COPYRIGHT LAW 2002 CLASS 2 The Catholic University of America Professor Fischer Jan. 8, 2002

WRAP-UP OF LAST CLASS Overview of course Introduction to copyright law Example of a copyright dispute Some history of copyright in England and early America – we learned that copyright is technology’s child; and that the first copyright laws were the engine of censorship and were designed to benefit publishers and Crown. Only with the Statute of Anne (1710) did the law gain the purpose of benefiting authorship and encouraging learning.

TODAY’S CLASS A little more history of American copyright law Introduction to the theoretical and underpinnings of copyright law – main question: what are the justifications for copyright law? Essential to resolve the main problem (theme) of this course: How best to define rights in creative expression in an era of rapid technological change?

Recent Copyright Law Development Are Peter Pan and other characters from J.M. Barrie’s works such as Captain Hook, Wendy, and Tinkerbell, protected by copyright? Preemptive suit brought by Canadian author Emily Somma in December 2002 in federal court in California Somma has written a new book, “After the Rain” in which Peter Pan grows up

A Series of Federal Copyright Statutes Pursuant to Art. I s. 8 cl. 8 of the U.S. Constitution, starting in 1790, Congress has passed a series of copyright acts. Copyright Act of 1909 (see outline at CB pp ) Copyright Act of 1976 (outline at CB pp ). Amended many times. Many amendments to the Copyright Act of 1976, e.g. Architectural Works Copyright Protection Act (1990), Digital Millennium Copyright Act (1998) etc. (see pp for some of the most important)

Historical Trend: Expanding Copyrightable Subject Matter in Federal Copyright Statutes 1790 Act protected only books, maps and charts Copyrightable subject matter has moved way beyond this to e.g. prints (1802), musical compositions (1831), photographs (1865), motion pictures (1912), sound recordings (1971), architectural works (1990) etc. Unit II – considers the question: what is copyrightable under current copyright law?

Another trend: expansion in copyright duration What was copyright term in Statute of Anne? What about under 1790 federal copyright statute? Under 1909 Act? Under current law as of January 2003? (nb. Under review by Supreme Court in case of Eldred v. Ashcroft) We will study duration in Unit IV

Another historical trend: reduced importance of formalities © 1790 statute required compliance with certain formalities as a condition of copyright protection (notice, publication, registration, deposit) Under current law, failure to comply with formalities no longer results in loss of copyright protection BUT formalities remain important. We will study them in Unit IV

Scope of Federal Copyright Law: Wheaton v. Peters (1834) Dispute between Henry Wheaton and Richard Peters, rival law reporters What was the issue that the U.S. Supreme Court had to decide? Why was it a significant issue?

Wheaton v. Peters Dispute between the official reporter of U.S. Supreme Court decisions, Richard Peters, and the previous reporter, Henry Wheaton. Peters began publishing "Condensed Reports" of cases decided during Wheaton's tenure and Wheaton sued. The case went before the U.S. Supreme Court. Peters argued that Wheaton had failed to comply with required formalities. Wheaton contended that there authors were entitled to perpetual common law property rights in their works.

Wheaton v. Peters Majority opinion written by Justice John McLean How did he rule on the existence of perpetual common law copyright? Rejects that common law copyright exists in PUBLISHED works Still existed in UNPUBLISHED works until 1976 Act.

Majority decision of Justice McLean “[S]ince the statute of 8 Anne, the literary property of an author in his works can only be asserted under the statute.... That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world."

What Are the Major Theoretical Underpinnings for Copyright Law? Which of these theories constitute the theoretical underpinning for U.S. copyright law?

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

Authors Natural Rights Influential in continental European civil law systems which have extensive moral rights protection for authors (see the work of Professor Jane Ginsburg) Is natural rights theory a theoretical underpinning of U.S. copyright law? Yes, but primarily on the basis of Lockean labor theory (see the work of English philosopher John Locke)

Liberal Democratic Theory Describe the copyright model set out in the work of Professor Neil Netanel Netanel believes the copyright is designed to support civil democratic society – and its purpose is similar to that of the First Amendment. He views copyright as having a PRODUCTION function and a STRUCTURAL function

A Robust Public Domain Works free from copyright (due to expiration of copyright term or works created prior to enactment of copyright statutes) Works that are unprotectable under copyright statutes – IDEA/EXPRESSION DICHOTOMY

The Public Goods Problem Utilitarian Incentive Theory seeks to overcome the public goods problem Is creating more works always a good thing? What does “progress” mean in Art. I s. 8 c. 8? - (which states – “The Congress shall have 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”). (see CB p. 3) See the work of William Alford and Ruth Gana Okediji

Different Ways to Solve the Public Goods Problem Copyright law Other protections for authors (like those suggested by Professor Hardy in his article: Property (and Copyright) in Cyberspace, 1996 U. Chi. Legal. F. 217 (1996) – CB p. 8

Professor Hardy’s Pie

Copying Limitations based on entitlement-like Protection Limitations based on contractual agreement Limitations based on the state of the copying art Limitations founded on technological protections Cohen adds- limitations based on entitlements belonging to the public How Does Professor Cohen’s Taxonomy Differ from Hardy’s?