Intellectual Property
Boston College Law School
January 9, 2008
Copyright - Intro, Requirements
Topics
• Intro to Copyright
– Basic Outlines
– Theories
– History
• Requirements
– Originality
– Fixation
– Formalities
What is copyright?
• Subject matter: creative and artistic works
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Books, magazines, newspapers
Music, movies
Plays, sculpture, painting, drawings
Architectural works
Software
• Does not include:
– Facts
– Ideas
– Inventions
Example: Harry Potter
Why do we have copyright?
1.
2.
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4.
Economic theories
Labor desert theories
Personality theories
Interest group theories
Economic theories
• Basic idea:
– Copyright is necessary to provide authors with
incentives to engage in creative activity
• Responds to “public goods” nature of information
• Without protection, others could copy and sell
• Limitations:
– Protection may reduce broad access to works
• Raises costs of copyrighted works to consumers
• Raises costs of creating derivative works
– No data re: how much is “enough” or “optimal”
Labor-Desert Theories
• Basic idea:
– Copyright law serves to reward authors for their
creative labor
• Based in part on writings of John Locke; natural law
• Consistent with instincts re: rewarding effort
• Limitations
– Hard to know what limiting factors
– How much of work’s success is due solely to
author’s labor?
Personality Theories
• Basic idea:
– Copyright law protects an artist or creator’s
personal connection to a creative work
• Some works are not merely commodities
• Instead, may be bound up with creator’s identity
• Limitations
– Hard to know what limiting factors
– Not applicable to primarily commercial works
Interest Group Theories
• Basic Idea:
– Copyright law largely reflects and protects the
interests of the copyright industries
• Industries are wealthy, focused, and organized
• Consumers are diffuse, passive, disorganized
• Limitation
– Primarily a descriptive theory - provides little
normative guidance
Copyright Timeline
• 1556: Stationers’ Guild
– Right to publish given to publishing houses
– Content heavily regulated by government
• 1710: Statute of Anne
– Right to make copies given to authors
– Term: 14 years, plus 14 year renewal; certain formalities
• 1776: State Copyright Laws
– Modeled on Statute of Anne
– Numerous conflicting requirements
– Constitutional grant of authority
Constitutional Grant
• U.S. Const. Art. I, § 8, cl. 8:
– “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 ”
Copyright Timeline (cont.)
• 1790: First Federal Copyright Act
– 14 years plus 14 year renewal
– Originally books, but expanded to prints, music, photos, etc.
• 1909: First Major Overhaul
– 28 years, plus 28 year renewal
– Expanded to encompass all writings
• 1976: Latest Major Overhaul
– Life + 50, or 75 years for corporate authors
– Formalities loosened
Copyright Timeline (cont.)
• Recent Amendments to 1976 Act
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1980: Computer Software included
1988: Berne ratified; formalities eliminated
1990: Architectural Works protected
1992: Audio Home Recording Act
1998: Sonny Bono Term Extension + Digital
Millennium Copyright Act
17 U.S.C. § 102
• (a) Copyright protection subsists,… in original works of
authorship fixed in a tangible medium of expression, ….
Works of authorship include the following categories:
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(1) literary works;
(2) musical works, …;
(3) dramatic works;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audio visual works;
(7) sound recordings; and
(8) architectural works
Originality
• Elements
– 1. Independent creation
– 2. Some modicum of creativity
• Not original
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Short words and phrases
Works dictated purely by function
Literal reproductions of public domain works
Some databases
Feist v. Rural
Feist v. Rural
• “It may seem unfair that much of the fruit of the compiler’s
labor may be used by others without compensation. As
Justice Brennan has correctly observed, however, this is
not ‘some unforeseen byproduct of a statutory scheme.’ It
is, rather, ‘the essence of copyright,’ and a constitutional
requirement. The primary objective of copyright is not
to reward the labor of authors, but to ‘promote the
Progress of Science and useful Arts.’”
Yellow Pages
Scope of Feist?
• Hypo 1
– Want to copy West dbase of opinions
– Upload on internet, charge for access
– What issues? What advice?
• Hypo 2
– Have a dbase of travel info on internet
– Want to prevent competitors from copying
– What issues? What advice?
Fixation
• 17 U.S.C. § 102:
– “fixed in any tangible medium of expression,
now known or later developed, from which
they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of
a machine or device.”
Fixation
• Possible justifications
– Constitutionally required
– Defines scope of the entitlement
• Avoids unreasonable liability
• Evidentiary value in infringement action
– Evidence of commercial importance of work
– Marks point at which copying is problematic
Formalities
Notice
Publication
Registration
Deposit
1909 Act
Required. Must
provide date,
author, copyright
symbol.
Required.
Not required. But
prerequisite for bringing
claim.
Not required. But
may be fined.
1976 PreBerne
Still required. But Not required. But Not required, but:
more lenient if fail triggers notice
i. Prima facie validity
to provide notice. requirement.
ii. Required before claim
iii. Statutory damages
and fees
Same.
Not required. But Not required.
if notice, then no
innocent
infringement.
Same
(1978-89)
1976 PostBerne
(1989- )
Same, except that for
foreign works,
registration not
necessary before suit
Next Assignment
• Read II.C.1 – Subject Matter - Exclusions