class 25 copyright, winter, 2010 copyright and the constitution randal c. picker leffmann professor...

Class 25Copyright, Winter, 2010

Copyright and the Constitution

Randal C. PickerLeffmann Professor of Commercial Law

The Law SchoolThe University of Chicago

773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.

New Sup Ct Case Reed Elsevier, Inc. v. Muchnick (U.S., March

2, 2010) The Issue

http://www.copyright.gov/title17/92chap4.html#411

The Result: Not Jurisdictional (8-0) http://www.supremecourtus.gov/opinions/

09pdf/08-103.pdf

May 3, 2023 Copyright © 2010 Randal C. Picker 2

May 3, 2023 Copyright © 2005-07 Randal C. Picker 3

Creating a Poem I Hypo

In my office, on paper, word by word, I create a poem

I stop writing and declare my poem completed

Do I have a copyright in the poem?


Answer Answer

Sure 102(a): Copyright protection subsists, in

accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.


Creating a Poem II Hypo

In my office, speaking into a tape recorder, word by word, I create a poem

I stop dictating and declare my poem completed

Do I have a copyright in the poem? Is the tape recording a distinct copyright object?


Answer As to the poem, sure 102(a) embraces a media neutrality idea

The poem is fixed on the taped and can be perceived from the tape with the aid of a machine or device


Answer Understanding Fixation

The poem is no less “fixed”—fully specified and defined—on tape than it was on paper

The fact that it didn’t exist before I started to dictate doesn’t matter; that was true of the paper as well


Answer See Legislative History

“This broad language is intended to avoid the artificial and largely unjustifiable distinctions, derived from cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1 (1908), under which statutory copyrightability in certain cases has been made to depend upon the form or medium in which the work is fixed. Under the bill it makes no difference what the form, manner, or medium of fixation may be—whether it is in words, numbers, notes, sounds, pictures, or any other graphic or symbolic indicia, whether embodied in a physical object in written, printed, photographic, sculptural, punched, magnetic, or any other stable form, and whether it is capable of perception directly or by means of any machine or device ‘now known or later developed.’”


Answer As to the sound recording

Statute treats that as separate copyright object “Sound recordings” are works that result from the

fixation of a series of musical, spoken, or other sounds

Author of sound recording will be person running tape recorder

But poem continues to exist as separate literary work, just as it did when it was “recorded” on paper


Answer As to the sound recording

While sound recording is a separate copyright object with, perhaps, a different author, the sound recording as work will be either a copy of the underlying work—the poem—or a derivative work of that poem


Creating a Poem III Hypo

In my office, speaking into a tape recorder, word by word, I create a poem

I stop dictating and declare my poem completed

I discover then that I failed to turn on the tape recorder



Answer Answer

No; the poem isn’t fixed in a TME The poem is an unfixed work subject to

regulation under state law under 301(b)(1)

Creating a Poem IV Hypo

I write a poem on paper in my office as before I memorize it I recite it at a poetry slam A member of the audience writes it down as I

recite it in public Has she violated my copyright in the poem?


Answer Answer

Yes The poem as a copyrighted work exists when I

write it down She has access to the work through my recitation;

there is no requirement that she have access to the fixation of the work itself

She copies the work without access to the fixation



Creating a Poem V Hypo

In public, word by word, I create a poem out loud

I set up a tape recorder to capture my recitation



Answer Answer

Same creation and fixation process as occurs in my office when the recorder is on

No difference in result, so I should have a copyright in the poem


Answer Two Angles to Pursue

Unlike creation on paper, someone else can record the work at the same time that I am recording the work

Where does that put us if I also record it? I don’t record it?


Creating a Poem VI Hypo

In public, word by word, I create a poem out loud

I set up a tape recorder to capture my recitation

Everyone else in the audience records it too Do I have a copyright in the poem? What

about each recording of the poem?


Answer As to poem

Copyright analysis of poem shouldn’t change

As to poem author’s sound recording No change in analysis


Answer As to other sound recordings

Each of those is separate work as sound recording and tape recorder owner will be the author

But … Had the poem already been fixed before

being recited, each person with a recorder would be using the recorder to reproduce a copyrighted work


Answer That would violate copyright under 106,

unless carved out as fair use under 107 pursuant to something like Sony


Answer When is the poem fixed? At the end? Word by

word? If at the end, the audience didn’t copy a (federally)

copyrighted work and therefore didn’t impermissibly reproduce under federal law

• But as work (the poem as literary work) is fixed no later than the end, I can’t make further copies, distribute etc.

• Reflects notion that access to physical instantiation of the work doesn’t give me the rights of the copyright holder (202)

• And also see 1101


Answers Statutory Guidance on This?

Consider last sentence of definition of “fixation”

A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.


Answers And the definition of “transmit”

To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.


Answer What if the poem’s author didn’t record it?

Unfixed work subject to state law Federal law (106) does nothing for author What can audience member do with sound

recording made by him? See 1101


[SC: TRIPS]

Link


Part II, Section I: Copyright and Related Rights: Art. 14

1. In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.


U.S. Implementation of TRIPS

Pub. L. 103-465, December 8, 1994 Implements Art. 14(1) of TRIPs regarding

unfixed musical performacnes Section 512

New Section 1101 of the Copyright Act Section 513

New criminal violations in 18 USC 2319A


1101: Unauthorized fixation and trafficking in sound

recordings and music videos (a) Unauthorized Acts.‑‑Anyone who,

without the consent of the performer or performers involved‑‑ (1) fixes the sounds or sounds and images

of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,


1101 (Cont.) (2) transmits or otherwise communicates to

the public the sounds or sounds and images of a live musical performance, or

(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States,


1101 (Cont.) shall be subject to the remedies provided in

sections 502 through 505, to the same extent as an infringer of copyright.


18 U.S.C. § 2319A (a) Offense.

Whoever, without the consent of the performer or performers involved, knowingly and for purposes of commercial advantage or private financial gain—

(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation;


18 U.S.C. § 2319A (Cont.) (2) transmits or otherwise communicates to the

public the sounds or sounds and images of a live musical performance; or

(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States; shall be imprisoned for not more than 5 years or fined in the amount set forth in this title, or both ...

Situating Martignon How should we think about 1101 and

2319A? Are they copyright statutes? Something else? What turns on that?


Golan v. Gonzales: Policing the Public Domain

Start with Berne Convention Article 18

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

Turn to Berne Convention Implementation Act of

1988 (Esp Sec. 12) http://www.copyright.gov/title17/92appj.html


Restored Works and the Public Domain

104A: Copyright in Restored Works http://www.copyright.gov/

title17/92chap1.html#104a


104A Legislative History Senate Report 103-412

The legislation includes language to restore copyright protection to certain foreign works from countries that are members of the Berne Convention or WTO that have fallen into the public domain for reasons other than the normal expiration of their term of protection.


104A Legislative History The Agreement requires WTO countries to

comply with Article 18 of the Berne Convention. While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention. Article 18 requires that the terms of the convention apply to all works that have fallen into the public domain by reasons other than the expiration of its term of protection.


104A Legislative History (Examples include failure to file a timely

renewal application and failure to affix a copyright notice).

The bill would automatically restore copyright protection for qualifying works of authors from Berne or WTO countries one year after the WTO comes into being.


Restored Works and the Constitution

104A Consistent with the Copyright Clause? The Commerce Clause? The First Amendment? The Treaty Clause?

On remand: Golan v. Holder (here)


class 25 copyright, winter, 2010 copyright and the constitution randal c. picker leffmann professor...

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