Overview Flashcards
(26 cards)
Feist Publications v. Rural Telephone Service
Originality is a constitutional requirement.
- CR doesn’t protect facts
- Only protects original expression (independently created elements + at least a minimal amount of creativity).
Eldred v. Ashcroft (2003)
Copyright term extension was at issue.
- Congress did not exceed its power to grant copyrights for “limited times” in order “to promote the progress of science.”
- Copyright extension also withstood a First Amendment challenge. The copyright clause was adopted around the same time as the first amendment. Copyright provides traditional First Amendment safeguards, such as fair use in the freedom to copy ideas from protected works.
Berne Convention
The Berne Convention requires member countries to provide a certain level of copyright protection. It is a convention for foreigners. It requires the US to provide A certain level of copyright protection for authors from other burn countries. However it doesn’t actually require the United States to give such protections to its own authors. The US does anyways.
Statutory Damages
The US gives $750-$115,000 in damages even without a showing of harm for infringement of a registered work.
Copyrightable Subject Matter
Original work of authorship fixed in a tangible medium.
✅ Originality = Origin + minimal spark of creativity
✅ Work of authorship
✅ Fixed in a tangible form
Excluded Subject Matter
A work can be copyrighted even if not all elements of it is copyrightable.
❌ does not apply to non original elements
❌ does not apply to ideas
❌ does not apply to functional elements w only one way to express
❌ does not apply to works that infringe other CRs
❌ does not protect certain government works
Rights of a CR Owner
- Reproduction right
- Adaptation right
- Public distribution right
- Public performance right
- Public display right
- Anti circumvention & copyright management information rights
Examples of Fair Use
- quoting lines in a book review
- handing out copies of pages to a literature class
- writing a parody
Limitations on CR
- Fair Use Doctrine
- First Sale Doctrine
First Sale Doctrine
The first sale doctrine is a limit on exclusive rights of distribution and display. The owner of a lawfully made copy can distribute it or display it without infringing.
Someone who buys an authorized copy of Anna’s book and resells it is not liable for infringing and it’s right to distribute copies to the public.
Four Factors of Fair Use
- The nature of the use
- The nature of the copyrighted work
- The amount taken
- The effect on the market for the copyrighted work
What must somebody show to prevail in a copyright litigation?
First, you have to show actual copying. There’s no liability if other people independent re-created element similar to yours without copying from you.
Next, you have to show that what was copied was protected expression.
Lastly, The works must be substantially similar; else, there is no infringement.
The alleged infringer may raise various defenses. The most common defense is fair use.
Vicarious Infringement
Controlling and profiting from the infringement
Secondary Infringement
People who are liable for contributory infringement, like inducing someone else to infringe.
Direct infringer
Someone who copies, adapts, distributes, publicly performs, or publicly displays the work
Remedies available for copyright litigation
- actual damages
- and injunction governing the infringer’s future behavior
- impoundment and distraction of on authorized copies and even the equipment used to make them
If you have registered a copy right before the infringement, then you have two more options.
- You could choose to seek statutory damages rather than actual damages.
- You could also seek attorneys fees.
3 Economic Theories for CR
- Incentive-to-create
- Property theory
- Public choice theory
Incentive to Create Theory
Gets legal basis from const.
- balance benefits w cost of protection.
- provides strong argument for CR generally, but fails to closely match the broad scope of CR laws today.
Incentive to Create Theory of Fair Use
Measure costs (decreased incentive for authors)
Against benefits (the favored Use)
Property Theory of CR
Says that more protection is better. It has a narrower view of Fair Use.
Compared to real property. For example, if everybody owns something, no one will want to spend time revising, fixing it up, etc.
By making works private property, we give an incentive to manage, maintain, and improve the works.
Public Choice Theory
This theory works well to explain the broad CR protection available in the states.
This is because authors and creators are usually the ones who are vocal about how legislation should change copyright law.
How is copyright law inconsistent with the property theory of CR?
Property falls prey to the tragedy of the commons. Property tries to avoid externalities. Externalities are where decision makers don’t bear the resulting harms and benefits.
Copyright is actually like the opposite of tragedy of the commons. It is not subject to the tragedy because unlike a lawn, the more exposure to outsiders the better. Copyright owners want more people to see their work.
How could you infringe?
- making or selling copies.
- copying of expression
- making a movie based on a novel.
- public performing of a scene from a novel
- downloading text of a novel.
What is a particular danger of copyright?
It can be used to center or limit the free flow of information.
