Week 1: Copyright 1: Overview > Course Introduction > Introduction
- Welcome to the brave new world of intellectual property law.
- My name is Polk Wagner, and I’m a professor here at the University of Pennsylvania Law School.
- I invite you to join me to explore the legal doctrines at the core of the innovation economy.
- Intellectual Property Law and Policy will be your comprehensive guide to the law, policy, and debates in modern intellectual property law.
- You’ll gain a working knowledge of the major forms of intellectual property- patents, copyrights, and trademarks.
Week 1: Copyright 1: Overview > Overview of Copyright > Introduction to Copyright Law
- Today’s lecture is a user’s guide to copyright.
- First, we’re going to have an overview of copyright- what it is, how it works, the basic standards- including some of the parts of copyright that we’re not going to cover in this course.
- Then we’re going to talk about a very important concept in copyright law, which is ideas verses expression.
- So copyright has many elements, and let’s go through each of them right now.
- Subject matter of copyright is all literary and artistic expression.
- Some programmers might think that that was odd, but they are in fact treated just as books or other texts in the context of copyright law.
- So the idea is that copyright covers literary, and artistic, and expression- the key here is expression.
- As we’ll find out later in this lecture, copyright protects expression, not ideas.
- You have to basically be the author in order to have a valid copyright.
- You can register your copyright with the Registrar of Copyrights- which is a division of the Library of Congress- in the federal government.
- You can have a perfectly valid copyright without doing anything at all.
- No formalities are actually required unless and until you want to actually sue somebody for copyright infringement.
- Registering for a copyright is relatively straightforward.
- In general, the law is going to presume under copyright that whoever creates the work- whoever is the author- is actually the owner, unless you transfer it.
- The exception to that is what’s called a work made for hire- that in the copyright law understands that in many cases people will be hired specifically to create copyrighted works- you hire a screenwriter to write your script, for example.
- If you’re not operating as a work made for hire, then you- the creator- owns the copyright.
- The term or protection for copyright is very long- and indeed was lengthened only recently in the mid ’90s- and it’s the life of the author plus 70 years beyond the life of the author.
- What it does mean is because the copyrights live on so far beyond the life of the author that most copyrighted works by the time their term ends really have little or no value left.
- Indeed there’s a major problem in the copyright law of tracing who owns a particular work.
- So that is one of the complications of copyright, and it has a very, very long term- much longer than, for example, like patent law that we had already discussed earlier in this course.
Week 1: Copyright 1: Overview > Overview of Copyright > Basic Rights of Copyright Owners
- So I have the right, the sole and exclusive right, to reproduce my work in any medium and which I choose.
- That’s not the only right, that is perhaps the basic right, the most fundamental right of a copyright owner, but it’s not the only right.
- The copyright law gives me, the original owner of the original copyright, the sole and exclusive right to create these derivative works.
- It’s an important right because it gives people, for example, who write a book, the right to make equals the book for example or the right to create screenplays based on the book or make movies based on the book.
- So not only have the right to keep people from reproducing your work but in general, once you have created copies, as long as you haven’t sold them yet, you have the right to distribute those in any way you see fit.
- I don’t have the right to prevent you from, for example, reselling the book.
- So if I have, for example, a stack of books in a warehouse that have yet to be sold, yet to be distributed, I have the right to determine when they get distributed, how they get distributed, who distributes them initially.
- For the initial distribution, the copyright law gives me that right.
- I have the right to perform and display my works publicly as part of the copyright law.
- For example, if I write a song I not only have the copyright and the text of the song, and I can prevent you from reproducing the song, for example, or creating another musical recording that’s exactly the same, that would violate a reproduction right, I also have the right to prevent other people from performing my song.
- Or if I had for example, made a painting that was a copyrighted work, I have the right to prevent the public display of that without my authorization.
- A knew right that emerged in the late 1990s for copyright owners was the right against circumvention.
- So of a course, if they copy it that’s going to be a reproduction right violation but just the act of circumventing the technology is itself, an anti-circumvention right violation and is an infringement of copyright.
- These are a set of rights that are very rare in the US and in indeed many people think they are not compatible with the way that we think about intellectual property law in the US, in that they are not based on economic value of the work, but instead based on the artists moral right to control his or her works, independent of finances.
- It’s different than an ownership right and we call it a moral right.
- This is more common, moral rights are much more common in Europe, for example, and in particular France, has a lot of moral rights is a part of their copyright law.
Week 1: Copyright 1: Overview > Overview of Copyright > Limits on Copyright Protection
- We’ll talk about exactly why that’s the case, but that’s a really important limit on the scope of copyright, because it means that it limits your protection to the thing that you have created.
- We’ll talk about that some more in a few moments, but that’s the idea verses expression distinction and important limit on copyright.
- There are entire classes of uses of copyrighted works that are not infringements of copyright, because they are what we call fair use.
- Fair use has a number of purposes in the law, including providing for free expression and for allowing for additional innovation.
- The fair use exception, the fair use defense, is a critically important limit on copyright, and probably the one that gets the most attention in terms of real limits on copyright owner’s ability to enforce their works in the real world.
- The next thing to understand about copyright is that independent creation is a defense to copyright.
- So you can only infringe copyright by copying, by taking somebody’s work and copying it in some way.
- If I write a song that just happens to be exactly the same as a prior song that’s copyrighted, and I have had for example no access to that prior song, I don’t know about that song, that was not in my head at the time, then that’s a defense, right? I have not committed an act of copyright infringement by creating my song.
- Similarly if I paint a painting or take a picture that happens to be the same as some prior copyrighted work, I have again not committed copyright infringement unless I actually took the expression from the earlier work and appropriated it myself.
- Making something on your own without access, without using a prior work, is not an infringement of copyright.
- That’s an important limit on copyright protection.
- What compulsory licensing is is a scheme that says that I can you use your copyright for particular purposes, maybe particular cases or particular circumstances, and although it’s an infringement of your copyright, we acknowledge it’s an infringement, you can’t stop me from doing it and I have to typically pay you some specified sum.
- So although we want the copyright owner to get some reward, to get some monetary remuneration from the use of the work, we don’t allow the copyright owner to actually stop the use of the work entirely.
Week 1: Copyright 1: Overview > Originality and Fixation Requirements > The Originality Requirement
- So, let’s talk about the validity of copyright, and in particular, the originality and fixation requirements.
- What the question there- and that’s from the statute- the question there is, what do we mean by an original work in this context? Because originality could have several different meanings, all of which might be perfectly sensible in the copyright context.
- So any of these three concepts about what makes a work original would be sensible under the copyright law, and would be something that we might want to use as our touchstone for originality.
- Then the question is, even if you decide one of these three categories is your test for originality, then you have to decide, how do you show it, right? So if it’s highly creative, for example.
- How do I prove creativity? Do I get a panel of experts to testify on my behalf, for example? If it’s valuable or useful, do I have to show market share numbers or sales figures, something like that? If it’s new, how do I show it? Do I have to show it just like I have to in the context of the patent law, novelty? Showing that nothing has come before that’s quite the same? So all of these are important questions when we talk about the basic originality requirement for copyright.
- The way that they would do this is that they would go around to the local phone companies and ask them for their listings.
- Then they would take the listings of all these local municipalities, or counties, or sometimes even smaller subdivisions of states, and they would compile them together into a larger phone book.
- Then they would publish that phone book, along with yellow pages, and that’s how they would make their money.
- It turns out that the Rural Telephone Service, for whatever reason, probably because they were issuing their own phone books and didn’t want the competition from Feist.
- For whatever reason, Rural decided that Feist could not have the listings that were collected by RTS, the Rural Telephone Service.
- Feist nonetheless copied the listings from Rural and published their phone book.
- It turns out that what Rural had done was, in its phone book and its own listings that it published, it had actually inserted several dozen fake listings that it had made up entirely on its own.
- So it knew that when it saw those fake listings in the Feist publication, that Feist had not gone around and collected all of the information itself.
- The copyright law does make this distinction between facts and fiction.
- What could be more creative than works that are entirely fiction? And in the middle here between the two ends of facts versus fiction, comes what we call, in copyright law, compilations.
- What compilations are, are collections of facts that are selected and arranged in a particular way that is itself creative.
- They simply put them into their book and therefore, because those facts are not copyrightable, what they did is not copyright infringement.
- The selection and arrangement of these listings, even if they’re factual in nature, are nonetheless copyrightable because we published this book of them, arranged in the ways that we saw fit.
- So that’s how this case breaks down, and that’s the question that’s faced by the Supreme Court is, is a phone book a compilation of facts and therefore copyrightable? Or is a phone book merely a set of, facts, which none of it is copyrightable?
Week 1: Copyright 1: Overview > Originality and Fixation Requirements > Minimal Level of Creativity
- In the Feist case, one of the issues that many people have argued about is how much should it count; how difficult it is to put together compilations of facts.
- It requires a lot of work for Feist to go around and do it would be very difficult, because they would have to probably go house by house and figure this out.
- So one additional issue that lingers out there, when we talk about this facts versus fiction distinction that emerged out of the Feist case, is that a lot of thing- that the way that Feist describes facts are things that are not created.
- So what Feist does is leaves open that- the Supreme Court leaves open the ability for a lot of things to be protected by copyright, even those things that you might think of as fact like because they are created facts.
- Coding systems for medical procedures, a series of numbers and letters they would code to a particular medical procedure used by insurance companies, for example, to determine how the billing structure is supposed to work those are copyrightable.
- Parts numbering systems what could be more fact like than the number associated with a particular part? Well, the court says, that has been created.
- That is an original fact and therefore, the amount of originality that’s required to do that, the amount of creativity is there, so under Feist, that’s a fact.
- A listing of car valuations, again, that would seem, at first glance, to just be a fact, how much is my car worth sounds like a fact.
- On the other hand, the fact that you are creating that list, going around either surveying or getting information in some other way to create a list of these valuations, is enough to overcome the Feist restriction on uncopyrightable facts.
- List of prices of rare coins, for a similar reason, have been held to be created facts and therefore copyrightable.
- So the fact that these are all copyrightable means that even though Feist could be read as setting a fairly high standard for originality, that it really doesn’t.
- So one looks back at the Feist case and it might have been the case that if the rural had developed its phone book in a different way, say for example, if they listed it in a different fashion, by number order rather than last name order, for example, perhaps that would be copyrightable.
- Anything to get it out of the realm of what the court described in Feist as being entirely typical, is enough for the copyright law to be original.
Week 1: Copyright 1: Overview > Originality and Fixation Requirements > The Fixation Requirement
- So let’s talk quickly about fixation in a tangible medium of expression.
- So the courts- well, the statutes and the courts- have always required that copyrightable works be fixed in a tangible medium of expression in order to be valid.
- So you might ask, what does that mean? How does the Super Bowl, which is certainly a copyrighted work- how is that, a live sporting event, fixed in a tangible medium of expression? And the answer is, it’s fixed in a tangible medium of expression because it is recorded at the same time that it’s being performed.
- So the fact that at the time that the players are playing, there’s a recording of that being created- it’s being written on the tape, on the disks, in the digital hard drives, for example- that means it’s fixed in a tangible medium of expression.
- At some level, if I’m giving this lecture in front of an audience, then you might think that that’s a live performance not fixed in a tangible medium of expression and therefore not copyrightable.
- If it’s being recorded, even by just one person, or in any way, then it converts into a copyrightable work because it’s fixed in a tangible medium of expression.
- One is copyright law is limited to protection for communications.
- What we want copyright to protect are things that communicate information, that communicate creativity, artistic input, to other people.
- There is some tangible component to what would otherwise be a very unclear and uncertain grant of rights.
- So I know what my copyright is because it’s fixed in a tangible medium.
- I know if somebody has infringed my copyright, for example, because I can see what they’ve done to my copyrighted work.
- So I think that these two mediums are why we have this fixation requirement, both because we want to protect only the communications- only those things which communicate information to other people- and because it makes the administration of the copyright law from an evidentiary point of view much, much easier.
- Courts have routinely held that computer memory- RAM memory- is capable of fixing information in a tangible medium.
- The implications of that are actually quite staggering, which is that means that as our communications shifts increasingly towards digital communications, towards texting, towards tweeting, towards computer mediated forms of communication, that means copyright law becomes more central.
- Now, obviously they want you to read the email so they’re not going to sue you for copyright infringement.
Week 1: Copyright 1: Overview > Idea Versus Expression > Idea Versus Expression
- So let’s talk about ideas versus expression.
- So the basic thing I want you to know here is that copyright protects expression, but not ideas.
- Why would copyright not protect the ideas? The main reason for this is a channeling reason, which is, we already have a part of intellectual property law that protects ideas.
- So if you want to protect your idea, then you go to patent law.
- Obviously, not all ideas can be protected under patent law.
- The only thing that you can protect is the expression of those ideas.
- We want to channel people who want ideas protection into the patent law, and people who want expression protection, protection for the particular expression of whatever they’re doing, that’s a copyright thing.
- It included some blank forms, ledger forms and other forms that were particularly adapted for using the method.
- The court in Baker versus Selden says that Selden cannot get copyright protection for the forms, because they are a manifestation of the idea of his accounting method, rather than the expression.
- What the court was saying is that what happens in this case, is that those forms are, in effect, the idea itself.
- That the ability to prevent people from using those forms would be the same as allowing them to prevent people from using the idea of double-entry accounting, and therefore would allow copyright to expand too far in the protection of ideas, rather than being limited to just expressions.
- So drawing the lines between idea and expressions is pretty hard.
- We need to be careful, and understand that not everything in that book is necessarily copyrightable, that there are pieces of that, parts of it, even the core of it that is not copyrightable, because it is ideas and not expression.
Week 1: Copyright 1: Overview > Idea Versus Expression > The Merger Doctrine
- So when we talk about ideas verses expressions, it is, as you might imagine, a difficult thing for courts to sort through.
- What do we mean by ideas verses expressions? And in some ways, the courts think about this in terms of levels of abstraction.
- For example, in the Selden case, I have the idea of double entry accounting.
- This concept, this idea that you can account for things by entering it in two different places, as a debit, as a credit, that’s an idea.
- If you drill down a little further, you get to a more generalized description of the idea.
- So this is the tough part of figuring out where ideas begin- where ideas end and expression begins.
- The specific expression of the idea is typically easier.
- Again, the middle part here is where I am generally describing the idea.
- I am choosing words in some way or choosing expression in some way to describe that idea.
- At the same time, it’s very tightly associated with the idea itself.
- So if the expression effectively merges with the idea, then there’s no copyright.
- So if you make a set of instructions for how people can enter themselves into a sweepstakes contest, that, the courts have held in the Morrissey v. Procter & Gamble case, is a merging of idea and expression.
- So the idea of the game, the idea of the contest, merges with the words chosen.
- There’s not a whole bunch of ways you can tell people to fill out a form, mail it in, how many times they can enter, what are the rules, those are really- those expressive choices are tied up entirely in the idea of doing the game.
- It’s going to be only on the very, very specific choices that you’ve made, for example, perhaps, the font size, or the font type, those sorts of choices might remain as copyrightable, but the rest of your choices, because they are dictated by functionality, are merging with the idea of- or the function of the computer program and therefore, not copyrightable.
