Copyright ICopyright I

Class 3 Notes: January 20, Class 3 Notes: January 20, 20042004

Law 507 | Intellectual Property | Spring Law 507 | Intellectual Property | Spring 20042004

Professor WagnerProfessor Wagner

Copyright © R. Polk WagnerCopyright © R. Polk WagnerLast updated: 04/20/23 06:34 AM

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Today’s AgendaToday’s Agenda

1. Cleanup: Economics and Intellectual

Property

2. The Basics of Copyright

3. Requirements for Copyright

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Economic Analysis of Intellectual Economic Analysis of Intellectual PropertyProperty

The Economic mechanism:The Economic mechanism:• IP rights => rights to exclude others• Allows price to be set above marginal cost

o Note that marginal cost of information = 0

• Returns allow recovery of investments, incentives

Economic costs:Economic costs:• Deadweight loss (reduced production)• Less diffusion of information• Races and rent-seeking

Note that IP rights are not often Note that IP rights are not often “monopolies”“monopolies”• In some circumstances, perhaps

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Economic Analysis of Intellectual Economic Analysis of Intellectual PropertyProperty

The Basic Economic Challenge: Balancing The Basic Economic Challenge: Balancing Benefits vs CostsBenefits vs Costs

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Copyright BasicsCopyright Basics

The History of CopyrightThe History of Copyright• How is copyright’s history driven by technological

change?• Why did the Statute of Anne grant rights to authors,

not publishers?

An Overview of Copyright• Subject matter: literary and artistic expression• Threshold for protection: minimal originality• Formalities: notice required (prior to 1989);

registration & deposit required to sue• Duration: life + 70 yrs; 95 from publication or 120

from creation for entity authors

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Requirements for CopyrightRequirements for Copyright

17 U.S.C. § 102. - 17 U.S.C. § 102. - Subject matter of Subject matter of copyright: In generalcopyright: In general

(a) Copyright protection subsists, in (a) Copyright protection subsists, in accordance with this title, in original accordance with this title, in original works of authorship fixed in any works of authorship fixed in any tangible medium of expression, now tangible medium of expression, now known or later developed, from which known or later developed, from which they can be perceived, reproduced, or they can be perceived, reproduced, or otherwise communicated, either directly otherwise communicated, either directly or with the aid of a machine or device.or with the aid of a machine or device.

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Requirements for CopyrightRequirements for Copyright

17 U.S.C. § 102. - 17 U.S.C. § 102. - Subject matter of Subject matter of copyright: In generalcopyright: In general

(a) Copyright protection subsists, in (a) Copyright protection subsists, in accordance with this title, in accordance with this title, in original original works of authorship fixed in any works of authorship fixed in any tangible medium of expression, now tangible medium of expression, now known or later developed, from which known or later developed, from which they can be perceived, reproduced, or they can be perceived, reproduced, or otherwise communicatedotherwise communicated, either directly , either directly or with the aid of a machine or device.or with the aid of a machine or device.

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Requirements for CopyrightRequirements for Copyright

Original Works of AuthorshipOriginal Works of Authorship

Feist Publications v Rural Telephone Feist Publications v Rural Telephone ServiceService• Why does Feist want Rural’s listings?• How did Feist get caught?• Feist admitted copying ~ 1300 listings. Why

no infringement? • Didn’t Rural choose which / how information

was listed? (Do you agree with the court’s characterization as ‘garden-variety’?)

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Requirements for CopyrightRequirements for CopyrightOriginal Works of AuthorshipOriginal Works of Authorship

Facts versus CompilationsFacts versus Compilations

Which of the following is copyrightable?Which of the following is copyrightable?1. Telephone listings, sorted by zipcode.2. Telephone listings, plus clever nicknames.3. Fake telephone listings, sorted by surname.4. Electronic phone book database.5. A taxonomy of insurance billing codes (5-digit #s)6. Page numbers in case reporters (i.e., 123 F.2d 456)

Even if the above is ©, can anything be copied? Can you recreate the work yourself?

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Requirements for CopyrightRequirements for CopyrightOriginal Works of AuthorshipOriginal Works of Authorship

Facts versus CompilationsFacts versus Compilations

1.1. The database problemThe database problema) Why not protect non-original compilations of facts?b) Don’t we want to encourage

investment/deployment?c) Absent ©, how can we encourage database

development?

2.2. ““Functionally”-focused worksFunctionally”-focused worksa) Are maps ©? (Should they be?)b) What about aerial photographs? Photos of nature?c) Schematic designs/drawings?

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Requirements for CopyrightRequirements for Copyright

Fixed in a Tangible Medium of ExpressionFixed in a Tangible Medium of Expression

1.1. Why require Why require fixationfixation as a condition for as a condition for copyright?copyright?

2.2. Explain the difference between:Explain the difference between:a) An “original work”b) A “copy”c) A “phonorecord”d) A “book”

3.3. How is a live broadcast copyrightable?How is a live broadcast copyrightable?

4.4. You type text into your word processor. You type text into your word processor. Fixed?Fixed?

5.5. You open a web page. You open a web page. Has a copy been made?Has a copy been made?

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Requirements for CopyrightRequirements for Copyright

FormalitiesFormalities

1.1. NoticeNoticea) Why have US notice requirements relaxed since

1909?b) What is the current US rule?

o Why does the US strongly encourage notice?

2.2. RegistrationRegistrationa) What do we mean by ‘registration’?b) What is the current rule? (Why the two-tier system?)c) Why “encourage” registration?

3.3. DepositDeposita) What is the rule? Why require deposit?

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