Introduction to Copyright Principles © 2005 Patricia L. Bellia. May be reproduced, distributed or adapted for educational purposes only.

Intellectual Property Generally ▪Protects products of the mind ▸ Patent Law: Limited monopoly for new, inventive products, processes, and designs ▸ Trademark Law: Protects words, symbols, etc. that identify the source of goods and services against confusingly similar uses ▸ Copyright Law: Protects “original works of authorship”

Theories for Copyright Protection ▪Natural law view: persons have the right to reap the fruits of their creations ▪Utilitarian view: copyright protection provides incentives for persons to produce works of authorship

Sources of Copyright Law ▪U.S. Const. art. I, sec. 8, cl. 8 (The Patent and Copyright Clause) empowers Congress: “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.”

Incentive-Based View of Copyright ▪The Copyright Act of 1976 (17 U.S.C. § 101 et seq.) reflects an incentive-based view of intellectual property.

Incentive-Based View of Copyright The public grants an author a limited monopoly (giving up a public good) original works of authorship and certain rights to use the work during the copyright term (and rights once work is in public domain) and receives

Copyright Basics ▪What works? ▪When? ▪Whose rights? ▪What rights? ▪What limitations?

What works? ■17 U.S.C. § 102(a): ■“original works of authorship” ■“fixed in any tangible medium of expression”

What works? Originality Requirement ▪independent creation ▪modest quantum of creativity

What works? Fixation Requirement ■Under the Constitution, Congress can protect “writings” of authors construed to mean any physical rendering of the fruits of intellectual activity work must be recorded or written in some manner; mere performance does not qualify

What works? Categories of Works Protected ■literary, musical, dramatic works ■pictorial, graphic, sculptural, architectural works ■motion pictures and other audiovisual works ■sound recordings

What works? Categories of Works Not Protected ■ideas and principles – copyright law protects the expression, not the substance, of the idea E.g.: Superman versus the Greatest American Hero ■utilitarian objects – something is only protectable to the extent that it is separate from and capable of existing independently of its utilitarian aspects E.g.: Ledger sheets and blank forms E.g.: On computer systems, graphical interfaces often not protected

What works? Categories of Works Not Protected ■facts ■obscene, immoral, or fraudulent works ■works of the U.S. Government

When? When Protection Attaches ■At the moment of fixation ■Not publication (as was the case under previous regimes) ■Copyright notice not required post-1989 (though it provides procedural advantages) ■Registration is permissive (but is a prerequisite to an infringement suit)

When? How Long ■Generally speaking, life of the author plus 70 years ■For institutional works, 95 years from publication or 120 years from creation, whichever is shorter ■For works published prior to 1978, 28-year first term and 67-year renewal term ■Pre-1923 works now in public domain

Whose rights? ■The creator of the work (“author”) ownership of copyright is distinct from ownership of the physical object ■In the case of a work for hire, employer owns

What rights? ■Exclusive rights (17 U.S.C. § 106) to reproduce work in copies and phonorecords to prepare derivative works to distribute copies or phonorecords to the public by sale, lease, etc. to publicly perform and display work (generally does not apply to sound recordings) ■Moral rights for visual art (17 U.S.C. § 106A): rights of attribution and integrity

What limitations? ■Exclusive rights subject to specific limitations (17 U.S.C. §§ ) 1. Fair use is not infringing use (17 U.S.C. § 107) Four factors: purpose and character of use nature of copyrighted work amount in relation to work as a whole effect on market value

What limitations? ■2. Compulsory Licenses (examples): secondary transmission of broadcast programs by cable systems satellite retransmissions independent recording of a musical work, once phonorecord has been distributed to public ■3. Blanket Licenses Distinguished

Infringement ■17 U.S.C. § 501: ■“Anyone who violates any of the exclusive rights of the copyright owner... is an infringer of the copyright....” ■Possible remedies include injunctions; impounding and disposition of infringing articles; damages and profits

Criminal Offense ■17 U.S.C. § 506 provides for criminal penalties for one who willfully infringes either for purposes of commercial advantage or private financial gain or by reproduction or distribution during a 180- day period of works with a total retail value of more than $1000

Related Defendants ■Contributory Infringement defendant knew or had reason to know of infringement and materially contributed to it

Related Defendants ■Vicarious Liability defendant had the power to control infringing acts and benefitted from them

Related Defendants ■Digital Millennium Copyright Act of 1998 limits the liability of online service providers

■Anti-circumvention and anti-trafficking provisions of the DMCA prohibits circumvention of technical measures that control access to works prohibits making and selling of devices used to circumvent technical measures to control access or prevent copying Responses to the Challenges of Digital Technology (Rights Beyond Copyright)