Class 25 Copyright, Winter, 2010 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.

New Sup Ct Case n Reed Elsevier, Inc. v. Muchnick (U.S., March 2, 2010) n The Issue u ml#411 ml#411 n The Result: Not Jurisdictional (8-0) u pdf/ pdf pdf/ pdf January 27, 2016Copyright © 2010 Randal C. Picker2

January 27, 2016Copyright © Randal C. Picker3 Creating a Poem I n Hypo u In my office, on paper, word by word, I create a poem u I stop writing and declare my poem completed n Do I have a copyright in the poem?

January 27, 2016Copyright © Randal C. Picker4 Answer n Answer u Sure u 102(a): Copyright protection subsists, in accordance with this title, 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.

January 27, 2016Copyright © Randal C. Picker5 Creating a Poem II n Hypo u In my office, speaking into a tape recorder, word by word, I create a poem u I stop dictating and declare my poem completed n Do I have a copyright in the poem? Is the tape recording a distinct copyright object?

January 27, 2016Copyright © Randal C. Picker6 Answer n As to the poem, sure n 102(a) embraces a media neutrality idea u The poem is fixed on the taped and can be perceived from the tape with the aid of a machine or device

January 27, 2016Copyright © Randal C. Picker7 Answer n Understanding Fixation u The poem is no less “fixed”—fully specified and defined—on tape than it was on paper u The fact that it didn’t exist before I started to dictate doesn’t matter; that was true of the paper as well

January 27, 2016Copyright © Randal C. Picker8 Answer n See Legislative History u “This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1 (1908), under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed. Under the bill it makes no difference what the form, manner, or medium of fixation may be—whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device ‘now known or later developed.’”

January 27, 2016Copyright © Randal C. Picker9 Answer n As to the sound recording u Statute treats that as separate copyright object w “Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds u Author of sound recording will be person running tape recorder u But poem continues to exist as separate literary work, just as it did when it was “recorded” on paper

January 27, 2016Copyright © Randal C. Picker10 Answer n As to the sound recording u While sound recording is a separate copyright object with, perhaps, a different author, the sound recording as work will be either a copy of the underlying work—the poem—or a derivative work of that poem

January 27, 2016Copyright © Randal C. Picker11 Creating a Poem III n Hypo u In my office, speaking into a tape recorder, word by word, I create a poem u I stop dictating and declare my poem completed n I discover then that I failed to turn on the tape recorder n Do I have a copyright in the poem?

January 27, 2016Copyright © Randal C. Picker12 Answer n Answer u No; the poem isn’t fixed in a TME u The poem is an unfixed work subject to regulation under state law under 301(b)(1)

Creating a Poem IV n Hypo u I write a poem on paper in my office as before u I memorize it u I recite it at a poetry slam u A member of the audience writes it down as I recite it in public n Has she violated my copyright in the poem? January 27, 2016Copyright © 2010 Randal C. Picker13

Answer n Answer u Yes u The poem as a copyrighted work exists when I write it down u She has access to the work through my recitation; there is no requirement that she have access to the fixation of the work itself u She copies the work without access to the fixation January 27, 2016Copyright © 2010 Randal C. Picker14

January 27, 2016Copyright © Randal C. Picker15 Creating a Poem V n Hypo u In public, word by word, I create a poem out loud u I set up a tape recorder to capture my recitation n Do I have a copyright in the poem?

January 27, 2016Copyright © Randal C. Picker16 Answer n Answer u Same creation and fixation process as occurs in my office when the recorder is on u No difference in result, so I should have a copyright in the poem

January 27, 2016Copyright © Randal C. Picker17 Answer n Two Angles to Pursue u Unlike creation on paper, someone else can record the work at the same time that I am recording the work u Where does that put us if w I also record it? w I don’t record it?

January 27, 2016Copyright © Randal C. Picker18 Creating a Poem VI n Hypo u In public, word by word, I create a poem out loud u I set up a tape recorder to capture my recitation u Everyone else in the audience records it too n Do I have a copyright in the poem? What about each recording of the poem?

January 27, 2016Copyright © Randal C. Picker19 Answer n As to poem u Copyright analysis of poem shouldn’t change n As to poem author’s sound recording u No change in analysis

January 27, 2016Copyright © Randal C. Picker20 Answer n As to other sound recordings u Each of those is separate work as sound recording and tape recorder owner will be the author u But … w Had the poem already been fixed before being recited, each person with a recorder would be using the recorder to reproduce a copyrighted work

January 27, 2016Copyright © Randal C. Picker21 Answer w That would violate copyright under 106, unless carved out as fair use under 107 pursuant to something like Sony

January 27, 2016Copyright © Randal C. Picker22 Answer u When is the poem fixed? At the end? Word by word? w If at the end, the audience didn’t copy a (federally) copyrighted work and therefore didn’t impermissibly reproduce under federal law But as work (the poem as literary work) is fixed no later than the end, I can’t make further copies, distribute etc. Reflects notion that access to physical instantiation of the work doesn’t give me the rights of the copyright holder (202) And also see 1101

January 27, 2016Copyright © Randal C. Picker23 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.

January 27, 2016Copyright © Randal C. Picker24 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.

January 27, 2016Copyright © Randal C. Picker25 Answer n What if the poem’s author didn’t record it? u Unfixed work subject to state law u Federal law (106) does nothing for author u What can audience member do with sound recording made by him? See 1101

January 27, 2016Copyright © 2010 Randal C. Picker26 [SC: TRIPS] Link

January 27, 2016Copyright © 2010 Randal C. Picker27 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.

January 27, 2016Copyright © 2010 Randal C. Picker28 U.S. Implementation of TRIPS n Pub. L , December 8, 1994 n Implements Art. 14(1) of TRIPs regarding unfixed musical performacnes n Section 512 u New Section 1101 of the Copyright Act n Section 513 u New criminal violations in 18 USC 2319A

January 27, 2016Copyright © 2010 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,

January 27, 2016Copyright © 2010 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,

January 27, 2016Copyright © 2010 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.

January 27, 2016Copyright © 2010 Randal C. Picker32 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;

January 27, 2016Copyright © 2010 Randal C. Picker33 18 U.S.C. § 2319A (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? January 27, 2016Copyright © 2010 Randal C. Picker34

Golan v. Gonzales: Policing the Public Domain n Start with u Berne Convention Article 18 w cs_wo001.html cs_wo001.html n Turn to u Berne Convention Implementation Act of 1988 (Esp Sec. 12) w January 27, 2016Copyright © 2010 Randal C. Picker35

Restored Works and the Public Domain n 104A: Copyright in Restored Works u ml#104a ml#104a January 27, 2016Copyright © 2010 Randal C. Picker36

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. January 27, 2016Copyright © 2010 Randal C. Picker37

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. January 27, 2016Copyright © 2010 Randal C. Picker38

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. January 27, 2016Copyright © 2010 Randal C. Picker39

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? n On remand: Golan v. Holder (here)here January 27, 2016Copyright © 2010 Randal C. Picker40