Class 22 Copyright, Spring, 2008 Copyright and the Constitution Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago Copyright © Randal C. Picker. All Rights Reserved.

May 27, 2016Copyright © 2005 Randal C. Picker2 Making Music I n Hypo u Law School Band plays improvised jazz at concert n Does LSB have a copyright in the music?

May 27, 2016Copyright © 2005 Randal C. Picker3 Answer n No u No fixation, no copyright

May 27, 2016Copyright © 2005 Randal C. Picker4 Making Music II n Hypo u Law School Band plays improvised jazz at concert u LSB sets up tape recorder, which records music n Does LSB have a copyright in the music? What is the tape with the music on it?

May 27, 2016Copyright © 2005 Randal C. Picker5 Answer n Q1: Yes u Recording creates fixation n Q2: Phonorecords Under 101 u ‘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 … The term ‘phonorecords’ includes the material object in which the sounds are first fixed.”

May 27, 2016Copyright © 2005 Randal C. Picker6 Three Situations n Hypo 1 u The band plays and records; you don’t record n Hypo 2 u The band plays and records; you record at the same time

May 27, 2016Copyright © 2005 Randal C. Picker7 Three Situations n Hypo 3 u The band plays and doesn’t record but you record

May 27, 2016Copyright © 2005 Randal C. Picker8 Answers n H1: No Copyright Issues u Recording is phonorecord; the performance of the music (the work) is fixed in the recording, creating the copyright; the band controls the copyright of the work

May 27, 2016Copyright © 2005 Randal C. Picker9 Answers n H2: How Do We Deal with Simultaneous Fixation? u Note that the rights under Sec. 106 are keyed to the existence of a copyrighted work u Don’t have copyrighted work at the time that you record

May 27, 2016Copyright © 2005 Randal C. Picker10 Answers n Statutory Guidance on This? u Consider last sentence of definition of “fixation” w 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.

May 27, 2016Copyright © 2005 Randal C. Picker11 Answers u And the definition of “transmit” w 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.

May 27, 2016Copyright © 2005 Randal C. Picker12 Simultaneous Fixation and Creation of the Work n Understanding the Definitions u Copyright Act has limited mechanism for dealing with this simultaneity problem u Requires transmission to get fixation occurring simultaneously with creation of work

May 27, 2016Copyright © 2005 Randal C. Picker13 Simultaneous Fixation and Creation of the Work n If band is transmitting and recording, they have fixation and a protected copyrighted work u That makes even your single copy infringing n And if the band records and doesn’t transmit?

May 27, 2016Copyright © 2005 Randal C. Picker14 If Not n If recording but not transmitting: u At end of concert, band has a copyrighted work and protections of 106 kick in for that work n Does the possession/existence of your one unauthorized recording violate 106(1)? u No copyrighted work existed at time of recording, so no

May 27, 2016Copyright © 2005 Randal C. Picker15 If Not n What can you do with the unauthorized recording? u Can you copy it? u Can you copy it and sell the copies? u Can you sell your copy?

May 27, 2016Copyright © 2005 Randal C. Picker16 Answers n Copyrighted Work Exists u Because of band’s recording, a copyrighted work exists u Your access to an embodiment of that work—your recording—doesn’t transfer the copyright to you (recall 204(a))

May 27, 2016Copyright © 2005 Randal C. Picker17 Answers n Consequences u Your copy isn’t infringing (no transmission) u But you can’t copy it (doing so would violate 106(1)) u You probably can sell your copy (depends on how we understand distribute under 106(3), and query whether 109 applies here)

May 27, 2016Copyright © 2005 Randal C. Picker18 Answers n H3 u Band didn’t record, so no copyright u Your recording wasn’t authorized, so not a fixation of the work; you don’t have a copyright either u What is the recording?

May 27, 2016Copyright © 2005 Randal C. Picker19 Unauthorized Fixation n Does the Unauthorized Fixation of a Work Create a Copy or a Phonorecord? u Your recorded object in H3 exists outside of the copyright system w Not a copy or phonorecord as both of those are tied to the existence of an authorized fixation n What should we do?

May 27, 2016Copyright © 2005 Randal C. Picker20 [SC: TRIPS]

May 27, 2016Copyright © 2005 Randal C. Picker21 Part II, Section I: Copyright and Related Rights: Art In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.

May 27, 2016Copyright © 2005 Randal C. Picker22 U.S. Implementation of TRIPS n Pub. L , December 8, 1994 n Implements Art. 14(1) of TRIPs regarding unfixed musical peformacnes n Section 512 u New Section 1101 of the Copyright Act n Section 513 u New criminal violations in 18 USC 2319A

May 27, 2016Copyright © 2005 Randal C. Picker : Unauthorized fixation and trafficking in sound recordings and music videos n (a) Unauthorized Acts. ‑‑ Anyone who, without the consent of the performer or performers involved ‑‑ u (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,

May 27, 2016Copyright © 2005 Randal C. Picker (Cont.) u (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or u (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States,

May 27, 2016Copyright © 2005 Randal C. Picker (Cont.) n shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.

May 27, 2016Copyright © 2005 Randal C. Picker26 18 U.S.C. § 2319A n (a) Offense. u Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain— w (1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation;

May 27, 2016Copyright © 2005 Randal C. Picker27 Cont. w (2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance; or w (3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States; shall be imprisoned for not more than 5 years or fined in the amount set forth in this title, or both...

Situating Martignon n How should we think about 1101 and 2319A? u Are they copyright statutes? u Something else? u What turns on that? May 27, 2016Copyright © Randal C. Picker28

Golan v. Gonzales: Policing the Public Domain n Start with u Berne Convention Article 18 w n Turn to u Berne Convention Implementation Act of 1988 (Esp Sec. 12) w May 27, 2016Copyright © Randal C. Picker29

104A Legislative History n Senate Report u The legislation includes language to restore copyright protection to certain foreign works from countries that are members of the Berne Convention or WTO that have fallen into the public domain for reasons other than the normal expiration of their term of protection. May 27, 2016Copyright © Randal C. Picker30

104A Legislative History u The Agreement requires WTO countries to comply with Article 18 of the Berne Convention. While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention. Article 18 requires that the terms of the convention apply to all works that have fallen into the public domain by reasons other than the expiration of its term of protection. May 27, 2016Copyright © Randal C. Picker31

104A Legislative History u (Examples include failure to file a timely renewal application and failure to affix a copyright notice). u The bill would automatically restore copyright protection for qualifying works of authors from Berne or WTO countries one year after the WTO comes into being. May 27, 2016Copyright © Randal C. Picker32

Restored Works and the Public Domain n 104A: Copyright in Restored Works u ml#104a ml#104a May 27, 2016Copyright © Randal C. Picker33

Restored Works and the Constitution n 104A u Consistent with the Copyright Clause? u The Commerce Clause? u The First Amendment? u The Treaty Clause? May 27, 2016Copyright © Randal C. Picker34