Intro to Copyright: Originality, Expression, and More

Intro to IP – Prof Merges

2.9.09

The Nature of Copyright

• Long-lived, but narrow protection

• Life of author plus 70 years

• Protects only “expression,” NOT underlying idea

• Traditonally, most effective in the analog “copyright industries”– Publishing– Movies– TV– RadioExpanding Impact Now

Comparison with Patent

• Copyright is “thinner” but longer

• Copyright is easier to obtain, fewer and different requirements

• Copyright has more specific “industry tailoring” than patent law, in general

Section 102

• “Copyright subsists . . .”

• Versus patent law . . .

Section 101: create

• A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particualar time constitutes the work as of that time, , and where the work has been prepared in different versions, each version constitutes a separate work.

Patent vs. copyright

• Invention claims

• Work copyrighted subject matter

Formalities

notice

publication

registration

deposit

Fixation

Originality

Copyright: Requirements

Work Embodiments Rights Limits

Literary Wks Books, softwareCopies; Deriv.Wks.; SSO Fair Use

Musical works Sheet music; records Copies, DW’s,Public Perf.

§115 Comp.Lic. (covers)

Soundrecording

Records, tapes etc. Copies, DW no pub perf

Different Industries, Works, Rights

WRAP UP: FEIST (1991) [CB p. 112]

• “Thin” Copyright Protection for compilations – copyright in original selection, arrangement, or coordination of data/preexisting materials (see definition of compilation, s. 103(a) and (b))

• Definitively rejects “Sweat of the brow doctrine”

1. Idea/Expression Dichotomy §102(b), Baker v. Selden

2. Useful Article Doctrine 3. Government Works §105

4. “Fair Use”

Limiting Doctrines

Feist

• Rural Telephone Service–the local phone company in

northwest Kansas–Provide service, assign phone

numbers, obtains info as a byproduct of those activities–Required by law to issue phone book

Feist (499 US 340 [1991])

Telephone Directory

AAckerman, Harold

Armstrong, Saundra

BBenavides, Fortunato

CClinton, William J.

Originality: Impact on Databases

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Feist

– Distribute phone books: free to consumers, charge companies to be in Yellow Pages

• Feist Publications– Entrant into area-wide phone book market– Struck deal with 10 of 11 to license listings; Rural

refused– Feist got names from phone book; sought to verify

listings; did most not all

“Facts” in Feist

• “Two Well-Established Propositions”

– Facts are not copyrightable

– BUT – – Compilations of facts are copyrightable

Facts as Discoveries

Authors “discover” facts, do not create or “originate” them

–Where else have we seen this distinction?

Single facts

• Not difficult to deal with

A Copyright Office regulation denies copyright protection to ''[W]orks consisting entirely of information that is common property containing no original authorship, such as, for example: Standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists of tables taken from public documents or other common sources.” 37 CFR § 202.1(d).

Originality and the Constitution

• The Congress shall have the Power . . .–To promote the progress of science

and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;–(Art. I, § 8, cl. 8)

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Feist: What is Copyrightable in a Compilation?

• S/C/A– Selection– Coordination– Arrangement

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Essence of Copyright

• Hard work (“sweat of the brow”) v. originality

• Feist finds originality to be a constitutional requirement for copyright protection by Congress

– Raises difficult issues about the ability of Congress to protect merely hard work creations, even under, say, the Commerce Clause

Difficult problems of preemption

• If something is expressly unprotectable by federal copyright law, can it nevertheless be protected by (1) another type of federal law, and/or (2) affirmative state legislation, and/or (3) private contract as backed by state enforcement?

Total Concept and Feel: Roth Greeting Cards v. United Card Co. (9th Cir. 1970)

• Was the greeting card protected as a compilation?

• Is the total concept and feel test for infringement doctrinally sound?

Copyright in Case Reports

• Are judicial decisions copyrightable?• What about West’s enhanced case reports?

See Matthew Bender & Co. v. West Pub. Co., (2d Cir. 1998)

• What about West’s star pagination? See Matthew Bender & Co. v. West Pub. Co. (2d Cir. 1998)

CCC Information Services v. Maclean Hunter (2d Cir. 1994)

• Copyrightability of the Automobile Red Book – Official Used Car Valuations

• Why didn’t the merger doctrine argument succeed?