COPYRIGHT LAW 2002 CLASS 2 Columbus School of Law The Catholic University of America Professor Fischer Jan. 9, 2002

LAST CLASS What’s a copyright? Example of a copyright dispute Some history of copyright law starting with the Statute of Anne

WRAP-UP: Historical Trends 1. Progressive expansion of copyrightable subject matter 2. Progressive expansion of copyright duration 3. Growing U.S. participation in the international copyright system 4. Steadily reduced importance of formalities

TODAY’S CLASS A little more history Philosophy: Economic Analysis of Copyright Law Three important copyright law cases (Burrow-Giles, Bleistein, Catalda) If time, the difference between copyright and other forms of IP

HISTORY What is the Berne Convention? When did the United States ratify it?

HISTORY What is the Berne Convention? An international treaty which, as revised, provides for automatic protection for works published in Berne Union member countries (of which there are 133 members) When did the United States ratify it? October, Congress was required to amend the 1976 Act in ways we will study later.

Berne: Reducing Formalities Amendment of federal copyright law following U.S. ratification of the Berne Convention led to reduced formalities Examples: making copyright notice optional, not mandatory, removing registration as a prerequisite for suit (only applicable to foreign works)

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?

COPYRIGHT BENEFITS/BURDENS Who does copyright benefit? Who does copyright burden?

Economic Analysis of Copyright See excerpt from Mazer v. Stein at CB p. 17: Is this justified? Fundamental question: Is it necessary to give a monopoly to authors or are there other incentives to create? Alternatives to copyright protection? “Headstart” proposition - what is it and is it tenable?

Most Comprehensive Economic Analysis to Copyright Doctrine William M. Landes and Judge Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325 (199989) Explain how, according to Landes and Posner, the economics of copyright work Do Landes and Posner believe that copyright protection should be eliminated? Why or why not?

THREE IMPORTANT COPYRIGHT LAW CASES 1. Burrow-Giles Lithographic Society v. Sarony (1884) - CB p Bleistein v. Donaldson Lithographic Co. (1903) - CB p J. Alfred Bell & Co. v. Catalda (2d Cir. 1951) - CB p. 51

Burrow-Giles Lithographic Society v. Sarony (1884) Who was Napoleon Sarony, the plaintiff? What is lithography? What were the 2 important constitutional questions on which the Supreme Court had to rule in this case?

Some other Photos by Napoleon Sarony

Bleistein v. Donaldson Lithographing Co. (1903) Justice Oliver Wendell Holmes - an unsuccessful copyright plaintiff What was the issue that Holmes had to decide in this case? Is this decision consistent with the Patent and Copyright clause?

Alfred Bell & Co. v. Catalda (2d Cir. 1951) Who were the plaintiffs? What did they seek copyright protection for? Were the works copyrightable, according to Justice Frank? Do you agree? Why or why not?

ORIGINALITY REQUIREMENT Can we reconcile Bleistein, Catalda, and Burrow-Giles tests for originality? Remember: “Writings” of an “Author” in U.S. Constitution Article 1 section 8

DIFFERENCES BETWEEN COPYRIGHTS AND OTHER FORMS OF INTELLECTUAL PROPERTY Patent Law (e.g. Bell v. Catalda (2d Cir. 1951) -- CB p. 52 Trademark Laws (e.g. Frederick Warne v. Book Sales, Inc. (S.D.N.Y. 1979)) -- CB p. 65