CONSTITUTION

• Congress empowered to promote progress of science and useful arts

• by securing to authors and inventors

• exclusive rights

• for limited times

• in their respective writings and discoveries

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CONTOURS FROM CONST.

• Purpose: promote science

• Who: authors

• How: exclusive rights

• How long: limited times

• For what: writings

• Other constitutional provisions of note: supremacy clause, 1st A, commerce clause

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SUBJECT MATTER OF COP.

• “Original” works of authorship (Feist: white pages listings not “original”)

• “Fixed” in a tangible medium of expression (MAI: RAM copy fixed enough to infringe)

• Categories of works: literary works, musical, dramatic, pictorial and sculptural, architectural, audiovisual, sound recordings, choreographic

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MULTIPLE COPYRIGHTS

• Think of a typical music CD which has:

• Music

• Lyrics

• Sound recording

• Photograph or drawing or both on cover

• Explanatory text about recording artist

• Rights clearances a complicated process

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“UNCOPYRIGHTABLE” STUFF

• Ledger sheets and blank forms

• Rules and recipes (“merger”)

• White pages listings of telephone directories

• Facts and theories

• Ideas and principles

• Methods of operation/processes

• Bicycles and bicycle racks

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COMPILATIONS & DERIVATIVE WORKS

• Originality in selection and arrangement of data elements = prot’ble compilation

• Original expression added to derivative as cf. underlying work = prot’ble d.w.

• Copyright doesn’t extend to preexisting material (e.g., data or public domain play)

• Use of infringing materials will

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WHO OWNS?

• The creator of the work (“author”)

• But “work for hire” rule means employer is “author” of employees’ work

• Commissioning party generally does not own copyright; special rules

• Jointly authored works: contribution of expression w/ intent to make part of inseparable whole

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HOW AUTHORS GET RIGHTS

• Attach automatically by operation of law from first fixation

• Last for life of author plus 70 years (or 95 years from publication for corporate works)

• Register with Copyright Office to ensure broadest remedies and to bring suit

• Publication not required, but once work is published, deposit with LOC may be

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WHAT OWNER OWNS

• Exclusive rights to reproduce work in copies,• to prepare derivative works,• to distribute copies to the public,• to publicly perform and display work• “Moral rights” for works of visual art• Secondary infringements (e.g., facilitating

others knowing they’ll infringe)

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HOW AUTHORS EXPLOIT RIGHTS

• License rights to others on exclusive or non-exclusive basis

• Sell (“assign”) rights to others (e.g., publisher)

• Develop products yourself• Join copyright collective (e.g., ASCAP) so

that they can do licensing for you• Sue people who exploit without permission

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LIMITS ON EXCLUSIVE RTS

• Fair use (e.g., Sony Betamax, Acuff-Rose)• First sale (e.g., libraries, bookstores)• Library-archive (e.g., ILL, course reserves)• Classroom performances• Small operations (e.g., radio in fast food joint)• Specialized inter-industry compulsory

licenses (e.g., cable-network TV)

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FAIR USE & PUBLIC DOMAIN

• People make fair uses all the time (e.g., photocopy Dilbert cartoon or news article)

• Fair use depends on multiple factors, including the potential to harm markets

• Fair use sometimes important for democratic discourse (e.g., parody of politician’s speech)

• Public domain = reservoir from which authors can draw (e.g., Shakespeare)

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DIGITAL COMPLICATIONS

• Digitized photographs of public domain works (e.g., Microsoft claims ownership)

• Colorization of movies (e.g., what if it results from automation?)

• Databases (e.g., very easy to steal the data and leave the base)

• NBA v. Motorola (“stealing” data on NBA games for sports pager)

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DIGITAL COMPLICATIONS--2

• In digital form, all works are literary works• Can’t access or use digital information

without making copies• Very cheap and easy to make multiple copies

and disseminate via networks• Very easy to digitally manipulate w/o

detection• People expect it to be free or nearly so

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WHITE PAPER ON IP & NII

• Full potential of NII won’t be realized unless IP/copyright owners are adequately protected

• Many are withholding works from the ‘net because of threat of piracy

• Copyright can be adapted to digital environment, need a few changes

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WHITE PAPER ISSUES

• Temporary copies in RAM (reading or browsing as infringement?)

• No more fair use (if can be licensed, must be licensed; object to fair use “tax”)

• No more first sale/sharing rights (first sale only permits redistributing same copy, not making new ones)

• OSP strict liability for user infringements

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WHITE PAPER ISSUES--2

• Tampering with copyright management information should be illegal

• Need to outlaw circumvention of technical protection systems

• Need to outlaw manufacture or distribution of circumvention technologies

• Get int’l treaty to universalize these new norms

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WIPO COPYRIGHT TREATY

• Reproduction right applies to digital (no agreement on temporary copies)

• Exclusive right to communicate digital works to the public by interactive service

• Fair use and other exceptions can apply as appropriate; new exceptions OK

• Merely providing facilities for communication not basis for liability

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WIPO TREATY--2

• Tampering with copyright management information to enable or conceal infringement should be illegal

• Need for “adequate protection” and “effective remedies” for circumvention of technical protection systems

• Treaty not yet in effect, but likely to be

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BASIC INT’L SITUATION

• Berne Convention for Protection of Literary & Artistic Works

• Paris Convention for Industrial Property• “National treatment” (do unto foreign

nationals no worse than do unto own)• Berne has some minimum standars• WIPO administers treaties, hosts meetings to

update or revise

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BASIC INT’L SITUATION--2

• TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement

• National treatment, but minima for seven classes of IPR

• Must have substantively adequate laws• Must have adequate remedies and procedures

and must enforce effectively• Dispute resolution process now available

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DEEPER ISSUES

• U.S. economic strength depends on copyright and IPR

• Others want to appropriate w/o paying (e.g., China)

• Distorts trade and incentives to invest

• But will trade-dominated policy promote other values society holds dear?

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DEEPER ISSUES--2

• What costs does society suffer from extending copyright? (e.g., term extension)

• How can developing or underdeveloped countries expect to comply with TRIPS?

• Markets and technologies are rapidly changing

• Unclear how to carry over balancing principles to new environment