1. Class 7 Copyright, Winter, 2010 Governmental Works Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago 773.702.0864/r-picker@uchicago.edu Copyright © 2005-10 Randal C. Picker. All Rights Reserved.

2. August 7, 2015Copyright © 2005-10 Randal C. Picker2 105. Subject matter of copyright: n United States Government works u 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.

3. 101 n A “work of the United States government” is u a work prepared by an officer or employee of the United States Government as part of that person’s official duties August 7, 2015Copyright © 2005-10 Randal C. Picker3

4. August 7, 2015Copyright © 2005-10 Randal C. Picker4 Read the Book n Hypo u Texas passes a statute stating that all 5 th graders should read “Harry Potter and the Sorcerer’s Stone” n Does this raise any copyright issues?

5. August 7, 2015Copyright © 2005-10 Randal C. Picker5 Answer n No

6. August 7, 2015Copyright © 2005-10 Randal C. Picker6 Sell the Book n Hypo u Texas faces a budget deficit u Texas passes a statute that provides that instead of raising taxes Texas will print copies of HP I and start selling it u It does so n Does this raise any copyright issues?

7. August 7, 2015Copyright © 2005-10 Randal C. Picker7 Answer n Texas infringes under 106(1) n See also 511(a) u Calls off sovereign immunity

8. August 7, 2015Copyright © 2005-10 Randal C. Picker8 J.K. Rowling Agrees with Texas n Hypo u JK Rowling announces that all Texas 5 th graders should read HP I u She suggests that they buy the book on Amazon n Can the State of Texas print copies of the book and distribute it to its 5 th grade students?

9. August 7, 2015Copyright © 2005-10 Randal C. Picker9 Answer n No u Silly to think that Rowling has expressly or impliedly licensed Texas to print the book

10. August 7, 2015Copyright © 2005-10 Randal C. Picker10 Donate the Book n Hypo u JK Rowling announces that all Texas 5 th graders should read HP I u She donates the copyright to Texas n Texas prints the book: any problems?

11. August 7, 2015Copyright © 2005-10 Randal C. Picker11 Answer n No u Just another transfer of copyright u Compare 105 again w … the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise …

12. August 7, 2015Copyright © 2005-10 Randal C. Picker12 Take the Book n Hypo u US government announces that it is a national emergency and everyone needs to read HP I u Gov’t uses power of eminent domain to take copyright from Rowling u Pays appropriate compensation and prints book n Copyright issues?

13. August 7, 2015Copyright © 2005-10 Randal C. Picker13 Answer n See 201(e) u (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.

14. August 7, 2015Copyright © 2005-10 Randal C. Picker14 Read the Book (and Here It Is) n Hypo u Texas passes a statute stating that all 5 th graders should read “Harry Potter and the Sorcerer’s Stone” u Section 2 of the statute sets forth the entire text of the book n Does this raise any copyright issues?

15. August 7, 2015Copyright © 2005-10 Randal C. Picker15 Answer n Yes u Should again be infringement under 106(1)

16. August 7, 2015Copyright © 2005-10 Randal C. Picker16 Judge’s Books n Hypo u Hypothetical 7 th Circuit judge writes many books and purports to retain the copyright to each book u Irving Infringer claims books are in public domain under Sec. 105 and prints copies n Who wins?

17. August 7, 2015Copyright © 2005-10 Randal C. Picker17 Answer n 7 th Cir Judge u Separate private role as author from paid role as civil servant

18. August 7, 2015Copyright © 2005-10 Randal C. Picker18 Law Prof’s New Book n Hypo u Texas law prof writes book “Statutes that the Texas Legislature Should Enact” u Retains copyright and indicates in the front- matter of the book: “All rights reserved.” u Texas passes a statute: “We hereby enact all of the laws in STTTLSE.” n Does this raise any copyright issues?

19. Answer n No u No copying of the work; just a reference to it August 7, 2015Copyright © 2005-10 Randal C. Picker19

20. August 7, 2015Copyright © 2005-10 Randal C. Picker20 Law Prof’s New Book n Hypo u Texas law prof writes book “Statutes that the Texas Legislature Should Enact” u Retains copyright and indicates in the front- matter of the book: “All rights reserved.” u Texas passes a statute setting forth the entire text of the book n Does this raise any copyright issues?

21. August 7, 2015Copyright © 2005-10 Randal C. Picker21 Veeck n Core Facts u SBCCI drafts model building codes u Codes are copyrighted u Veeck pays $72.00 to SBCCI for CDs with building codes u Licensing agreement and copyright notice bar copying and distribution

22. August 7, 2015Copyright © 2005-10 Randal C. Picker22 Veeck u Veeck posts on building codes of two Texas towns on his website u SBCCI asks him to stop u Veeck files declaratory judgment action

23. August 7, 2015Copyright © 2005-10 Randal C. Picker23 Understanding the Supreme Court Precedent n Wheaton v. Peters (1834) u Separated reporter’s work from judicial opinions u Latter not copyrightable, tracking assumption that statutes aren’t copyrightable

24. August 7, 2015Copyright © 2005-10 Randal C. Picker24 The Nature of the Text or the Author n Questions u Should we understand these to be decisions about the nature of law? u Or are these cases about federally-paid authors?

25. August 7, 2015Copyright © 2005-10 Randal C. Picker25 Consequences of Enactment n Law As Fact u Does gov’t enactment of SBCCI’s model law turn it into a fact? n Merger u Does gov’t enactment of SBCCI’s model law implicate the merger doctrine?

26. Consequences of Enactment n Taking? u When would a government enactment constitute a taking? With what consequences? August 7, 2015Copyright © 2005-10 Randal C. Picker26