COPYRIGHT LAW SPRING 2003: CLASS 3 Professor Fischer International Treaties and Institutions; Fixation January 13, 2003

Wrap-up: 4 Major Theoretical Underpinnings for Copyright Law (Utilitarian) Incentive Theory (Natural Law) Author’s Rights (Liberal Democratic Theory) Uncensored Marketplace of Ideas Robust Public Domain

TO THINK ABOUT: COPYRIGHT METAPHYSICS What is the purpose of copyright? Is copyright a user’s right? Or is copyright an author’s right? Is copyright properly described as a monopoly? Is copyright a property right?

TO THINK ABOUT: COPYRIGHT BENEFITS/BURDENS Who does copyright benefit? Who does copyright burden? (see work of

Copyright Law Constantly Confronts Technological Change For production of copyrighted works For distribution of copyrighted works For access of copyrighted works Can you think of some examples of technological developments in these areas from the 19 th – 21 st centuries? We will study how the law has responded to these changes. You should consider whether these legal changes have been wise.

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

Today’s Class International Begin to study unit on what subject matter is copyrightable by learning about fixation requirement. We will learn about the broadly technology-neutral language of the fixation requirements, as well as two examples of more specific drafting to solve problems caused by the broad language.

International Treaties and Institutions U.S., once a pirate nation, was initially reluctant to sign onto the main multilateral copyright agreement, the Berne Convention (originally entered into in 1886). U.S. did not join until late 1980s when international protection of IP rights became a high priority due to export growth. Since that time, U.S. has pressed for IP protection as a trade issue. In 1994, the Agreement on Trade Related Aspects of Intellectual Property Rights, was concluded as part of the Uruguay Round of GATT trade negotiations. States that want to join WTO must accept TRIPS. USTR can target violations of US IP rights

Enforcement Berne lacked “enforcement” teeth TRIPS requires members to incorporate certain enforcement mechanisms into national law, and also has provisions for dispute settlement which can ultimately result in trade sanctions U.S. has been a defendant in some WTO copyright disputes. WTO panel ruled that section 110(5)(B) violates Art. 13 of TRIPS. US has not yet amended its law.

Two New Important WIPO Copyright Treaties WIPO Copyright Treaty – ratified by US who passed implementing legislation (DMCA in 1998); treaty came into force in March 6, 2002 WIPO Performances and Phonograms Treaty (also ratified by US which has passed implementing legislation). Entered into force on May 20, Both lack enforcement mechanisms. Will they be incorporated into TRIPS Agreement?

Neither Berne nor TRIPS is self- executing Thus, U.S. law has had to be amended to comply with these international treaties

UNIT I: COPYRIGHTABLE SUBJECT MATTER What is a “Writing” under Art. I s. 8 cl. 8 that Congress can protect? Are there any helpful limits in Art. I s. 8 cl. 8? Does our current Copyright Act define “writing”?

§102: Subject Matter of Copyright: In general (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expresssion, 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.

Idea-Expression Dichotomy (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.

3 statutory requirements for copyright protection 1. Fixation 2. Originality (Wednesday’s class) 3. Not an idea, procedure, process, system, method of operation, concept, principle, or discovery

FIXATION REQUIREMENT See 17 U.S.C. § 102(a): Copyright protection subsists... In original works of authorship 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.” What other provision(s) sets out the fixation requirement?

FIXATION REQUIREMENT See also 17 U.S.C. § 101: “A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission”

FIXATION How do I describe our casebook in copyright law language? What about a George Harrison CD? What about a DVD of “Snow Dogs”?

2 CATEGORIES OF MATERIAL OBJECTS IN WHICH WORKS CAN BE FIXED COPIES (see definition in s. 101) PHONORECORDS (see definition in s. 101)

COPIES 17 U.S.C. § 101: “Copies” are material objects, other than phonorecords, in which a work is fixed, by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

PHONORECORDS 17 U.S.C. § 101: “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

FIXATION How do I describe our casebook in copyright law language? What about a George Harrison CD? What about a DVD of “Snow Dogs”?

1976 Act: Broad Technology- Neutral Language Old law: medium specific approach to fixation Response to 1908 White- Smith case : held piano roll not an infringing copy of a musical work because it was not perceptible to a human reader (overruled by statutory provision for compulsory mechanical license in 1909, but 1909 Act retained White-Smith medium specific approach to determine copyrightability)

Flexibility of Modern Fixation Requirement: Williams v. Arctic (3d Cir. 1982)

Another example of flexibility of modern fixation requirement: MAI Systems Corp. v. Peak (9 th Cir. 1993) MAI owned copyright in certain OS software that was necessary to run any program on MAI computers Peak services MAI computers. Eric Francis left MAI for Peak and some businesses that used MAI to service their computers switched to Peak as a result. MAI alleged that Peak infringed MAI’s copyright by running MAI OS software licensed to Peak customers. Peak disputed that there was any “copying” because “copy” of the MAI OS system was in RAM and was not “sufficiently permanent or stable” to be fixed.

MAI Systems Corp. v. Peak (9 th Cir. 1993) Did the 9 th Circuit find the copy created in the RAM was fixed? Congress amended §117 after MAI v. Peak

Purpose of Fixation Your book points out that the Berne Convention allows member countries to decide whether or not to require fixation. (Art. 2(2)). Why does the U.S. require fixation for copyright protection?

SPORTING AND OTHER EVENTS Is the tennis match between Jennifer Capriati and Marlene Weingartner at the Australian Open on January 13 a fixed work? How about the Macys Thanksgiving Day parade? A video of the Macy’s Thanksgiving Day parade?

FIXATION OF BROADCASTS Is a live broadcast of the Venus Williams-Monica Seles match fixed? Note that a work is not “fixed” unless its embodiment in tangible form is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Aren’t the images broadcast ephemeral and hence not fixed?

Definition of Fixation- Technology Specific Exception for Broadcasts 17 U.S.C. § 101: A work consisting of sounds, images, or both that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. Common practice for radio and tv broadcasts to simultaneously record live broadcasts - so this statutory extension of the concept of fixation seems to effectively protect virtually all such broadcasts. Is this constitutional?

FIXATION OF BROADCASTS See 17 U.S.C. § 101 “transmit”: To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.”

FIXATION OF BROADCASTS See 17 U.S.C. § 101: A “device”, “machine,” or “process” is one now known or later developed.

Bootleg Recordings Ed goes to a Grateful Dead concert in He brings a tape recorder and makes a recording of the performance of Lazy Lightnin’ (written by John Perry Barlow/BobWeir) Does this infringe copyright in the musical composition? The live performance? Would it make any difference if the Grateful Dead were recording their performance? What if Ed did this in 2002?