Intro to Copyright: Originality, Expression, and More Intro to IP – Prof Merges

The Nature of Copyright Long-lived, but narrow protection Life of author plus 70 years Protects only “expression,” NOT underlying idea Traditonally, most effective in the analog “copyright industries” – Publishing – Movies – TV – Radio Expanding Impact Now

Comparison with Patent Copyright is “thinner” but longer Copyright is easier to obtain, fewer and different requirements Copyright has more specific “industry tailoring” than patent law, in general

Section 102 “Copyright subsists...” Versus patent law...

Section 101: create A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particualar time constitutes the work as of that time,, and where the work has been prepared in different versions, each version constitutes a separate work.

Patent vs. copyright Invention  claims Work  copyrighted subject matter

Copyrightable Subject Matter. The subject matter protectable by copyright spans the broad range of literary and artistic expression—including literature, song, dance, sculpture, graphics, painting, photography, sound, movies, and computer programming. Ideas themselves are not copyrightable, but the author’s particular expression of an idea is protectable.

Threshold for Protection. A work need only exhibit a modicum of originality and be fixed in a ‘‘tangible medium of expression.’’ Formalities. Notice of copyright is required on all works published prior to Registration of a copyright is not strictly required for its validity, but is required of U.S. authors prior to instituting an infringement suit. Deposit of copies of the work is required to obtain registration of copyright.

Authorship and Ownership. The work must have been created by the party bringing suit, or rights in the work must have been transferred by the author to the party bringing suit. In the case of ‘‘works made for hire,’’ the employer and not the original creator is considered the author and the owner of the work.

Duration of Copyright. A copyright lasts for the life of the author plus 70 years, or 95 years from first publication in the case of anonymous works, pseudonymous works, works made for hire (or 120 years from the year of creation, whichever occurs first).

Rights conferred Reproduction Right to prepare derivative works (DWs) Distribution Performance and Display Anticircumvention of technical protections (DMCA) Moral Rights

Repro right Reproduction. The owner has the exclusive right to make copies. She may sue a copier for infringement if the copying is ‘‘material’’ and ‘‘substantial,’’ even if the copy is in a different form or is of only part of the whole.

Derivative Works. The owner has the exclusive right to prepare derivative works, which are works based on the original but in different forms or otherwise altered (such as translations, movies based on books, etc.). These derivative works are themselves copyrightable to the extent that they contain original expression. Note that the right to create derivative works is closely related to the right to reproduce and employs essentially the same standard for infringement.

Distribution. The owner has the right to control the sale and distribution of the original and all copies or derivative works, including licensed copies. However, this right extends only to the first sale of such works. The owner does not have the right to limit resale by purchasers of her works (except in certain limited circumstances).

Performance and Display. The owner has the right to control public (but not private) performance and display of her works, including both literary and performance- oriented works. This right extends to computer programs and other audiovisual works. The owner generally does not, however, have the right to prevent the display of a particular original or copy of a work of art in a public place.

Anticircumvention. The Copyright Act prohibits the circumvention of technological protection measures (such as encryption) designed to safeguard digitally encoded works, subject to several exceptions and limitations.

Moral Rights. Visual artists possess an attribution right in their works as well as rights to prevent intentional distortion, mutilation, or other modification of their work, and to block destruction of works of ‘‘recognized stature,’’ subject to several limitations.

Copyrights do not give their owner the exclusive right to prevent others from making, using, or selling their creations. Rather, they give the author only the right to prevent unauthorized copying of their works, as well as the right to prevent some limited types of uses of those works (such as public performances) when derived from the copyright owner. The independent development of a similar or even identical work is perfectly legal.

Infringement standard The infringement standard applies this policy It is a substantive limitation on copyright law Requires proof of (1) copying and (2) substantial similarity

Different Industries, Works, Rights

1. Idea/Expression Dichotomy §102(b), Baker v. Selden 2. Useful Article Doctrine 3. Government Works § “Fair Use” Limiting Doctrines

Originality standard [O]riginality entails (1) independent creation of a work (2) reflecting a modicum of creativity. Independent creation requires only that the author not have copied the work from some other source.

Feist Rural Telephone Service – the local phone company in northwest Kansas – Provide service, assign phone numbers, obtains info as a byproduct of those activities – Required by law to issue phone book

Feist (499 US 340 [1991]) Telephone Directory A Ackerman, Harold Armstrong, Saundra B Benavides, Fortunato C Clinton, William J. Originality: Impact on Databases

August 6, 2015Copyright © Randal C. Picker26 Feist – Distribute phone books: free to consumers, charge companies to be in Yellow Pages Feist Publications – Entrant into area-wide phone book market – Struck deal with 10 of 11 to license listings; Rural refused – Feist got names from phone book; sought to verify listings; did most not all

“Facts” in Feist “Two Well-Established Propositions” – Facts are not copyrightable – BUT – – Compilations of facts are copyrightable

Facts as Discoveries Authors “discover” facts, do not create or “originate” them – Where else have we seen this distinction?

Single facts Not difficult to deal with

A Copyright Office regulation denies copyright protection to ''[W]orks consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists of tables taken from public documents or other common sources.” 37 CFR § 202.1(d).

Originality and the Constitution The Congress shall have the Power... – 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; – (Art. I, § 8, cl. 8)

August 6, 2015Copyright © Randal C. Picker32 Feist: What is Copyrightable in a Compilation? S/C/A – Selection – Coordination – Arrangement

August 6, 2015Copyright © Randal C. Picker33 Essence of Copyright Hard work (“sweat of the brow”) v. originality Feist finds originality to be a constitutional requirement for copyright protection by Congress – Raises difficult issues about the ability of Congress to protect merely hard work creations, even under, say, the Commerce Clause

Contra Locke? No!

Copyright in Case Reports Are judicial decisions copyrightable? What about West’s enhanced case reports? See Matthew Bender & Co. v. West Pub. Co., (2d Cir. 1998) What about West’s star pagination? See Matthew Bender & Co. v. West Pub. Co. (2d Cir. 1998)

CCC Information Services v. Maclean Hunter (2d Cir. 1994) Copyrightability of the Automobile Red Book – Official Used Car Valuations Critique of Feist: concept of “social facts”

Seng-Tiong Ho v. Taflove

Finite-difference time-domain model of lasing action in a four-level two-electron atomic system Shih-Hui Chang and Allen Taflove Department of Electrical and Computer Engineering Northwestern University, Evanston, IL Abstract: We report a new finite-difference time- domain (FDTD) computational model of the lasing dynamics of a four-level two-electron atomic system. Optics Express, Vol. 12, Issue 16, pp (2004),

Seng-Tiong Ho v. Taflove, 648 F.3d 489 (7 th Cir. 2011)

The district court granted summary judgment in favor of the defendants for all claims, see Ho v. Taflove, 696 F.Supp.2d 950 (N.D.Ill.2010) This opinion affirms: model is an unprotectable idea

Under the merger doctrine, when “there is only one feasible way of expressing an idea, so that if the expression were copyrightable it would mean that the idea was copyrightable,” the expression is not protected. Bucklew v. Hawkins, Ash, Baptie & Co., LLP, 329 F.3d 923, 928 (7th Cir.2003).

The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. – 648 F.3d at 498

[T]he “arrangement, expression and manner of presentation” of the mathematical data could be protected by copyright, even if the equations and formulae themselves were in the public domain. Id. Specifically, we commented on the coloring, wording and location of titles and type of shading used by the parties. [Citing Flick–Reedy Corp. v. Hydro–Line Manufacturing Co., 351 F.2d 546, 548 (7th Cir.1965)]

Limiting doctrines Formalities Originality (subject matter) True limitation on original work whose author has complied with formalities: Idea- Expression dichotomy

Baker v. Selden What exactly was copyrighted here? What did the copyright owner seek to achieve by the suit?

Section 102(b) 17 USC Sec. 102(b): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Section 102(b) 17 USC Sec. 102(b): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Section 102(b) 17 USC Sec. 102(b): In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Pam Samuelson: The Story Behind Baker v Selden, on SSRN.com