1 COPYRIGHT TUTORIAL Professor Samuelson 1/19/99

2 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)

3 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)

4 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

5 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, 1st A, commerce clause

6 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

7 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

8 “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

9 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

10 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

11 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

12 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)

13 HOW AUTHORS EXPLOIT RIGHTS License rights to others on exclusive or non- exclusive 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

14 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)

15 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)

16 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)

17 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

18 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

19 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

20 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

21 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

22 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

23 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

24 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

25 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?

26 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