1. The University of Chicago
9/21/2018
Class 6 Copyright, Autumn, Governmental Works and the Public Domain
Randal C. Picker
James Parker Hall Distinguished Service Professor of Law
Ludwig & Hilde Wolf Teaching Scholar
The Law School
The University of Chicago

2. The Scarlet Letter (Hawthorne 1850)
September 21, 2018

3. The Scarlet Letter (Hawthorne 1850)
September 21, 2018

4. The Scarlet Letter (Hawthorne 1850)
September 21, 2018

5. Copyright © 2013 Randal C. Picker
September 21, 2018
Copyright © 2013 Randal C. Picker
Lewis Carroll, 1869 ed.

6. Copyright © 2013 Randal C. Picker
September 21, 2018
Copyright © 2013 Randal C. Picker
Lewis Carroll, 1869 ed.

7. Copyright © 2013 Randal C. Picker
“This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project to make the world’s books discoverable online.”
September 21, 2018
Copyright © 2013 Randal C. Picker

8. Copyright © 2013 Randal C. Picker
“… A public domain book is one that was never subject to copyright or whose legal copyright term has expired. … Public domain books are our gateways to the past, representing a wealth of history, culture and knowledge that’s often difficult to discover.”
September 21, 2018
Copyright © 2013 Randal C. Picker

9. Copyright © 2013 Randal C. Picker
“Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the public and we are merely their custodians.”
“Nevertheless, …
September 21, 2018
Copyright © 2013 Randal C. Picker

10. Copyright © 2013 Randal C. Picker
“Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to prevent abuse by commercial parties, including placing technical restrictions on automated querying.”
September 21, 2018
Copyright © 2013 Randal C. Picker

11. Copyright © 2013 Randal C. Picker
“We also ask that you:
+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for personal, non-commercial purposes. …”
September 21, 2018
Copyright © 2013 Randal C. Picker

12. Copyright © 2013 Randal C. Picker
“We also ask that you:
+ Refrain from automated querying Do not send automated queries of any sort to Google’s system: If you are conducting research on machine translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the use of public domain materials for these purposes and may be able to help.…”
September 21, 2018
Copyright © 2013 Randal C. Picker

13. Copyright © 2013 Randal C. Picker
“+ Maintain attribution The Google “watermark” you see on each file is essential for informing people about this project and helping them find additional materials through Google Book Search. Please do not remove it.”
September 21, 2018
Copyright © 2013 Randal C. Picker

14. September 21, 2018
The Brothers Grimm

15. September 21, 2018
The Brothers Grimm

16. September 21, 2018
The Brothers Grimm

17. September 21, 2018
The Brothers Grimm

18. September 21, 2018
Box Office Mojo

19. September 21, 2018
Lucas Rough Draft?

20. What is in the Public Domain?
Complicated but …
Published works before 1923
Non-fiction post 1922?
Ideas/facts but not expression
Fiction post 1922
Much more limited (all subject to fair use)
September 21, 2018

21. 105. Subject matter of copyright
9/21/2018
105. Subject matter of copyright
United States Government works
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
September 21, 2018

22. 101 A “work of the United States government” is
9/21/2018
101
A “work of the United States government” is
a work prepared by an officer or employee of the United States Government as part of that person’s official duties
September 21, 2018

23. The New U.S. Public Domain
Visiting the Supreme Court
Visiting Congress
September 21, 2018

24. September 21, 2018

25. September 21, 2018

26. September 21, 2018

27. September 21, 2018

28. 1990 Copyright Remedy Clarification Act
September 21, 2018

29. CRCA Legislative History
September 21, 2018

30. CRCA Legislative History
September 21, 2018

31. CRCA Legislative History
September 21, 2018

32. Situating States in U.S. Copyright
Section 501(a):
(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.
September 21, 2018

33. Situating States in U.S. Copyright
Section 501(a):
… As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity.
September 21, 2018

34. Situating States in U.S. Copyright
Section 501(a):
Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.
September 21, 2018

35. Situating States in U.S. Copyright
Sec. 511(a):
Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in
September 21, 2018

36. Situating States in U.S. Copyright
Sec. 511(a):
Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.
September 21, 2018

37. Situating States in U.S. Copyright
But …
Status of CRCA pretty uncertain, see, e.g., National Ass’n of Boards of Pharmacy v. Board of Regents of the University System of Georgia, 633 F.3d 1297 (11th Cir. 2011)
Campinha-Bacote d/b/a Transcultural C.A.R.E. Associates v. Regents of the University of Michigan (S.D. Oh. 2016)
September 21, 2018

38. September 21, 2018

39. Read the Book Hypo Does this raise any copyright issues?
9/21/2018
Read the Book
Hypo
Texas passes a statute stating that all 5th graders should read “Harry Potter and the Sorcerer’s Stone”
Does this raise any copyright issues?
September 21, 2018

40. 9/21/2018
Answer No
September 21, 2018

41. Sell the Book Hypo Does this raise any copyright issues?
9/21/2018
Sell the Book
Hypo
Texas faces a budget deficit
Texas passes a statute that provides that instead of raising taxes Texas will print copies of HP I and start selling it
It does so
Does this raise any copyright issues?
September 21, 2018

42. Answer Texas infringes under 106(1) See also 511(a)
9/21/2018
Answer
Texas infringes under 106(1)
See also 511(a)
Calls off sovereign immunity
September 21, 2018

43. J.K. Rowling Agrees with Texas
9/21/2018
J.K. Rowling Agrees with Texas
Hypo
JK Rowling announces that all Texas 5th graders should read HP I
She suggests that they buy the book on Amazon
Can the State of Texas print copies of the book and distribute it to its 5th grade students?
September 21, 2018

44. 9/21/2018
Answer No
Silly to think that Rowling has expressly or impliedly licensed Texas to print the book
September 21, 2018

45. Donate the Book Hypo Texas prints the book: any problems?
9/21/2018
Donate the Book
Hypo
JK Rowling announces that all Texas 5th graders should read HP I
She donates the copyright to Texas
Texas prints the book: any problems?
September 21, 2018

46. Answer No Standard transfer of copyright Compare 105 again
9/21/2018
Answer No
Standard transfer of copyright
Compare 105 again
… the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise …
September 21, 2018

47. Take the Book Hypo Copyright issues?
9/21/2018
Take the Book
Hypo
US government announces that it is a national emergency and everyone needs to read HP I
Gov’t uses power of eminent domain to take copyright from Rowling
Pays appropriate compensation and prints book
Copyright issues?
September 21, 2018

48. 9/21/2018
Answer
See 201(e)
(e) Involuntary Transfer.‑‑When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.
September 21, 2018

49. 1976 Copyright Act Legislative History
September 21, 2018

50. 1976 Copyright Act Legislative History
September 21, 2018

51. 1976 Copyright Act Legislative History
September 21, 2018

52. Read the Book (and Here It Is)
9/21/2018
Read the Book (and Here It Is)
Hypo
Texas passes a statute stating that all 5th graders should read “Harry Potter and the Sorcerer’s Stone”
Section 2 of the statute sets forth the entire text of the book
Does this raise any copyright issues?
September 21, 2018

53. Answer Yes Should again be infringement under 106(1)
9/21/2018
Answer
Yes
Should again be infringement under 106(1)
September 21, 2018

54. Law Prof’s New Book Hypo Does this raise any copyright issues?
9/21/2018
Law Prof’s New Book
Hypo
Texas law prof writes book “Statutes that the Texas Legislature Should Enact”
Retains copyright and indicates in the front-matter of the book: “All rights reserved.”
Texas passes a statute: “We hereby enact all of the laws in STTTLSE.”
Does this raise any copyright issues?
September 21, 2018

55. Answer No No copying of the work; just a reference to it
9/21/2018
Answer No
No copying of the work; just a reference to it
September 21, 2018

56. Law Prof’s New Book Hypo Does this raise any copyright issues?
9/21/2018
Law Prof’s New Book
Hypo
Texas law prof writes book “Statutes that the Texas Legislature Should Enact”
Retains copyright and indicates in the front-matter of the book: “All rights reserved.”
Texas passes a statute setting forth the entire text of the book
Does this raise any copyright issues?
September 21, 2018

57. Veeck Core Facts SBCCI drafts model building codes
9/21/2018
Veeck
Core Facts
SBCCI drafts model building codes
Codes are copyrighted
Veeck pays $72.00 to SBCCI for CDs with building codes
Licensing agreement and copyright notice bar copying and distribution
September 21, 2018

58. Veeck Veeck posts on building codes of two Texas towns on his website
9/21/2018
Veeck
Veeck posts on building codes of two Texas towns on his website
SBCCI asks him to stop
Veeck files declaratory judgment action
September 21, 2018

59. Understanding the Supreme Court Precedent
9/21/2018
Understanding the Supreme Court Precedent
Wheaton v. Peters (1834)
Separated reporter’s work from judicial opinions
Latter not copyrightable, tracking assumption that statutes aren’t copyrightable
September 21, 2018

60. The Nature of the Text or the Author
9/21/2018
The Nature of the Text or the Author
Questions
Should we understand these to be decisions about the nature of law?
Or are these cases about federally-paid authors?
September 21, 2018

61. Consequences of Enactment
9/21/2018
Consequences of Enactment
Law As Fact
Does gov’t enactment of SBCCI’s model law turn it into a fact?
Merger
Does gov’t enactment of SBCCI’s model law implicate the merger doctrine?
September 21, 2018

62. Consequences of Enactment
9/21/2018
Consequences of Enactment
Taking?
When would a government enactment constitute a taking? With what consequences?
September 21, 2018