Intro to Copyright: Originality, Expression, and More Intro to IP – Prof Merges 2.8.10

The Nature of Copyright Long-lived, but narrow protection Life of author plus 70 years Protects only “expression,” NOT underlying idea Traditonally, most effective in the analog “copyright industries” Publishing Movies TV Radio Expanding Impact Now

Comparison with Patent Copyright is “thinner” but longer Copyright is easier to obtain, fewer and different requirements Copyright has more specific “industry tailoring” than patent law, in general

Section 102 “Copyright subsists . . .” Versus patent law . . .

Section 101: create A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particualar time constitutes the work as of that time, , and where the work has been prepared in different versions, each version constitutes a separate work.

Patent vs. copyright Invention  claims Work  copyrighted subject matter

Different Industries, Works, Rights

Limiting Doctrines 1. Idea/Expression Dichotomy §102(b), v. Selden 2. Useful Article Doctrine 3. Government Works §105 4. “Fair Use”

Feist Rural Telephone Service 4/17/2017 Feist Rural Telephone Service the local phone company in northwest Kansas Provide service, assign phone numbers, obtains info as a byproduct of those activities Required by law to issue phone book

Originality: Impact on Databases Feist (499 US 340 [1991]) Telephone Directory A Ackerman, Harold Armstrong, Saundra B Benavides, Fortunato C Clinton, William J.

Copyright © 2005-08 Randal C. Picker 4/17/2017 Feist Distribute phone books: free to consumers, charge companies to be in Yellow Pages Feist Publications Entrant into area-wide phone book market Struck deal with 10 of 11 to license listings; Rural refused Feist got names from phone book; sought to verify listings; did most not all April 17, 2017 Copyright © 2005-08 Randal C. Picker

“Facts” in Feist “Two Well-Established Propositions” 4/17/2017 “Facts” in Feist “Two Well-Established Propositions” Facts are not copyrightable BUT – Compilations of facts are copyrightable

Authors “discover” facts, do not create or “originate” them 4/17/2017 Facts as Discoveries Authors “discover” facts, do not create or “originate” them Where else have we seen this distinction?

Single facts Not difficult to deal with

A Copyright Office regulation denies copyright protection to ''[W]orks consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists of tables taken from public documents or other common sources.” 37 CFR § 202.1(d).

Originality and the Constitution 4/17/2017 Originality and the Constitution The Congress shall have the Power . . . 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; (Art. I, § 8, cl. 8)

Feist: What is Copyrightable in a Compilation? 4/17/2017 Feist: What is Copyrightable in a Compilation? S/C/A Selection Coordination Arrangement April 17, 2017 Copyright © 2005-08 Randal C. Picker

Copyright © 2005-08 Randal C. Picker 4/17/2017 Essence of Copyright Hard work (“sweat of the brow”) v. originality Feist finds originality to be a constitutional requirement for copyright protection by Congress Raises difficult issues about the ability of Congress to protect merely hard work creations, even under, say, the Commerce Clause April 17, 2017 Copyright © 2005-08 Randal C. Picker

Contra Locke? No!

FEIST (1991) “Thin” Copyright Protection for compilations – copyright in original selection, arrangement, or coordination of data/preexisting materials (see definition of compilation, 103(a) and (b))

Difficult problems of preemption If something is expressly unprotectable by federal copyright law, can it nevertheless be protected by (1) another type of federal law, and/or (2) affirmative state legislation, and/or (3) private contract as backed by state enforcement?

Total Concept and Feel: Roth Greeting Cards v. United Card Co. (9th Cir. 1970) Was the greeting card protected as a compilation? Is the total concept and feel test for infringement doctrinally sound?

Copyright in Case Reports Are judicial decisions copyrightable? What about West’s enhanced case reports? See Matthew Bender & Co. v. West Pub. Co., (2d Cir. 1998) What about West’s star pagination? See Matthew Bender & Co. v. West Pub. Co. (2d Cir. 1998)

CCC Information Services v. Maclean Hunter (2d Cir. 1994) Copyrightability of the Automobile Red Book – Official Used Car Valuations Why didn’t the merger doctrine argument succeed?

Baker v. Selden What exactly was copyrighted here? What did the copyright owner seek to achieve by the suit?

Section 102(b) 17 USC Sec. 102(b): 4/17/2017 Section 102(b) 17 USC Sec. 102(b): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Section 102(b) 17 USC Sec. 102(b): 4/17/2017 Section 102(b) 17 USC Sec. 102(b): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Section 102(b) 17 USC Sec. 102(b): 4/17/2017 Section 102(b) 17 USC Sec. 102(b): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Pam Samuelson: The Story Behind Baker v Selden, on SSRN.com