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

3. 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

4. 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

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

6. 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.

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

9. Different Industries, Works, Rights

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

11. 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

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

13. 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 © Randal C. Picker

14. “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

15. 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?

16. Single facts
Not difficult to deal with

17. 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).

18. 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)

19. 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 © Randal C. Picker

20. 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 © Randal C. Picker

21. Contra Locke? No!

22. 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))

23. 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?

24. 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?

25. 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)

26. 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?

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

29. 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.

30. 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.

31. 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.

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