Intellectual Property

Boston College Law School

January 9, 2008

Copyright - Intro, Requirements

Topics

• Intro to Copyright– Basic Outlines– Theories– History

• Requirements– Originality– Fixation– Formalities

What is copyright?

• Subject matter: creative and artistic works– Books, magazines, newspapers– Music, movies – Plays, sculpture, painting, drawings– Architectural works– Software

• Does not include: – Facts– Ideas– Inventions

Example: Harry Potter

Why do we have copyright?

1. Economic theories

2. Labor desert theories

3. Personality theories

4. Interest group theories

Economic theories• Basic idea:

– Copyright is necessary to provide authors with incentives to engage in creative activity

• Responds to “public goods” nature of information• Without protection, others could copy and sell

• Limitations:– Protection may reduce broad access to works

• Raises costs of copyrighted works to consumers• Raises costs of creating derivative works

– No data re: how much is “enough” or “optimal”

Labor-Desert Theories• Basic idea:

– Copyright law serves to reward authors for their creative labor

• Based in part on writings of John Locke; natural law

• Consistent with instincts re: rewarding effort

• Limitations– Hard to know what limiting factors– How much of work’s success is due solely to

author’s labor?

Personality Theories

• Basic idea:– Copyright law protects an artist or creator’s

personal connection to a creative work• Some works are not merely commodities

• Instead, may be bound up with creator’s identity

• Limitations– Hard to know what limiting factors– Not applicable to primarily commercial works

Interest Group Theories

• Basic Idea:– Copyright law largely reflects and protects the

interests of the copyright industries• Industries are wealthy, focused, and organized

• Consumers are diffuse, passive, disorganized

• Limitation– Primarily a descriptive theory - provides little

normative guidance

Copyright Timeline

• 1556: Stationers’ Guild– Right to publish given to publishing houses– Content heavily regulated by government

• 1710: Statute of Anne– Right to make copies given to authors– Term: 14 years, plus 14 year renewal; certain formalities

• 1776: State Copyright Laws– Modeled on Statute of Anne– Numerous conflicting requirements– Constitutional grant of authority

Constitutional Grant

• U.S. Const. 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 ”

Copyright Timeline (cont.)

• 1790: First Federal Copyright Act– 14 years plus 14 year renewal

– Originally books, but expanded to prints, music, photos, etc.

• 1909: First Major Overhaul– 28 years, plus 28 year renewal

– Expanded to encompass all writings

• 1976: Latest Major Overhaul– Life + 50, or 75 years for corporate authors

– Formalities loosened

Copyright Timeline (cont.)

• Recent Amendments to 1976 Act– 1980: Computer Software included– 1988: Berne ratified; formalities eliminated– 1990: Architectural Works protected– 1992: Audio Home Recording Act– 1998: Sonny Bono Term Extension + Digital

Millennium Copyright Act

17 U.S.C. § 102

• (a) Copyright protection subsists,… in original works of authorship fixed in a tangible medium of expression, …. Works of authorship include the following categories:– (1) literary works;

– (2) musical works, …;

– (3) dramatic works;

– (4) pantomimes and choreographic works;

– (5) pictorial, graphic, and sculptural works;

– (6) motion pictures and other audio visual works;

– (7) sound recordings; and

– (8) architectural works

Originality

• Elements– 1. Independent creation– 2. Some modicum of creativity

• Not original– Short words and phrases– Works dictated purely by function– Literal reproductions of public domain works– Some databases

Feist v. Rural

Feist v. Rural

• “It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not ‘some unforeseen byproduct of a statutory scheme.’ It is, rather, ‘the essence of copyright,’ and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but to ‘promote the Progress of Science and useful Arts.’”

Yellow Pages

Scope of Feist?

• Hypo 1– Want to copy West dbase of opinions– Upload on internet, charge for access– What issues? What advice?

• Hypo 2– Have a dbase of travel info on internet– Want to prevent competitors from copying– What issues? What advice?

Fixation

• 17 U.S.C. § 102:– “fixed in any tangible medium of expression,

now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

Fixation

• Possible justifications– Constitutionally required– Defines scope of the entitlement

• Avoids unreasonable liability

• Evidentiary value in infringement action

– Evidence of commercial importance of work– Marks point at which copying is problematic

Formalities

Notice Publication Registration Deposit

1909 Act Required. Must provide date, author, copyright symbol.

Required. Not required. But prerequisite for bringing claim.

Not required. But may be fined.

1976 Pre-Berne (1978-89)

Still required. But more lenient if fail to provide notice.

Not required. But triggers notice requirement.

Not required, but: i. Prima facie validity ii. Required before claim iii. Statutory damages and fees

Same.

1976 Post-Berne (1989- )

Not required. But if notice, then no innocent infringement.

Not required. Same, except that for foreign works, registration not necessary before suit

Same

Next Assignment

• Read II.C.1 – Subject Matter - Exclusions