Copyright Law David G. Post Temple Law School Feb

Copyright attaches to works of authorship copyright subsists in –“original works of authorship” that are –“fixed in any tangible medium of expression” Nothing more is required –Registration of copyright is not required –Copyright notice is not required

Originality An “original” work is one that was –independently created, and –shows a “modicum of creativity”

Fixation A work is “fixed in a tangible medium of expression” when it is embodied in a material object of some kind – the pages of a book, a canvas, magnetic tape, a computer’s hard disk, a piano roll,...

What is this thing – “copyright” – that attaches to original works of authorship that are fixed in a tangible medium of expression? copyright is a negative right –It does not give the owner a right to do something with or to the work; –it gives the owner a right to exclude others from doing certain things with or to the work

What can the copyright owner exclude others from doing with or to the work? The Section 106 rights: The owner of copyright can exclude others from –reproducing the work The right to exclude others from making reproductions that are “substantially similar” to the copyrighted work –distributing the work [or things “substantially similar” to the work] to the public –creating a “derivative work” based upon the work –performing the work in public –displaying the work to the public –transmitting the work by means of digital audio transmission

What is the “work” that copyright protects? Copyright protects only the expression contained in the work, not the ideas The copyright owner therefore does not have the exclusive right to reproduce [or distribute, or perform, or display, etc.] the “ideas” in a work; only the way that he/she chose to express those ideas –and only if that expression is “original”

What is the “work” that copyright protects, II Copyright never protects the “facts” revealed in a work; only the way the author has organized, or selected, or arranged those facts –and only if that organization/selection/arrangement is itself “original” The copyright owner therefore does not have the exclusive right to reproduce [or distribute, or perform, or display, etc.] the “facts” in a work; only the [original] way that he/she chose to select, organize or arrange those facts

Who owns the copyright? Initially – i.e., when a work is created and fixed in a tangible medium of expression – all of the exclusive rights vest in the “Author” who is the “Author” of a work? –Ordinarily, the author is who you think it is –Sometimes, it can be more than one person; “joint authors,” who own the copyright jointly –If the work was created by an employee acting within the scope of his or her employment, the employer is the author [Work for Hire]

Who owns the copyright, II After the initial vesting, the author can –divide up rights any way he/she wants, and can –transfer the rights, in whole or in part, to anyone else –as long as the transfer is in writing and signed by the owner of the rights in question The owner can also license others to do things that would otherwise be violations of one of more of the exclusive rights –These do not have to be in writing

Copyright subsists in “original works of authorship” that are “fixed in any tangible medium of expression” Whoever owns the copyright has the right to exclude others from doing certain things with or to the work The owner of copyright can exclude others from –reproducing the work –distributing the work to the public –creating a “derivative work” based upon the work –performing the work in public –displaying the work to the public –transmitting the work by means of digital audio transmission The “work” to which these exclusive rights attach does not include any “ideas” or “facts” – those are in the public domain. Only original expression is protected Initially, all of the exclusive rights vest in the “Author” –who is the “Author”? Ordinarily, the author is who you think it is Sometimes, it can be more than one person; “joint authors,” who own the copyright jointly If the work was created by an employee acting within the scope of his or her employment, the employer is the author [Work for Hire] After the initial vesting, the author can –divide up rights any way he/she wants, and can –transfer the rights, in whole or in part, to anyone else –as long as the transfer is in writing and signed by the owner of the rights in question The owner can also license others to do things that would otherwise be violations of one of more of the exclusive rights –These do not have to be in writing The Picture So Far

Infringement Anyone who violates any of the exclusive rights of the copyright owner without authorization is liable as an infringer of copyright

What happens to infringers of copyright? Injunctive relief is available –a court order to stop doing whatever it is you are doing that constitutes infringement Damages are available –The copyright owner’s actual damages from the infringement, OR –Fixed statutory damages up to $20K per infringement, whether or not there were any actual damages

What kind of authorization can serve as a shield against liability? Licenses –Remember: these do not have to be in writing –They can be implied from the circumstances Fair Use –It is not infringement to make “fair use” of a copyrighted work –It is a kind of license granted to the public to do certain things to and with copyrighted works that would otherwise constitute infringement

When are uses “fair”? Four factors are balanced against one another –The purpose of the use what did the defendant do, and why? –commercial uses are bad; educational uses are good –duplicative uses are bad; transformative uses are good –The nature of the work being infringed –The amount that was taken from the work more is bad; less is good –The effect of the use on the market for, or the value of, the work Will the defendant’s actions, if widespread, reduce the value of the copyrighted work? Will they deprive the copyright owner of valuable or potentially valuable licensing opportunities?

The Copyright Claim The work is protected by copyright I am the owner of one (or more) of the exclusive rights in the work You have, by doing XXX, done something within those exclusive rights belonging to me, without my permission You are liable for infringement

The Response You authorized me to do what I did, or I am making fair use of the work, or [Some other exception applies]

The Whole Deal The Copyright Owner’s Claim: –The work is protected by copyright Copyright subsists in “original works of authorship” that are “fixed in any tangible medium of expression” The “work” to which these exclusive rights attach does not include any “ideas” or “facts” – those are in the public domain. Only original expression is protected –I am the owner of one (or more) of the exclusive rights in the work I am the “Author,” and I have retained my copyright rights, or I received the rights by transfer from the Author, or from someone else to whom the author had transferred the rights –You have, by doing XXX, done something within those exclusive rights belonging to me, without my permission I have the exclusive right to reproduce the work, distribute the work to the public, create a “derivative work” based upon the work, perform the work in public, display the work to the public, and transmit the work by means of digital audio transmission What you (defendant) have done is a violation of one of these rights –You are liable for infringement I am entitled to injunctive relief and damages (actual or statutory) THE Defendant’s RESPONSE –I didn’t do what you claim I did; or –I did what you claim I did, but doing that is not a violation of your rights; or –It was a violation of your rights, except for the fact that I was making “fair use” of a copyrighted work –Four factors are balanced against one another –The purpose of the use, the nature of the work being infringed, the amount that was taken from the work, and the effect of the use on the market for, or the value of, the work You authorized me to do what I did –I have a license from you [Some other exception applies]

Education and Copyright Fair Use and Coursepacks The Work for Hire Doctrine – Teachers as “employees” The copyright status of works posted on the Internet The “classroom guidelines”

The “Classroom Guidelines” Copyright Office Circular No. 21: “Reproduction of Copyrighted Works by Educators and Librarians” – A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class: –A. A chapter from a book; –B. An article from a periodical or newspaper; –C. A short story, short essay or short poem, –D. A chart, graph, diagram, drawing, cartoon or –picture from a book, periodical, or newspaper; There shall not be more than nine instances of such multiple copying for one course during one class term.

Classroom guidelines, II Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that: –A. The copying meets the tests of brevity and spontaneity Brevity: e.g., for prose works: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. Spontaneity: The copying is at the instance and inspiration of the individual teacher, and the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission. –B. The copying meets the cumulative effect test e.g., There shall not be more than nine instances of such multiple copying for one course during one class term. –and, C. Each copy includes a notice of copyright