COPYRIGHT TUTORIAL Professor Samuelson 11999 1 WHAT IS

COPYRIGHT TUTORIAL Professor Samuelson 1/19/99 1

WHAT IS “IP”? • Intangible rights in intangible information • Patents for technological inventions • Trade secrets for commercially valuable secrets (e. g. , source code, Coke formula) • Trademarks (e. g. , Coke) to protect consumers against confusion • Rights of publicity (e. g. , Elvis heirs cf. imitators) 2

DIFFERENT THEORIES • Utilitarian (e. g. , grant rights to create incentives for beneficial investments) • Natural rights (e. g. , persons have natural rights in their creations if valuable) • Personality-based (e. g. , my creation is an extension of myself) • Unjust enrichment (e. g. , others ought not be unjustly enriched by appropriating ideas) 3

U. S. CONSTITUTION • Congress empowered to promote progress of science and useful arts • by securing to authors and inventors • exclusive rights • for limited times • in their respective writings and discoveries 4

CONTOURS FROM CONST. • • • Purpose: promote science Who: authors How: exclusive rights How long: limited times For what: writings Other constitutional provisions of note: supremacy clause, 1 st A, commerce clause 5

SUBJECT MATTER OF COP. • “Original” works of authorship (Feist: white pages listings not “original”) • “Fixed” in a tangible medium of expression (MAI: RAM copy fixed enough to infringe) • Categories of works: literary works, musical, dramatic, pictorial and sculptural, architectural, audiovisual, sound recordings, choreographic 6

MULTIPLE COPYRIGHTS • • Think of a typical music CD which has: Music Lyrics Sound recording Photograph or drawing or both on cover Explanatory text about recording artist Rights clearances a complicated process 7

“UNCOPYRIGHTABLE” STUFF • • Ledger sheets and blank forms Rules and recipes (“merger”) White pages listings of telephone directories Facts and theories Ideas and principles Methods of operation/processes Bicycles and bicycle racks 8

COMPILATIONS & DERIVATIVE WORKS • Originality in selection and arrangement of data elements = prot’ble compilation • Original expression added to derivative as cf. underlying work = prot’ble d. w. • Copyright doesn’t extend to preexisting material (e. g. , data or public domain play) • Use of infringing materials will 9

WHO OWNS? • The creator of the work (“author”) • But “work for hire” rule means employer is “author” of employees’ work • Commissioning party generally does not own copyright; special rules • Jointly authored works: contribution of expression w/ intent to make part of inseparable whole 10

HOW AUTHORS GET RIGHTS • Attach automatically by operation of law from first fixation • Last for life of author plus 70 years (or 95 years from publication for corporate works) • Register with Copyright Office to ensure broadest remedies and to bring suit • Publication not required, but once work is published, deposit with LOC may be 11

WHAT OWNER OWNS • Exclusive rights to reproduce work in copies, • to prepare derivative works, • to distribute copies to the public, • to publicly perform and display work • “Moral rights” for works of visual art • Secondary infringements (e. g. , facilitating others knowing they’ll infringe) 12

HOW AUTHORS EXPLOIT RIGHTS • License rights to others on exclusive or nonexclusive basis • Sell (“assign”) rights to others (e. g. , publisher) • Develop products yourself • Join copyright collective (e. g. , ASCAP) so that they can do licensing for you • Sue people who exploit without permission 13

LIMITS ON EXCLUSIVE RTS • • • Fair use (e. g. , Sony Betamax, Acuff-Rose) First sale (e. g. , libraries, bookstores) Library-archive (e. g. , ILL, course reserves) Classroom performances Small operations (e. g. , radio in fast food joint) • Specialized inter-industry compulsory licenses (e. g. , cable-network TV) 14

FAIR USE & PUBLIC DOMAIN • People make fair uses all the time (e. g. , photocopy Dilbert cartoon or news article) • Fair use depends on multiple factors, including the potential to harm markets • Fair use sometimes important for democratic discourse (e. g. , parody of politician’s speech) • Public domain = reservoir from which authors can draw (e. g. , Shakespeare) 15

DIGITAL COMPLICATIONS • Digitized photographs of public domain works (e. g. , Microsoft claims ownership) • Colorization of movies (e. g. , what if it results from automation? ) • Databases (e. g. , very easy to steal the data and leave the base) • NBA v. Motorola (“stealing” data on NBA games for sports pager) 16

DIGITAL COMPLICATIONS--2 • In digital form, all works are literary works • Can’t access or use digital information without making copies • Very cheap and easy to make multiple copies and disseminate via networks • Very easy to digitally manipulate w/o detection • People expect it to be free or nearly so 17

WHITE PAPER ON IP & NII • Full potential of NII won’t be realized unless IP/copyright owners are adequately protected • Many are withholding works from the ‘net because of threat of piracy • Copyright can be adapted to digital environment, need a few changes 18

WHITE PAPER ISSUES • Temporary copies in RAM (reading or browsing as infringement? ) • No more fair use (if can be licensed, must be licensed; object to fair use “tax”) • No more first sale/sharing rights (first sale only permits redistributing same copy, not making new ones) • OSP strict liability for user infringements 19

WHITE PAPER ISSUES--2 • Tampering with copyright management information should be illegal • Need to outlaw circumvention of technical protection systems • Need to outlaw manufacture or distribution of circumvention technologies • Get int’l treaty to universalize these new norms 20

WIPO COPYRIGHT TREATY • Reproduction right applies to digital (no agreement on temporary copies) • Exclusive right to communicate digital works to the public by interactive service • Fair use and other exceptions can apply as appropriate; new exceptions OK • Merely providing facilities for communication not basis for liability 21

WIPO TREATY--2 • Tampering with copyright management information to enable or conceal infringement should be illegal • Need for “adequate protection” and “effective remedies” for circumvention of technical protection systems • Treaty not yet in effect, but likely to be 22

BASIC INT’L SITUATION • Berne Convention for Protection of Literary & Artistic Works • Paris Convention for Industrial Property • “National treatment” (do unto foreign nationals no worse than do unto own) • Berne has some minimum standars • WIPO administers treaties, hosts meetings to update or revise 23

BASIC INT’L SITUATION--2 • TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement • National treatment, but minima for seven classes of IPR • Must have substantively adequate laws • Must have adequate remedies and procedures and must enforce effectively • Dispute resolution process now available 24

DEEPER ISSUES • U. S. economic strength depends on copyright and IPR • Others want to appropriate w/o paying (e. g. , China) • Distorts trade and incentives to invest • But will trade-dominated policy promote other values society holds dear? 25

DEEPER ISSUES--2 • What costs does society suffer from extending copyright? (e. g. , term extension) • How can developing or underdeveloped countries expect to comply with TRIPS? • Markets and technologies are rapidly changing • Unclear how to carry over balancing principles to new environment 26