Copyright Law Boston College Law School February 25, 2003 Rights - Reproduction, Adaptation

Exclusive Rights 17 U.S.C. §106 –“Subject to sections 107 through 122, the owner of the copyright … has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work … (2) to prepare derivative works … (3) to distribute copies … to the public … (4) … to perform the copyrighted work publicly … (5) … to display the copyrighted work publicly … (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

Limitations on Exclusive Rights Fair use (§ 107) –“[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching, … scholarship, or research, is not an infringement of copyright. In determining whether the use … is a fair use, the factors to be considered shall include: (1) the purpose and character of the use … (2) the nature of the copyrighted work … (3) the amount and substantiality of the portion used … (4) the effect of the use upon the potential market …

Limitations on Exclusive Rights Detailed limitations (§§ ) –108 - Reproduction right: libraries –109 - Distribution right: first sale doctrine –110 - Performance and display right: non-profits –111 - Performance and display right: cable transmissions –112 - Broadcasts: ephemeral recordings –113 - PG&S works: scope of rights –114 - Sound recordings: scope of rights –115 - Musical works: compulsory cover license –116 - Musical works: jukebox licenses –117 - Computer programs: limitations on rights –118 - Non-commercial broadcasting –119 - Secondary transmissions of broadcasts –120 - Architectural works: scope of rights

Works v. Rights

Property v. Liability Rules Property Rules –Enforceable by injunction (in addition to dam.) –Absolute right to refuse –E.g. trespass Liability Rules –Enforceable only by damages –Can violate right, as long as willing to pay –E.g. breach of contract

Compulsory Licenses Copyright compulsory licenses –Cable television license (§ 111) –Digital performance of sound recordings (§ 114) –Mechanical (cover) license (§ 115) –Public broadcasting license (§ 116) –General satellite retransmission (§ 119) –Local satellite retransmission (§ 123) –Audio home recording act (§ 1001)

Compulsory Licenses Benefits –Avoid transactions costs from bargaining –Avoid strategic behavior, holdout problems –Ensures access; no absolute right to refuse Costs –Administrative costs –Royalties may not reflect market prices

Reproduction Right 17 U.S.C. §106 –“Subject to sections 107 through 122, the owner of the copyright … has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords...

Reproduction Right Statutory limitations –Public library exceptions for archiving, use (§108) –Ephemeral copies while broadcasting (§112) –Limitation on sound recording rights (§114) –Compulsory licensing for musical works (§115) –Copies of software for backups and use (§117) –Copies for the blind, or other disabilities (§121) –Audio Home Recording Act (§1001) Personal, noncommercial copies of music

Reproduction Right Musical Works and Sound Recordings –Sound recordings - limited repro rights (114) Cannot literally make copies of sound recording However, can make own sound recording, mimicking sounds exactly –Musical works - cover license (115) Once sound recordings have already been sold Another artist can record and sell copies, if comply with statutory formalities –Payment of statutory royalty –Can adapt and interpret, but cannot fundamentally change

Reproduction Right Internet legal issues –Web browsing RAM copies Cached copies –ISP liability for: Copying and forwarding copyrighted files Storing files on behalf of users Caching to improve performance –Search engine liability –Spiders and bots searching for information –Internet archives

Reproduction Right Possible responses to internet liability –Express or implied licenses –Fair use –Lack of enforcement –Express privileges for transitory copies

Reproduction Right Digital Millennium Copyright Act: ISPs –Privilege for ISP transmissions –Safe harbor for ISP caching –Safe harbor for materials stored for users Designate person to receive statutory notice Must notify customer of the notice Must respond by taking down w/in certain time May repost if customer responds with counter notice Result: shielded for liability

Adaptation Right 17 U.S.C. §106 –“Subject to sections 107 through 122, the owner of the copyright … has the exclusive rights to do and to authorize any of the following: … (2) to prepare derivative works based upon the original.” 17 U.S.C. §101 –“A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version … or any other form in which a work may be recast, transformed, or adapted.”

Adaptation Right

Why an adaptation right? Arguments in support –Author created something of value; reward –Additional incentive for creating initial work –Provide for orderly exploitation of work –Preserve integrity of the work Arguments against –Gives too much control over downstream creativity –Hinders development of follow-on works –Existing incentives sufficient –No need for orderly exploitation

MicroStar v. FormGen

PC OS Duke Nukem Game EngineSource Art MAP Files To PC

Hypothetical

Assignment for Next Class Start VI.B. - Public Distribution, Performance, Display –Through Columbia Pictures case