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A. You might wonder at the outset why society needs copyright laws at all
D. We didn’t see copyright hundreds of years ago because copying was very
difficult
3. The history of copyright law can be seen as a legal response to ever more
effective copying technologies.
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6. The present statute defines copies as: Material objects in which a work is
fixed and from which the work can be perceived, reproduced, or
communicated either directly or with the aid of a machine.
8. Finally, note that copyright protection attaches the minute the work is
fixed.
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2. Not copied
3. Minimally Creative
A. Protection extends only to literal expression and not to underlying ideas of the
work.
B. The principle dates back at least as far as the 19th century case of Baker v. Selden.
C. Closely related to the “no protection for ideas” rule is the Merger Doctrine.
1. If there is only one way to express an idea, the idea and the expression
merge.
2. Protecting such expression would prevent others from using the idea.
D. Determining which parts of a work are protected expression and which parts
are unprotected ideas is quite different.
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B. Literary Works
5. Computer software
3. If the work overall is a “useful article” there can only be protection for
design features if they can be identified separately from and can exist
independently of the utilitarian aspects.
4. With recorded music note that there are two separate copyrightable
works:
E. Compilations
F. Derivative Works
1. These are works based on an earlier work that transform it in some way.
V. Ownership
C. Multiple authors
b. Second, the parties must each have the requisite intent at the
time
1. The hiring party, rather than the actual author, is the owner of the
copyright IF the work is a work for hire.
2. It is a work for hire if the author was an employee acting within the
scope of his or her employment, determined under the law of agency.
iii. translation;
v. compilation;
vii. test;
ix. an atlas
A. Copyright lasts for the life of the author, plus 70 years after death.
B. For joint work, copyright lasts for the life + 70 years of the last surviving author.
C. Special duration rules for works for hire and for anonymous works: copyright
lasts 95 years from publication or 120 years from creation, whichever comes
first.
D. These rules only apply to works created after 1/1/1978. For older works, look
to the 1909 Act.
3. On publication, you got 28-year term, plus 28-year renewal for a total of
56 years.
4. Renewal was not automatic – you had to apply for it, and, if you didn’t,
your copyright expired in the 28th year.
1. Copyright expires 95 years from the date the work was first published
2. If the work was in the public domain before 1998, it stays there.
ii. No new works will enter the public domain until 2018.
1. These works can be renewed in their 28th year and get a second term of
67 years to make a total of 95 years.
3. Assume author died before the end of that term, so that the assignment
of the renewal did not vest in the assignee, but instead belongs to the
author’s heirs.
4. The heirs can stop the assignee from using the derivative work.
G. Termination of Transfer
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b. Doesn’t matter who made the grant – could have been the
author himself or a family member
A. Under current law, federal copyright attaches the minute the work is “fixed” so
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1. Many statutory time periods are measured from the date of publication.
3. For example, giving out copies of a play to friends for their comments.
F. Notice
1. Form of Notice
G. Registration
H. Archival Deposit
4. The law has certain protections for parties – called “reliance parties” –
who were exploiting the work in the US prior to the key date.
i. But, you still have to pay a fee for use of the song.
C. Adaptation
D. Distribution
3. There is one major limitation on this right known as the “first sale
doctrine.”
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b. So, you can sell your used paperback books or CDs without
worry.
4. The first sale doctrine does not apply, however, if the copyright owner
exports copies or phonorecords.
5. Sound Recordings
A. Moral Rights
3. Right of attribution
4. Right of Integrity
A. The owner of any exclusive right under a copyright can sue for infringement.
C. You need not copy every word, or image, or line in order to be an infringer.
b. Or proof that it would have been easy for the defendant to get
the work
3. Thus, the fact that defendant took plaintiff's "idea" does not show
infringement.
1. Requirements:
2. So a bar owner is liable for the infringements of a band who plays there.
3. A TV station is liable for infringing uses carried out over its facilities.
G. Contributory Infringement
2. They have millions of users who send e-mail and post material to web
images.
3. Much of this material might be infringing, but the ISPs are in a poor
position to police these activities and prevent the infringements in
advance.
4. Section 512 of the statute that provides certain “safe harbors” for ISPs.
c. Unless the copyright owner then informs the ISP that it has
filed a court action, the ISP must unblock or restore the
material.
B. So, perhaps the most important limit on copyright is the fair use doctrine –
originally judge made, but now codified by statute.
1. Here, nonprofit uses are arguably more "fair" that profit making uses.
1. Certain works are said to have "thin" copyright, and thus uses of them
are more likely to be "fair."
2. Factual works and data compilations might fall into this category.
3. The fact that the nature of the work is "unpublished" makes it more
likely that an unauthorized use is UNFAIR, but recently added statutory
language makes it plain that this is not dispositive.
1. This is obviously: the more you take, the less likely the use is fair.
2. But even if you take very little, taking the heart of the work, can be
unfair.
F. Effect of the use upon the potential market for the work
1. This is the factor that the Supreme Court has labeled "most important."
XIII. Remedies
C. Monetary remedies
1. Two alternatives
2. Either actual damages suffered plus any profits of the infringer in excess
of those damages; OR
3. Statutory damages
4. The prevailing party may recover costs and attorney's fees at the
discretion of the court, but again, that is only available if you registered
B. These doctrines raise the question of possible conflict with federal law.
1. Section 301 says state laws are preempted if they meet a two-part test:
2. Thus, a state statute that expanded the copyright term from life-plus-70
to life-plus-100 would be preempted.