COPYRIGHT LAW 2008 Columbus School of Law The Catholic University of America Prof. Fischer Class 27: November 19, 2008

WRAP-UP PERFORMANCE RIGHTS Only specific types of work Performance must be “public” No general performance right for sound recordings Narrow exceptions

RIGHT OF PUBLIC DISPLAY See section 106(5) Only applies to certain kinds of work See definition of “display” in section 101 How does First Sale doctrine apply to the right of display? See 109(c)

Perfect 10 v. Amazon.com (9 th Cir. 2007) [Supp. p. 99] Had Google alleged in an unuathorized public display of Perfect10 images? Is this a good decision as a matter of policy?

DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS Prior to section 106(6), no public performance right for sound recordings Added in 1995 (amendments to 106, 114). Why? Digital Performance Right in Sound Recordings Act of 1995: new statutory license Digital Millennium Copyright Act of 1998: expanded statutory license to include webcasting

DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS Interactive “celestial” jukeboxes are not subject to statutory license but to full 106(6) right Nonsubscription broadcast transmissions are exempted Other digital transmissions, both subscription and non-subscription, are subject to statutory license if meet detailed eligibility requirements

Sound Exchange What is SoundExchange? What does it do? See

Section 112 statutory license The section 112 statutory license covers ephemeral reproductions (i.e., temporary server copies) made by all digital music services covered by the section 114 license as well as certain background music services that are exempt from paying public performance royalties under section 114.

DIGITAL PERFORMANCE RIGHT ROYALTIES Rate adjustment in spring of 2007 by Copyright Royalty Board – under appeal in U.S. District Court for the District of Columbia Huge increase in sound recording royalties (see p. 102 Supplement) Caused outcry from webcasters Webcaster Settlement Act 2008 enacted

FULL PERFORMANCE RIGHT IN SOUND RECORDINGS IN 1994 and 1996 Congress considered creating a full performance right in sound recordings, in addition to that for musical compositions. Is a general public performance right appropriate for sound recordings? How should it be squared with the existing public performance right for musical compositions?

What Public Interest Exceptions Exist For Right of Public Performance and Display? See section 110

What Exceptions Exist For Right of Public Performance and Display? Face-to-face teaching 110(1) certain instructional broadcasts 110(2) - note controversy over whether this is appropriate in a digital age for distance learning played/sung as part of religious service 110(3) nonprofit performance 110(4)

COMPULSORY & STATUTORY LICENSES Section TV broadcast relays Section satellite transmission Section recordings of musical works Section jukeboxes Section public broadcasting Section 114 – performances digital sound recordings

FAIR USE Defense to infringement Affirmative defense

FAIR USE To determine whether fair use applies, courts must consider 4 fair use factors in 17 U.S.C. § 107. What are these? Courts are allowed to consider other factors too, and they sometimes do, such as considering the amount and substantiality of the portion used in comparison to the defendant’s work, as well as the propriety of the defendant’s content.

Fair Use Factors (1) purpose and character of the use (commercial or non-commercial eg. educational?) (2) nature of copyrighted work (fact or fiction?) (3) amount and substantiality of amount used (4) effect on the market for the copyrighted work Does it make any difference if a work is unpublished?

Unpublished works and fair use IN Harper & Row, a Supreme Court case (1985), the Court indicated that unlicensed disclosure of unpublished work rarely fair use Several cases followed 1992 amendment to the end of s. 107 “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” See Sundeman v. Seajay Soc’y, Inc. (4 th Cir. 1998)

Fair Use and Parody: The Acuff- Rose case [p. 717] How did Justice Souter come out on the 4 fair use factors? Does it matter if the parody is in bad taste, or not funny? Do you agree with Justice Souter’s analysis? Why or why not?