COPYRIGHT TUTORIALProfessor Samuelson 1/19/991WHAT IS “IP”? Intangible rights in intangible information Patents for technological inventions Trade secrets for commercially valuable secrets (e.g., source code, Coke formula) Trademarks (e.g., Coke) to protect consumers against confusion Rights of publicity (e.g., Elvis heirs cf. imitators) 2DIFFERENT THEORIES Utilitarian (e.g., grant rights to create incentives for beneficial investments) Natural rights (e.g., persons have natural rights in their creations if valuable) Personality-based (e.g., my creation is an extension of myself) Unjust enrichment (e.g., others ought not be unjustly enriched by appropriating ideas)3U.S. CONSTITUTION Congress empowered to promote progress of science and useful arts by securing to authors and inventors exclusive rights for limited times in their respective writings and discoveries4CONTOURS FROM CONST. Purpose: promote science Who: authors How: exclusive rights How long: limited times For what: writings Other constitutional provisions of note: supremacy clause, 1st A, commerce clause5SUBJECT MATTER OF COP. “Original” works of authorship (Feist: white pages listings not “original”) “Fixed” in a tangible medium of expression (MAI: RAM copy fixed enough to infringe) Categories of works: literary works, musical, dramatic, pictorial and sculptural, architectural, audiovisual, sound recordings, choreographic6MULTIPLE COPYRIGHTS Think of a typical music CD which has: Music Lyrics Sound recording Photograph or drawing or both on cover Explanatory text about recording artist Rights clearances a complicated process7“UNCOPYRIGHTABLE” STUFF Ledger sheets and blank forms Rules and recipes (“merger”) White pages listings of telephone directories Facts and theories Ideas and principles Methods of operation/processes Bicycles and bicycle racks8COMPILATIONS special rules Jointly authored works: contribution of expression w/ intent to make part of inseparable whole10HOW AUTHORS GET RIGHTS Attach automatically by operation of law from first fixation Last for life of author plus 70 years (or 95 years from publication for corporate works) Register with Copyright Office to ensure broadest remedies and to bring suit Publication not required, but once work is published, deposit with LOC may be11WHAT OWNER OWNS Exclusive rights to reproduce work in copies, to prepare derivative works, to distribute copies to the public, to publicly perform and display work “Moral rights” for works of visual art Secondary infringements (e.g., facilitating others knowing theyll infringe)12HOW AUTHORS EXPLOIT RIGHTS License rights to others on exclusive or non- exclusive basis Sell (“assign”) rights to others (e.g., publisher) Develop products yourself Join copyright collective (e.g., ASCAP) so that they can do licensing for you Sue people who exploit without permission 13LIMITS ON EXCLUSIVE RTS Fair use (e.g., Sony Betamax, Acuff-Rose) First sale (e.g., libraries, bookstores) Library-archive (e.g., ILL, course reserves) Classroom performances Small operations (e.g., radio in fast food joint) Specialized inter-industry compulsory licenses (e.g., cable-network TV)14FAIR USE object to fair use “tax”) No more first sale/sharing rights (first sale only permits redistributing same copy, not making new ones) OSP strict liability for user infringements19WHITE PAPER ISSUES-2 Tampering with copyright management information should be illegal Need to outlaw circumvention of technical protection systems Need to outlaw manufacture or distribution of circumvention technologies Get intl treaty to universalize these new norms20WIPO COPYRIGHT TREATY Reproduction right applies to digital (no agreement on temporary copies) Exclusive right to communicate digital works to the public by interactive service Fair use and other exceptions can apply as appropriate; new exceptions OK Merely providing facilities for communication not basis for liability21WIPO TREATY-2 Tampering with copyright management information to enable or conceal infringement should be illegal Need for “adequate protection” and “effective remedies” for circumvention of technical protection systems Treaty not yet in effect, but likely to be22BASIC INTL SITUATION Berne Convention for Protection of Literary & Artistic Works Paris Convention for Industrial Property “National treatment” (do unto foreign nationals no worse than do unto own) Berne has some minimum standars WIPO administers treaties, hosts meetings to update or revise 23BASIC INTL SITUATION-2 TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement National treatment, but minima for seven classes of IPR Must have substantively adequate laws Must have adequate remedies and procedures and must enforce effectively Dispute resolution proc