International Intellectual Property Law Summer 2009 Introduction to Copyright As an IP Form Class 3: June 17, 2009 Prof. Fischer

REVIEW Class 1: Introduction to Class Introduction to Intelelctual Property Introduction to International IP Law Introduction to Treaties Main International Organizations Involved in Protecting IP Globally

Today’s Class Today is a brief overview of Copyright as a form of intellectual property Protection for creative expression: contrast with industrial property (originally viewed as business as opposed to artistic)

Topics for today History of copyright law Differences between civil law and common law systems Conditions for protectability Rights of the Copyright Owner Duration of Copyright Infringement/Remedies for Infrignement Exceptions to copyright protection

History of Copyright First, we will consider the history of copyright in common law systems Then how copyright law developed in civil law systems

Copyright Concepts Are Very Ancient Ancient Rome: plagiarism Monastic Age: First Copyright decision? 6 th century: St. Columba, Finnian and King Diarmid : “To every cow her calf”

Modern Copyright is Technology’Child WHAT WAS INVENTED IN AROUND 1450?

Privileges and the Stationers’ Company Livery company in the City of London Facilitated Crown control of printing Had exclusive right to practice the art of printing until Licensing Acts expired in 1694

COPYRIGHT IN COMMON LAW SYSTEMS IS THE PRODUCT OF CENSORSHIP

The First Copyright Statute The Statute of Anne (1710) See: history.com/anne.ht ml history.com/anne.ht ml Elements of Later Copyright Statutes (authors rights, registration, deposit, duration, remedies)

Statute of Anne

U.S. Constitution: Patent and Copyright Clause U.S. Const. Art. I sec. 8 cl. 8 The Congress shall have power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries

Copyrights in U.S. law Federal Copyright Statutes starting in Current federal copyright statute : Copyright Act of 1976 (as revised) Incorporated 1909 Act

Historical Trends in U.S. Copyright Law 1. Progressive expansion of copyrightable subject matter 2. Expansion of duration 3. Growing U.S. participation in international copyright system 4. Steadily reduced importance of formalities

AUTHORS RIGHTS in CIVIL LAW SYSTEMS Early history of printing monopolies Authors rights (droit d’auteur) originated in France during French Revolution Philosophical basis in natural rights I will use copyright for both authors rights and copyright

STATE OF COPYRIGHT LAW BY 1886 (date of Berne Convention) By 1886 almost all of Europe had copyright laws. Outside Europe US had copyright law since 1790 and laws on copyright in 7 Latin American countries.

Differences between many common law and civil law systems Civil Law systems emphasize need to protect author Civil Law systems have greater protection for moral rights Civil Law systems often treat performing rights outside of copyright under concept of neighboring rights or related rights, a lesser form of protection than author’s rights.

3 main conditions of protectability 1. Copyrightable Subject matter 2. Fixation 3. Originality

Copyrightable Subject Matter Most systems define it very broadly Big expansion in most systems in what is protectable over past 200 years What types of subject matter can be protected under copyright?

Neighboring Rights Civil law systems (such as Poland) generally protect performances, sound/video recordings broadcasts as neighboring rights. See ch. 11, Polish Copyright Act 1994 (as amended) Common law systems (such as U.S.) give these more limited copyright protection. See, e.g. 17 U.S.C. §§ 102(a)(7), 106(1)-(3), 106(6).

Fixation Requirement U.S. law only protects fixed works. 17 U.S.C. § 102(a) Fixed when “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” See 17 U.S.C. § 101 Poland has a fixation (ustalony) requirement (art. 1), as does the U.K (s. 3 CDPA 1988)., but some systems (e.g. Switzerland, Sweden, Brazil do not) What kinds of things would be copyrightable without a fixation requirement?

Originality Requirement Most systems require some degree of originality Germany - see Re The Protection of Computer Programs (Bundesgerichtshof 1985) [C p. 418]: 1991 EC software directive a response to this UK requirement: a work must show “skill, judgment, and labour.” See Ladbroke v. William Hill [1964] 1 All ER 465, HL. U.S. : Feist Publications v. Rural Telephone Service (1991) [C p. 419]?

COPYRIGHTABILITY: ORIGINALITY REQUIREMENT Two aspects: (1) independent creation (2) at least some minimal degree of creativity See Feist, 499 U.S. 340 (1991) – Cp compilation

Feist: Justice O’Connor To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possesss some creative spark “no matter how crude, humble or obvious’ it might be.

U.S. Copyright Office Regulation provides that some works are not copyrightable, including : “Words and short phrases, such as names, titles, and slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering or coloring; mere listing of ingredients or contents.” – 37 C.F.R. § 202.1(a)

Another aspect of originality Idea-expression principle, known as “idea-expression dichotomy” in U.S. How did the Second Circuit state this principle in Computer Associates v. Altai (2d Cir. 1992)?

The “Idea/Expression Dichotomy” Copyright does not protect the idea or concept; it only protects the way in which an author has expressed an idea or concept. U.S. Copyright Act – see Section 102(b) Principle is universally acknowledged

Frau X v. Frau Y and Z Publishing House (Swiss Federal Court 1987) [C p. 415] How did the court draw the line between unprotectable fact and protectable expression?

Should copyright protection be granted to: Christo’s wrapping of the Pont Neuf Bridge? (TGI Paris – 1987)

Can “Dr. Nerd” Copyright a heretofore undiscovered and unpublished manuscript of a Shakespeare play that he found while exploring the stacks of Mullen Library?

Exact Copies Arthur, a forger, creates an exact reproduction of Rembrandt’s 1629 Self Portrait. Experts cannot distinguish Arthur’s copy from the original Is Arthur an “author” for the purposes of copyright?

Rights of the Copyright Owner 2 kinds: Economic Rights Moral Rights Civil law systems have stronger moral rights

Economic Rights: US (1) Right of reproduction (any work) (2) Right of adaption (any work) (3) Right of distribution (any work) (4) Right of public performance (literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works) (5) Right of public display (literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works) (6) Right of public performance of a digital audio transmission (sound recordings)

Economic Rights: Polish Art. 17. Unless otherwise provided in the law, the creator shall have the exclusive right to use the work and subject it to all forms of exploitation, and also the right to remuneration in exchange for the use of the work.

Moral Rights Poland (art. 16) No time limit; cannot be waived or transferred Right of paternity (to be an author of the work; sign it with author’s name) Integrity (to have the contents and form of work inviolable and property used) First publication Control the manner of using the work

Moral rights in the U.S. Far more limited than in civil law systems Limited moral rights (integrity, paternity) apply only to a limited group of works of visual art (VARA amendment to the Copyright Act, enacted as § 106A) Last for life of author. Can’t be transferred, but can be waived. Don’t apply to works made for hire. U.K. also has limited moral rights

Duration of Copyright Protection Statute of Anne: maximum term 28 years U.K – life of the author France 1791: life plus 5 How long does copyright protection last under U.S. law? (hint: hybrid system) Under Polish law? (art Act); lesser term for neighboring rights Most countries: life plus 50, but growing trend of life plus 70 term

Eldred v. Ashcroft (2003) Did the U.S. Supreme Court find that the CTEA of 1998 was unconstitutional? Why or why not? Was Justice Ginsburg right ? Is Justice Breyer’s opinion better?

Copyright Infringement Copyright infringement is any violation of the exclusive rights of the copyright owner, for example, making an unauthorized copy of a copyrighted book. Infringement does not necessarily constitute word-for-word reproduction; "substantial similarity" may also be infringement. Generally, copyright infringements are dealt with in civil lawsuits in federal court. However, copyright infringement may also (more rarely) be prosecuted as a criminal offence

Remedies for Civil Copyright Infringement in the U.S. Injunctions Damages (actual damages and profits – if not duplicative) May elect statutory damages in place of actual damages/profits - $750-$30,000 per infringement as the court consider just In event of willful infringement, court can raise up to $150,000. For innocent infringement, can reduce to no less than $200. Impounding/destruction of infringing articles and means to make them such as molds or masters.

Remedies for Civil Copyright Infringement in Poland: Economic Rights Plaintiffs, may demand: - ceasing the infringement -eliminating the consequences of infringement - rendering acquired benefits - payment of damages either calculated as normal or double the amount of the royalty payable at time of infringement (if, if infringer was at fault, triple this amount) (art. 79)

Remedies for moral rights violations in Poland (art. 78) Author can ask for actions threatening moral rights to be ceased (injunctive relief) and also request infringer to carry out actions to eliminate effects of their actions, including an appropriate public statement If infringement culpable, courts can award money damages to the author, which could be a payment toward a social charge chosen by the author. Spouses can bring moral rights violation. If no surviving spouse, action can be brought by descendents, parents, siblings and descendents of siblings, In that order.

Independent Creation - Copyright is “Soft” IP “...[I]f by some magic a man who had never known it were to compose anew Keats’ Ode On a Grecian Urn, he would be an “author,” and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats.” Sheldon v. MGM, 81 F.2d 49, 54 (2d Cir. 1936), aff’d, 309 U.S. 390 (1940)

Exceptions to copyright protection Most significant is known as “fair use” or, in the U.K., “fair dealing.” Why did Congress codify the common law fair use doctrine in the 1978 Copyright Act? See Harper & Row v. Nation (1985) [C p. 423]

Fair Use in U.S. law An exception to the rule of copyright infringement is the concept known as fair use, an affirmative defense Section 107: court weighs 4 factors to determine fair use: purpose & character of use (Commercial? Educational?), nature of work (Fact? Fiction?), amount used in proportion to work as a whole, effect on potential market for copyrighted work Reverse Engineering is treated as fair use by U.S. courts

Exceptions to copyright protection in Polish law Doesn’t have a general fair use defense, but many specific exceptions for, inter alia, certain news reporting, research and teaching, libraries and archives.. serve the same purposes Art. 23 “personal use defense”

Big Picture: U.S. Copyright L aw General and constant trend over 200 years of great expansion of copyrightable subject matter, rights of copyright owner, and duration of copyright term. This accelerated in 1990s. Trend to reduce formalities: copyright rights now arise on creation with no notice requirement Law evidences paternalistic concern for author and for author’s family. Underlying rationale of U.S. copyright law is largely utilitarian in contrast to civil law countries which are more rooted in a natural law tradition Moral rights in U.S. copyright law: very weak and only apply to certain works of visual art. See section 106A.

U.S. view of Polish copyright law Poland is on the USTR 2009 section 301 “watch” list (along with 32 other trading partners; 46 more are on the higher “priority” watch list