Introduction to Intellectual Property: Fall 2003 Professor Susanna Fischer CLASS of OCT OWNERSHIP, DURATION

Government Works Can works of the federal government be protected by copyright law? What about state governments? What is the relevant policy rationale for the law on this issue?

17 U.S.C. Section 105 Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

Definition of “Work of United States Government” (Sect. 101) “A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.”

Works of State Governments These are not mentioned in s. 105 so in theory state and local governments can own copyright in their works but public policy may bar this. For example, in Banks v. Manchester (1888), the U.S. Supreme Court refused to find that a compilation of state court judicial opinions was copyrightable The rationale was public policy and a kind of due process rationale: judicial opinions are publicly owned because judges are paid with public funds and the public interest is served by free access to the law rather than judicial control of their opinions

Privately Drafted Legislative Codes Can legislative codes that are privately drafted but later adopted by states as law be the subject of copyright? Veeck v. SBCCI (5th Cir. En banc) model codes enter public domain when enacted into law and are not subject to copyright law – but as model codes they are

SCOPE OF EMPLOYMENT CCNV dealt with whether an author is an employee. How do the courts determine “scope of employment”?

SCOPE OF EMPLOYMENT CCNV dealt with when an author is an employee. How do the courts determine “scope of employment”? Courts rely on test in Restatement (Second) of Agency. Employer must show: 1. Work of type employee hired to perform 2. Creation of work occurred “substantially within the authorized time and space limits” of the job 3. Work “actuated, at least in part, by a purpose to serve” interests of employer

THE TEACHER EXCEPTION If the teacher exception exists, it is an exception to the work made for hire doctrine for academic writings Did the 1976 Act abolish it? Many college and university IP policies adopt the view that teacher exception exists See draft CUA IP Policy at: npage/

JOINT WORK:Problem 4-15 CB p. 393 Aalmuhamed v. Lee

JOINT WORKS A joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” Each joint author must make an independently copyrightable contribution. Intention to be joint authors may be manifested by a written agreement, or by a court determining whether the parties had the intent to be joiint authors (e.g. Thomson v. Larson) Joint authors are co-owners of copyright in a work. Can license (non-exclusively) w/o consent

SECTION 201(c) Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

DURATION OF COPYRIGHT OWNERSHIP What is the current term of copyright? How long is it constitutional for a copyright to last? Remember: Constitution says Congress can gives Authors protection “for limited Times” How long should a copyright last? Should it be for life of author plus term of years or for a specific term of years, or a specific term of years plus a renwal term?

DURATION 1909 Act works published between 1923 and end of 1963 – (if renewed) 1909 Act works published between 1964 and end of 1977 – , automatic renewal Created Jan or after – life + 70, corporations 95 from publication or 120 from creation Unpublished works – life + 70, or at least until If published by 2003, expires in 2048