Fall
2010
Comparative Copyright
Christopher Scott
Outline for LAW 343 A01, as taught by Professor Robert Howell
Editor’s Note: As this course focuses primarily on American law, assume that American law is being discussed
unless there is an explicit reference to the contrary. For convenience, “§” indicates American statutory provisions
University of Victoria Faculty of Law
Comparative Copyright
Table of Contents
THE CONCEPT OF COPYRIGHT
1
Constitutional Basis
1
Statutory Scheme
1
COPYRIGHTABLE SUBJECT MATTER
2
FORMALITIES
4
EXCLUSIVE RIGHTS UNDER COPYRIGHT
4
Reproduction
4
Derivative Works
5
Distribution
5
Public Performance
6
Public Display
6
MORAL RIGHTS
6
Canada
6
US
7
Europe
7
FAIR USE AND FAIR DEALING
8
Canada (Fair Dealing)
8
US (Fair Use)
8
CONTRIBUTORY INFRINGEMENT VS. THE AUTHORIZATION RIGHT
9
i
Comparative Copyright
The Concept of Copyright
Constitutional Basis
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US Constitution: Article 1, s. 8(8) allows Congress to "promote the progress of Science ... by
securing for limited times [or "terms"] to authors ... exclusive rights to Writings ..."
o “Writings”: To protect other items, like performers' performances (under the WTO
agreements), the Congress had to (and still does) employ the commerce clause.
o “Limited Times”: Any limitation will do (this is a weak requirement)
(Ashcroft*)
o “Promote the Progress of Science”: This lead to debate over the copyright of obscenity and
the like – today it is accepted that that is also protected by copyright (as expression)
(Mitchell*)
Canadian Constitution: s. 91(23) just puts “copyright” in the Federal government’s jurisdiction.
o The SCC has adopted the idea of the "advancement of letters" or "encouragement and
dissemination of works" (i.e. promoting literature); basically the same as the US.
(Thebérge)
Statutory Scheme
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US Copyright Act of 1976:
o § 102: Protects “original works of authorship fixed in any tangible medium of expression”(§ 102(a))
 § 102(a): Non-exhaustive list of categories of works that may obtain copyright.
(§ 102(a))
 This includes sound recordings, unlike in Canada.
(§ 102(a))
o § 103: Compilations
o § 104: First publication (not significant in this course)
o § 106: Economic rights: Includes the rights to reproduce, distribute, and to display or perform
publicly (like in Canada). Also includes the right to prepare derivative works, unlike Canada.
o § 106A: Moral rights – Restricted to authors of works of "visual art"
Canada Copyright Act:
o s. 5: Protects "works", which are exhaustively listed: "literary, dramatic, musical and artistic"(s. 5)
 However, each of those categories (except musical) is non-exhaustively defined.
o Other subject matter (or "Neighbouring rights", esp. in EU):
 ss. 15, 26: Performers' rights; s. 18: Sound recordings; s. 21: Broadcasters' signals
 These are usually derivative works (so this is sort of a limited right to derivative works);
their term is just 50 years and they do not acquire moral rights (no author, just an owner)
o s. 3: Economic rights (e.g. s. 3(1) – Right to (re)produce any work or substantial part thereof)
o s. 14.1: Moral Rights – Only applies to works, and are held only by the author.
Published vs. Unpublished:
o US Copyright Act:
 1909: Only protects published works, leaving unpublished works to state-level protection.
 1976: Protects both published and unpublished works, excluding state law
 nb – State law may still apply to non-fixed works (which the Federal statute excludes)
o Canada Copyright Act (1924): Abolishes common law copyright
(s. 89)
 Doesn't affect the equitable action of "breach of confidence" protecting unpublished works.
 Prior to 1998, unpublished works had perpetual protection (until published, of course) (s. 7)
1
Comparative Copyright
Copyrightable Subject Matter
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§ 102: Protects “original works of authorship in any tangible medium”. Thus, the requirements are:
o Writing: “Works” is open-ended (§ 102(a)), so Constitutional interpretation happens here.
 A physical rendering that gives "visible expression" to ideas – includes photos (Donaldson)
 Courts are not to evaluate the merits or worth of writings – protect ads too
(Donaldson)
 Obscenity was refused protection for some time despite this. Now it’s allowed (Mitchell)
o Originality: Although not required explicitly by the Constitution, courts have read it in
(Feist)
 The standard for originality is a “modicum of creativity”
(Feist)
 Formerly: “fruits of intellectual labour”, “original conceptions”
(Trademark Cases)
 Constitutional basis: the reference to authorship, which requires originality (Burrow-Giles)
 Simple Designs, clichés and common phrases are not enough for ©
(Magic Marketing)
 Example: A white envelope with a horizontal black stripe with white letters therein
saying "priority mail" is not sufficiently creative to attract copyright. (Magic Marketing)
 Thin Copyright: Some simple, non-intellectual pictorial works attract a "thin" copyright,
and so are only infringed by an exact copy. See also Idea vs. Expression. (Beardsley, Baker)
 Example: Insurance forms have so many legal requirements that being creative is very
difficult. They only acquire a “thin” copyright.
(Beardsley)
 Canada: The standard is one of “skill and judgment” – this is below “modicum of
creativity” and above “sweat of the brow” (the old test). In practice, same as the US
(CCH)
o Fixation: Statutory, not constitutional, but suggested by "writings" (in the Constitution)
 § 101 [“fixed”]: Focuses on embodiment in a “copy” or “phonorecord”. This may suggest
a requirement of corporeal containment. Also, it explicitly allows for simultaneous fixation.
 Performers’ Rights: These lack fixation; they are protected via the Commerce clause of
the US Constitution instead (to avoid the fixation requirement)
 Computer Memory: ROM [permanent] storage likely satisfies fixation, but what about
RAM [temporary] storage? There is legislation saying that copying a program in RAM is
not a violation of copyright if it is necessary for its operation; does this suggest that it might
otherwise be an infringement? Does this apply to infringement only, or also to acquiring ©?
 Canada: Judicially, not statutorily, required (and just for “works”)
(Canadian Admiral)
 This may be suggested by the “in any material form whatever” text (like §102?)
(s. 3)
Idea vs. Expression: In both Canada and the US, the idea/expression dichotomy matters.
o This is expressly stated in the US
(§ 102(b))
o Prof: There may be “thin copyright” in mundane works (Beardsley), but they shouldn’t get
copyright at all. It’s just sweat – should be using INS-style unfair competition torts
o Two Approaches: No copyright (and thus copying is allowed), or “thin copyright” with
curtailed scope (only literal copying)
o Blank Form Doctrine: No copyright in a “blank form” (but there is in a filled form)
(Baker)
 Prof: This was just a shortcut, but courts have treated it as a bright-line test.
 If it conveys information beyond merely being a form, then it is not "blank".
(Bibbero)
o If a work is so simple that there are only a certain number of ways to express the idea, then it
is not appropriate to regard it as an expressive work. It is really an idea.
(Morrissey)
Computer Works: Use the AFC analysis (similar to compilations & derivative works)
(Feist)
Compilations: Materials "selected, coordinated, or arranged" so as to be original
(§ 101)
o Unlike Canada, includes collective works (which only consist of other ©’d materials)
(§ 101)
o The copyright on such works extends only to what is original to the author
(§ 103)
o Compilations can consist entirely of facts, data, etc. – collection over contents
(§ 101)
Factual Narratives: There is no © in historical facts (or facts generally), only in fiction.
(Nash)
2
Comparative Copyright
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o A work that is presented as a fact is treated as a fact
(Nash)
o Similarly, “scenes a faire” (routine, basic, ordinary, well-known scenes) do not attract
copyright but their arrangement into a larger work may (these are basically facts)
(Hollin)
o Example: Conspiracy theorist produces “factual” accounts of a mobster’s killing; no ©.
(Nash)
o Example: Market statistics are facts (no ©), but market predictions aren’t (fiction – ©)(Wainwright)
Derivative Works: Authors have the general right to create derivative works from their works(§ 106(2))
o Debate: Should the standard for originality be the same or higher than original works?
 A greater extent of originality is necessary for copyright to attach to a derivative work
("true artistic skill", "substantial, not merely trivial, originality")
(Batlin)
 Policy: If a higher level of originality is not required, the first derivative author is basically
given a © and preventing others from similarly deriving for fear of infringement (Prof Howell)
o As with compilations, © extends only to the material contributed by the author
(§ 103(b))
 Example: Public domain metal statuette recast into plastic; acquires © as a derivative work,
but only to the extent that the author has added to it (i.e. only to the plasticness)
(Batlin)
 Canada: Only give derivative rights in specific instances (e.g. translations, novel
adaptations of dramas, sound recordings of performances)
(s. 3(1))
Pictorial, Graphic and Sculptural Works: Factors in assessing a photo’s originality:
(Mannion)
o Photographic originality: The selection of film, lens, filter, and camera.
 This is "technical" originality (which is just sweat) – not enough.
 A photo of a painting is just a "slavish copy" –photographic originality, but no © (Bridgeman)
o Features of the work:
 Rendition: How it is depicted? (angle of the shot, developing processes, filters’ effect on
the depiction of the image, etc. – ask “what does it look like”, not “what was done?”)
 Timing: Right place, right time – replicating it isn’t copying (it’s just “lucky”), only the
place and time as captured in the photo is protected (i.e. that exact scene)
 Creation of the Subject Matter: Who created the scene that is being depicted?
 This is the most important feature. But what if the subject did the creative work?
 e.g. instructing the subject to look "chilled out" (i.e. wear as much jewelry as possible)
o Canada: The owner of the physical embodiment (the film) owns the copyright. This is a totally
different system. Maybe "photographic originality" is relevant here (since we focus on the film)
 CCH and upcoming amendments to the CA may make these US cases relevant.
Characters: Recognizing © in something less than the plot itself
o Recognized where characters' traits/relationships/etc. were distinctive, well-delineated (Anderson)
 Example: Stallone’s Rocky IV infringed on the character of Rocky
(Anderson)
o Even a very detailed literary description of a character’s appearance isn’t enough to attract
copyright in that appearance – need a visual representation.
(Gaiman)
 Visual appearance is the “essence” of the character, but it isn’t everything: literary plot
matters (particularly with comics), so authorship may be joint.
(Gaiman)
o Canada: Similar to the US – “clearly delineated”, but also “well-known” (Preston, Green Gables)
 Visual Depiction is basically essential to find delineation.
Applied Art: “The most difficult area of American law to apply” – Prof. Howell.
o “Useful article”: An article having an intrinsic utilitarian function.
o The Test for protecting useful articles:
(§ 101)
 Is it useful? If not it automatically gets full © as a pictorial, graphic and sculptural work
 Mazer: Landmark case, first allowed protection of useful articles (fanciful lamp) (Mazer)
 Is it a pictorial, graphic and sculptural work? Separability test; are the P/S/G features…
 … capable of being identified separately from the work?
 … capable of existing independently from the useful parts of the article?
3
Comparative Copyright
 Prof: This is about conceptual separability; is it primarily artistic on its own?
Could it be marketed separately? Is the article just as useful without it?
 Is there infringement? Only consider the ©able (i.e. separable) components.
 Example: Facial expressions of mannequins were protected as an aesthetic feature (Pivot)
o Canada: We have strong protections under the Industrial Design Act (registered, 10 years of
exclusivity); © may vest in useful articles, but it can’t be enforced.
(ss. 64, 64.1)
 nb – Industrial design protection is very weak in the US (boat hulls/fashion).
Formalities
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Canada has no mandatory formalities (and never did – forbidden by 1908 Berne Convention)
o If the author can’t be found, royalties can be paid to the gov’t instead
(s. 77)
US didn’t sign Berne until 1988/1989, and those changes were not retroactive (Martin Luther King)
Thus, copyright may fall under three sets of rules:
1909-1978: Strict regime under the 1909 Act, applies only to published works (published => state).
o Failure to meet these formalities results in a loss of copyright (statutory and state common law):
 Notice: Work must include "copyright" or "©", the name of the author, and the year
 Very detailed provision; putting notice in the wrong place resulted in loss of copyright.
 Depositing
 Registration: Must occur within 5 years of publication.
o Publication: "the distribution of copies or phonorecords", incl. by sale/lease/rental
(§ 101)
 Distributing to a "limited group" (even the press!) is not publication.
(Martin Luther King)
1978-1988: Loosened regime of the 1976 Act, applies to published and unpublished works:
o Required notice and registration, but less detailed (e.g. location of notice was less important)
1989-Present: Such works fall under Berne, and so no formalities are necessary
o Exception: US residents/citizens must register their © prior to making an infringement claim.
o Exception: To obtain statutory damages, copyright must be registered (even for non-residents)
 Canada: No registration required for statutory damages.
Exclusive Rights under Copyright
Reproduction
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§ 106(1): Right “to reproduce the copyrighted work in copies or phonorecords”
(§ 106(1))
§ 101 [“copies”]: Material objects (but not phonorecords) in which a work is fixed and from which
the work can be perceived, reproduced, or otherwise communicated (includes the first fixation) (§ 101)
Test for Infringement: Two-part test that is often applied in one big blob
(Amstein)
o Copying: Don’t need to show directly, just need access and similarity.
 If there is substantial similarity, access can be inferred.
(Ty)
 Presumed access can extend to subconscious copying (e.g. Billboard 100 hit) (Bright Tunes)
o Substantiality: The response of the ordinary lay hearer (in the author’s intended audience)
Remember: The distinction is between “copying” and “culpable copying”. Need substantiality, and
need the copied part to be a non-idea protected expression. Idea trumps infringement
(Rosenthal)
o Copying mistakes and other signature elements can swing the balance away from idea towards
expression (and thus infringement) – might also factor into substantiality
(Steinberg)
Canada: We have a similar right to reproduction (although infringement analysis does give some
[lesser] weight to expert testimony)
(ss. 3(1); 27(1), (2))
4
Comparative Copyright
Derivative Works
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§ 106(2): Right “to prepare derivative works based upon the copyrighted work”
(§ 106(2))
§ 101 [“derivative work”]: Broad definition, includes translations, recordings, etc, and any form in
which the work is “recast, transformed, or adapted”
(§ 101)
Originality: Whether the base work must be an original work of authorship in order to find
infringement is a matter of debate; it is only explicitly required for finding copyright in the
derivative (and then only in the second sentence of the § 101 definition)
o Recall: The standard for originality is also up for debate; is it more than usual (“true artistic
skill – Batlin) or just ordinary originality? Of course, this only matters if originality is needed
There is a spectrum of derivative uses:
o Transformation of the original work: This is the high point.
 Debate: See above; does the transformation need to be original to be infringing?
 The test is whether there is “substantial similarity” between the works, not whether the
original work could be reproduced from the derivative work
(Horgan)
o Use in another work:
 Debate: Does use constitute a derivative work? 9th Circuit: Yes; 7th Circuit: No, no
originality (and first sale should be read to apply here anyways – like Théberge!)
(Lee)
 Example: Affixing a work on a tile is not “transformation”; it’s just like placing the work in
a frame (which is really just use of the work)
(Lee)
o Prof: Where does the derivative right end and non-literal reproduction begin?
 Example: Photobook of a choreographed ballet is derivative and non-literal copying (Horgan)
Example: ∆ cuts up old magazines and rebinds them into themed booklets. No reproduction –
infringement of the derivative right (transformation: reordering of articles)
(National Geographic)
o Prof: Note the overtones of economic [unfair] competition.
Plot: Taking or extending plot can constitute a derivative work
o Example: ∆ collects user-created levels for π’s video game and puts them on a disc. Derivative
work – the “plot” (zapping aliens) is unchanged. Taking plot is transformation
(Micro Star)
o Example: "Coming through the Rye", a sequel to "Catcher in the Rye", found to be a derivative
work; publication banned. Same characters (but older), continues the original plot(Salinger Estate)
Canada: There is no general derivative right (but there are some specific rights, and moral rights)
o Consider National Geographic – whose moral rights are being infringed? The articles’ authors
(does context matter)? The creator of the compilation [i.e. the magazine]? Who is that creator?
Distribution
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§ 106(3): Right to distribute to the public by sale, transfer of ownership, or rent/lease/loan (§ 106(3))
o § 101 [“Publication”]: This is defined to mean distribution (but not performance)
(§ 101)
First Sale (or “exhaustion”): A lawful owner of a copy of the work is entitled to sell or dispose of
that copy without authorization, notwithstanding § 106(3)
(§ 109(a))
o Derivative Works: § 109(a) does not apply to § 106(2), so lawful owners are not entitled to
create derivative works of their copies, just to dispose of them.
o Parallel Importation: First sale applies to § 602 [importation] on a universal basis, so a sale
outside the US means that importing the copy into the US doesn’t infringe § 602 (Quality King)
o Electronic Distribution: No first sale doctrine here (it’s really a reproduction anyways)
o Per-Copy Basis: The distribution right isn’t extinguished for the whole work, just for the copy
o Example: ∆ cuts up comics, rebinds, sells. First sale – not an infringement of § 106(3) (Fawcett)
Canada: Publication right only applies to unpublished works.
o Parallel Importation: This is really a ™ issue. s. 27(2) doesn’t prevent parallel imports
(Euro)
5
Comparative Copyright
Public Performance
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First sale does not apply.
§ 106(4): Right to perform certain types of works publicly (§ 106(6) adds sound recs.) (§ 106(4), (6))
o § 101 [“Perform”]: To recite, render, play, dance, or act it, including playing video/sound (§ 101)
o § 101 [“Publicly”]: Combines the Canadian notions of “in public” and “to the public”; means:
 To perform or display in: (1) a place open to the public, or (2) in any place in which a
substantial number of persons is gathered (with exceptions for family gatherings, etc.)
 Canada: See our CA s. 3(1) – "in public"
(s. 3(1))
 To transmit to the public
 Canada: See our CA s. 3(1)(f) – communicate to the public
(s. 3(1)(f))
Public Display
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§ 106(5): Right to display publicly
o § 101 [“Display”]: To show a copy of it (incl. by means of any device – no fixation needed!)
o § 101 [“Publicly”]: See Public Performance, above.
§ 109(c): First sale applies, but it’s restricted. Can display via projection of only 1 image at a
time, and must be displayed to viewers present in the place the copy is located (i.e. same building)
o Prof: This is historically an orphaned right, but it might be more important with the Internet.
Canada: Exhibition right only applies to certain artistic works, requires “public exhibition” [i.e.
“event”], and only applies to works created after 1 Jun 1988, but there is no first sale.
(s. 3(1)(g))
o Prof: This is a political compromise; authors wanted the droit de suite (i.e. percentage of each
resale of the work – in the EU, artists get 10% of the resale value).
Moral Rights
Canada
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Only applies to works (and not other subject matter)
s. 14.1: Lays out the rights contained in moral rights:
(s. 14.1)
o Right to Association: Only to acts listed in s. 3 and “where reasonable in the circumstances”
o Right of Anonymity: Subject to same limitations as the right to association.
o Right of Integrity: Subject to ss. 28.1 and 28.2: Infringed "only if the work is, to the prejudice
of the honour or reputation of the author,
(s. 28.2(1))
 (a) distorted, mutilated or otherwise modified; or
 In the case of a painting, sculpture or engraving, prejudice is deemed here
(s. 28.2(2))
 (b) used in association with a product, service, cause or institution."
s. 28.2(3): Exceptions to infringement (change in location/framing/etc or restorative modifications)
Statutory damages (under s. 38.1) are likely limited to economic rights (but no case law yet)
Assignment and waiver: Assignment isn’t allowed, but waiver is (not implied by assignment of ©)
Fair dealing does not appear to apply to moral rights. (US – fair use does apply to moral rights)
Authorization Right: Doesn’t apply to moral rights (US – the § 106 authorization right has never
been used on moral rights, but they have the tort of contributory infringement, which does apply)
Scope of distortion: (in the US, moral rights only apply to the original work, and cover destruction)
o Thematic distortion: Moral rights are likely infringed by distortion of a copy (no case law)
o Destruction: Unclear whether this is a “distortion”. Are we protecting the work or the author?
6
Comparative Copyright
US
This was in the context
of a NY Act, but likely
applies to § 106A
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§106A: Sets out moral rights
o Claim of Authorship (like the EU right of paternity, Canada right of association) (§ 106A(a)(1))
 Includes the right to prevent himself from being named as the author of a work that he did
not create (this is like a passing off provision; no CA analogy in Canada)
(§106A(a)(1)(b)
o Limited right of Anonymity: If there is a distortion/etc, that would prejudice the author's
honour, he has a right to prevent the use of his name in association with it.
(§106A(a)(2))
 Example: π makes controversial art with sexual themes. ∆ complains in a mass letter that
crops the images to focus on sexual imagery. Prejudicial – should have removed π’s name
or labelled the excerpts as “incomplete” (nb – this was under a NY statute)
(Wojnarowicz)
o Right to prevent distortion/mutilation/modification: Like integrity in Canada
(§106A(a)(3))
 This applies only to the act of distorting the artwork, not to the continuing display of it. (Pavia)
 This includes a right to prevent destruction of a work of "recognized stature"(§106A(a)(3)(B))
 Rationales: The preservation of art history is the primary US rationale for this.
 Preventing negative impact on reputation of the artist is another rationale, but it’s
more flexible; e.g., destroying a site-specific piece to free up land likely bears no
prejudice to the author’s reputation (as in Martin, cited in VARA)
(VARA)
 When assessing distortion (or, for destruction, whether the work was of “recognized
stature”), ask the [experts in the] relevant artistic community – objective test(VARA, Pollara)
 The artistic community is also relevant when determining whether a work is visual art (“a
clay head is not a model” – Queen Catherine [VARA]), but it is not determinative. (Phillips)
 Example: A park is not a work of visual art, despite the community’s views.
(Phillips)
Limitations: Moral rights are limited to works of visual art
(§ 106A(a))
o § 101 [“work of visual art”]: A painting, print, sculpture or photographic image with 200 or
fewer copies (if more than 1 copy, they must be signed and numbered) (§ 101 “work of vis…”(1))
o Exclusions: Several types of works are not given moral rights. Note specifically:
 "Applied art" (this links to the exclusion of "any work not subject to copyright protection")
 "Electronic publication" (so moral rights may be limited in the electronic context)
 "Advertising" and "Any work made for hire" (i.e. in the course of employment)
o Fair Use: Applies to moral rights ("notwithstanding §106A" – § 107)
(§ 107)
History: Prior to enacting § 106A, courts would attempt to fill the gap by applying other statutes
o Example: The Lanham Act, a ™ and unfair competition statute, used to address association
with distorted works (e.g. truncated Monty Python sketches – misrepresentation)
(Gilliam)
Europe
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Debate (EU): It has been suggested that the general legal concept of "abuse of rights" should be
employed against moral rights to prevent them from being exercised in place of economic rights.
Le droit d’auteur: The French Code begins with "attributes of intellectual and moral nature ... as
well as attributes of economic nature". Right away, the focus is on moral rights.
o Prof: French law focuses on a “work of the mind”, never on “sweat of the brow”. This is why
mechanical contrivances and neighbouring rights give them so much trouble conceptually.
o This is not distinct from © – it is part of copyright, intertwined with it (Prof: “like a rope”)
Originality: Described as the "imprint of the author's personality" on the work.
o This makes understanding some works (e.g. derivative works) easier – is there an imprint?
o This makes understanding other works (e.g. software, map making) harder. Need compromise.
Right of Divulgation: The affirmative right to control the first disclosure of a work to the public
o This takes precedence over contract and economic rights. e.g. if a publisher chooses not to
publish, this gives the author the right to find a different publisher, regardless of their contract
Right of Retraction: author can retract a work (must give full compensation/indemnification)
7
Comparative Copyright
Fair Use and Fair Dealing
Canada (Fair Dealing)
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ss. 29–29.2:
US (Fair Use)
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Rationales: Always remember the rationale for ©: to promote the progress of science.
o Fair use is a vehicle for implementing first amendment principles in copyright law
(Suntrust)
st
 The idea/expression dichotomy achieves the 1 Amendment purpose in ©
(Harper)
Categories: The statute gives non-exhaustive categories of use
(§ 107)
Factors relating to fairness (these include statutory factors):
(§ 107)
o Purpose & character of the use, e.g. commercial vs. nonprofit/educational purposes
(§ 107)
 Transformation suggests that the use was fair, but isn’t necessary for fair use. More
transformation means that science is progressed, so the other factors matter less
(Campbell)
 Example: “Food-chain Barbie” (Barbie in kitchen appliances) is “transformative”; it
transforms the doll’s associations to say something new/contrary (parody)
(Mattel)
 Productive vs. unproductive uses (productive are more fair – progress of science)
(Sony)
 Example: VCR time-shifting is productive (more people see it), fair use.
(Sony)
 An exploitative work is very likely unfair
(Perfect 10, Harper)
o Nature of the copyrighted work
(§ 107)
 Fictional works are closer to the core of © than non-fiction
(Campbell)
o Amount and substantiality of the portion used in relation to the ©’d work as a whole
(§ 107)
 This varies with the nature of the use; e.g. parody often takes a substantial part
(Campbell)
o Effect of the use upon the potential market for or value of the copyrighted work.
(§ 107)
 Whether or not there is direct competition is relevant.
(Campbell)
 Consider the nature of the work; e.g. parody is meant to be critical, so it’s fair
(Campbell)
 This includes the market for derivative works.
(Harper)
Unpublished works: A work being unpublished is not a bar to fair use of that work
o As a matter of interpretation, unpublished status may work against fair use.
o This is a “critical element” in finding unfair use (esp. when it’s about to be published?) (Harper)
o Canada: Our exclusive publication right only applies to unpublished works, so US does not
have this acting against fairness (but they still have this view – not a good sign for CCH)
Fair use is a "privilege", "defence", or "excuse" (no expression of "user rights" in the statute).
Debate: The allowable degree of similarity of visual works is unclear:
o Example: Mickey Mouse portrayed in sexual/drugged states. Unfair – You may copy only what
is necessary to “conjure in the mind of the reader” the original work.
(Air Pirates)
 This is tempered by Mattel – altering associations is transformative.
(Mattel)
o Example: Parody of Gone with the Wind where the second half takes place from the
perspective of the slaves. Despite substantial similarity, fair use (1st Amendment issues) (Suntrust)
Focus of the inquiry: Although Sony emphasized the purpose of the use, Campbell retracted to
focusing on the type of use (e.g. parody/transformative). This may restrict fair use.
Thumbnails in Online Searches: Courts focus on the commercially exploitative nature here
o Example: ∆ has thumbnails of π's photographs; they show whole work. Clicking it sends you to
π's website. Fair use; commercial, but provides access to π’s website, like a "visual footnote"(Kelly)
o Example: As with Kelly, but now with ads alongside the images. Unfair.
(Perfect 10)

8
Comparative Copyright
The Authorization Right and Cultural Rights


Authorization Right:
o Canada uses it all the time (particularly against 3rd parties)
o US never uses it, prefers to use their tort of contributory infringement.
Cultural Rights: Rights protecting the culture of traditional societies (indigenous and other)
o This is hard to define:
 "Traditional knowledge and expressions of culture"?
 "Folklore" is too narrow (but favoured by Europeans)
 "Cultural property" is too broad
o Included and Excluded Concepts:
 This doesn't include patent-related knowledge of flora and fauna.
 This doesn't include TM-related features like cave paintings.
 This does include land, which has its own legal issues.
o Difficulties in extending copyright to these rights:
 Artifacts: These are usually for a functional purpose, not aesthetic.
 Time limit; copyright provides a limited term so as to incentivize production (and later
make public). Cultural items have already been created – no incentive needed.
 Prof: This is the “biggest issue” in applying © in this area.
 Moreover, the usual time limit has passed – what limit should be imposed here?
 Fixation: Most forms of cultural knowledge are not fixed (e.g. oral), but this is mostly an
evidentiary issue; it can be overcome.
 In some (undeveloped) countries, it's enough for the IP to have "endured"
 Communally owned: Most forms of cultural IP is communally owned.
 Example: Australia: Where an indigenous artist produces a work using cultural IP that
went beyond what was permitted by the community, he got the copyright but it went
into a constructive trust for the benefit of the community.
o Protections, actual and suggested:
 Statutes in UK and NZ allow for indigenous symbols to be protected from commercial use
 Generally, protections only apply insofar as the community does not use its IP for
commerce. As they enter the commercial realm, protections tend to vanish.
 Prof: Sui generis rights may be (and likely are) necessary
 e.g. Where certain symbols are traditionally only to be used by males or females
 e.g. Where something is published that shouldn't have been it can be retracted
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