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

“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

Next Assignment Read II.C.1 – Subject Matter - Exclusions