Class 4 Slides

Class 4 Slides

Unless otherwise noted, the content of this course material is licensed under a Creative Commons Attribution 3.0 License. Copyright 2008, Bryce Pilz. You assume all responsibility for use and potential liability associated with any use of the material. Material contains copyrighted content, used in accordance with U.S. law. Copyright holders of content included in this material should contact [email protected] with any questions, corrections, or clarifications regarding the use of content. The Regents of the University of Michigan do not license the use of third party content posted to this site unless such a license is specifically granted in connection with particular content objects. Users of content are responsible for their compliance with applicable law. Mention of specific products in this recording solely represents the opinion of the speaker and does not represent an endorsement by the University of Michigan.

Copyright Part 2 Class 4 - September 26, 2008 SI 519/PubPol 688 Bryce Pilz Fall 2008 Some Coming Events BY: marctonysmith (flickr) by-nc-sa/2.0/deed.en

Flash of Genius Opening October 3 Story of the invention of the intermittent windshield wiper. Questions and Examples

Karaoke MLK Jr. Speech Concept of Derivative Works Concept of Compilations Examples Questions and Examples

Karaoke MLK Jr. Speech Concept of Derivative Works Concept of Compilations Examples Karaoke BY: absentmindedprof (flickr) licenses/by-nc-sa/2.0/deed.en In-home machines sold charged lower-royalties Percentage of price of unit Unites used in bars/clubs handled differently Different parts of the copyright bundle of rights are implicated Compulsory Licenses Sec. 115

Further distribution of musical phonorecords that have previously been distributed to public with owners consent Third parties may obtain compulsory license for distribution without express permission Procedure (1) notice; (2) royalty Royalty set by royalty judges Compulsory Licenses Not Available Phonorecord defined as including only sound

So, must karoke machines (include CD&G machine are not phonorecords So, compulsory licensing not available Synch licensing is needed Reproducing a work as part of an audiovisual work (ex. TV shows and movies) Synch License Synch licensing is needed Reproducing a work as part of an audiovisual work

(ex. TV shows and movies) Not covered by statute High fees Owners can refuse (e.g., U2, ABBA, Bon Jovi) $350-1000 per song; 7-10 years Permitted to make copies at statutory rates (9.1 cents / song under 5 minutes) Lyric License

Lyrics typically not covered by synch license (but can be under a broad license) 4-8 cents per sheet Current Debate Synch royalties too high many bootleggers Compulsory licensing scheme needed Expand definition of phonorecord Other than lyrics, karaoke disc no different than an album

Albums traditionally not charged to print lyrics on cover Questions and Examples Karaoke MLK Jr. Speech

Concept of Derivative Works Concept of Compilations Examples MLK Jr. Speech Estate of Martin Luther King Jr. v. CBS Issue was whether I Have a Dream speech was copyrighted? 1909 Act governed require formalities King had not registered copyright prior to giving speech; gave copies of speech to media

CBS used 60% of speech in 1994 documentary; refused to pay royalties MLK Jr. Speech 1909 Act work in first term as of 1978, gets 28 year term + 67 year renewal term Estate had executed renewal term in 1991 11th Cir limited publication to media is not a publication that prevents copyrighting an unregistered mark

I have a dream speech is copyrighted and owned by Estate of MLK Jr. Questions and Examples Karaoke

MLK Jr. Speech Concept of Derivative Works Concept of Compilations Examples Derivative Works One of the bundle of rights given to the copyright owner in sec. 106 NOT something you are permitted to do (unless exception like fair use applies)

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed or adapted. Source: U.S. Copyright Act of 1976, Section 101 Derivative Works

Ex) novel motion picture Ex) second version of software Ex) translation Ex) remixing previously released track with new instrumentation Copyright in DW extends only contributed by author of DW and does not impact rights or term of original work

Questions and Examples Karaoke MLK Jr. Speech Concept of Derivative Works

Concept of Compilations Examples Compilations Similar to Derivative Works in that copyright extends to original authorship added No impact on original works Except that 201(c) gives privileges to author of compilation if the original works were submitted (National Geographic Case)

Questions and Examples Karaoke MLK Jr. Speech Concept of Derivative Works

Concept of Compilations Examples Example Healing Foods Pyramid Healing Foods Pyramid Source: Healing Foods Pyramid (cont.) Re-drawn by publisher but with changes

Added garlic, onions, and corn to vegetables category Added pretzels to grains category Problem? Example Grant Proposal Third party submits grant proposal to UM to receive internal funding Grant marked with notice Grant does not win funding

Third party asks UM to identify every individual who saw the proposal accuses UM of violating confidentiality of grant because grant was marked as copyrighted Problem? Lessig Who Owns Culture Part 1 BY: Larry Lessig (Official website) Eldred v. Ashcroft BY: Padraic (Wikipedia) CTEA Coverage Does not apply to works already in the public domain

Does not apply to works created but not published or copyrighted by 1978 and still not published by 2002 CTEA Rationales - Congress Harmonization with EU Life of creator + one generation Allow owners to take advantage of technological developments that have extended life More income to corp. owners to subsidize new works

Incentive to preserve existing works in digital form Progress Clause Decision Pp. 8-13 1) CTEA violates limited Time provision of Progress Clause a time span appropriately limited as applied to future copyrights does not automatically cease to be limited when applied to existing copyrights Source: Eldred v. Ashcroft, 537 U.S. 186 (2003)

No evidence of purpose to evade on part of Congress History: Congress has done this before Progress Clause Decision pp. 13-17 2)CTEA not a rationale exercise of congresss authority under the Progress Clause Harmonize with Europe Increase incentives

Wont second guess congress rational basis is easy to satisfy Eldreds Arguments P. 20 1)CTEA overlooks the requirement of originality (Feist) Feist dealt with creative spark, not duration So, apparently no originality requirement for extending term

Eldreds Arguments Pp. 20-22 2) CTEA does not promote the Progress of Science Defers to Congress generally for Congress, not the courts, to decide how best to pursue the Copyright Clauses objectives. Source: Eldred v. Ashcroft, 537 U.S. 186 (2003)

Eldreds Arguments Pp. 23-27 CTEA violates copyright quid pro quo (only in exchange for a writing) Given the history of extensions author or work created in the last 170 years would reasonably comprehend, as the this offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time. Source: Eldred v. Ashcroft, 537 U.S. 186

(2003) First Amendment Decision Pp. 28-31 Copyright incorporates its own speech-protective purposes and safeguards 1) idea/expression 2) fair use CTEA supplements the safeguards Certain rights for works in their last 20 years

So, no strict scrutiny in fact no further scrutiny Thoughts restoration and digitization rationale only extends to some types of works Harms Only 2% of copyrights between 55-75 years old retain commercial value (CTEA results in several billion dollars of royalties from public)

Tough to track down owners of old works Benefits not that great Present value of last 20 years is roughly 7 cents Uniformity is not perfect and is over-valued Disappearance of monopoly is important to disseminate expression Kahle v. Ashcroft

Kahle is Chairman of Board of Internet Archive IA would like to include orphan works Kahle lost on same grounds as Eldred Supreme Court denied cert. Lessig Who Owns Culture Part 2

BY: Larry Lessig (Official website) Greenberg v. National Geographic (2001) 201(c) Contributions to Collective Works: Copyright in each separate contribution to a

collective work is distinct from copyright in the collective work as a whole and vests initially in the author of the contribution Source: U.S. Copyright Act of 1976 201(c) In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the

contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. Source: U.S. Copyright Act of 1976 201(c) Rationale 1909 Law freelance authors risked losing copyright in individual contribution absent a printed copyright notice in authors name 1976 Act rejected idea of indivisibility;

adopted bundle of rights theory 201(c) intended to limit what the author gives away Issue: Is CNG a new collective work, and therefore an unauthorized use of the freelance authors copyright? Or, is CNG a revision and therefore covered by the privilege given to the publisher under 201(c).

NYT v. Tasini Freelance authors articles originally appeared in NYT, Newsday, and Sports Illustrated Reproduced articles in electronic databases (Nexis, NYTO, and GPO) Articles viewed in isolation of context of original print publication NYT v. Tasini revision = new version and version for purposes

of 201(c) is a distinct form of something regarded by its creators or others as one work. Source: U.S. Copyright Act of 1976 Critical fact: Databases presented articles to user standing alone and not in context. Different from microfilm Source: New York Times Co. v. Tasini, 533 U.S. 483 (2001) Databases are NOT revisions copyright

infringement National Geographic Maintains context okay under Tasini Does added material make CNG more than a revision? Brief visual introduction (acting as a virtual cover for the collection of magazines) Analogous to new cover on encyclopedia set What does this mean?

Tasini? cant remove freelance articles from context when creating electronic databases National Geographic if you maintain the context of the articles, you can add introductory material to re-package the collection Most important: contracts can change all of this! Most publishers changed contracts in mid-90s to expressly include electronic rights DMCA Take down procedures for service providers:

very specific notice, under oath. Notice to author as well. Universities considered service providers Anti-circumvention provisions Cant make or sell device to circumvent technical measures for purposes of accessing or copying No fair use exception Orphan Works

Problem? Ongoing debate view of legislative process Why are photographers opposed? Problem: things like good faith and reasonable compensation can only be decided in litigation

Thoughts? Lessig Them, Soon Lessig Proposals More formalities Registration? Marking? Shorter terms Free use v. fair use

Derivatives shorter term, scope Music 4 types of copying How big/small is type A Quality is same Copyright Summary

Purpose: to promote learning Idea/ expression and fair use No formalities Only protects certain rights to exclude others (independent creation is okay) Bundle of rights divisible Right to producing derivative works is part of those exclusive rights Copyright Summary

Lots of rhetoric on both sides Beware of false warnings from owners On free culture side: note that very few defend actual copying of something you would otherwise purchase Concern is about collateral damage Patent Primer Significant monopoly 20 years from filing Takes 3-5 years to get your patent

20 years File Issue Expires Patent Primer Why such as shorter term? Monopoly is so much broader

Covers what you define in words to be your invention Copyright: source code and screens Patent: Method performed (steps a, b, c, and d) Patent Primer Requirements Statutory subject matter: process, machine, manufacture, or composition of matter (or any new and useful improvement thereof)

Useful (easy) New Nonobviousness Written description Patents Source: U.S. Patent 5,960,411 Source: U.S. Patent 5,960,411

Source: U.S. Patent 5,960,411 What is claimed is: 1.A method of placing an order for an item comprising: Under control of a client system, Displaying information identifying the item; and In response to only a single action being performed, sending a request to order the item along with an identifier of a

purchaser of the item to a server system; Under control of a single-action ordering component of the server system, Whereby the item is ordered without using a shopping cart model. Right to exclude others from making, using, selling, or offering to sell anything that meets the elements of this claim.

Source: U.S. Patent 5,960,411

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