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Constitutional Challenge - Copyright Law - Lecture Slides, Slides of Law

Aliah UniversityLaw

These are the lecture slides of Copyright Law. Key important points are: Constitutional Challenge, Term Extension, Fixation, Treaties, Bootlegging Provisions, Originality Requirement, Idea Expression Dichotomy, Berne Convention, Trips Agreement, Wipo Copyright Treaty

Typology: Slides

2012/2013

Uploaded on 01/26/2013

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TODAY’S CLASS
•Announcement: U.S. Supreme Court rejects
constitutional challenge to Sonny Bono Copyright
Term Extension Act constitutional (7-2)
•Wrap-up (fixation, treaties)
•A few more words on fixation and the anti-
bootlegging provisions
•The originality requirement
•The idea-expression dichotomy (if we have time)
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Download Constitutional Challenge - Copyright Law - Lecture Slides and more Slides Law in PDF only on Docsity!

TODAY’S CLASS

  • Announcement: U.S. Supreme Court rejects

constitutional challenge to Sonny Bono Copyright Term Extension Act constitutional (7-2)

  • Wrap-up (fixation, treaties)
  • A few more words on fixation and the anti-

bootlegging provisions

  • The originality requirement
  • The idea-expression dichotomy (if we have time)

WRAP-UP: INTERNATIONAL

TREATY REGIME

  • Berne Convention
  • TRIPS Agreement
  • WIPO Copyright Treaty
  • WIPO Performances and Phonograms

Treaty

Bootleg Recordings and the Protection of Live

Performances: A Problem of Statutory Construction

  • Problem – if a live performance is not being “transmitted” but is being simultaneously recorded, the Copyright Act does not appear to treat this performance as being fixed – though maybe it falls withiin the first sentence of the statutory definition of fixation in s. 101
  • It appears (at least according to Nimmer) that this is an example of Congress legislating more narrowly than the Docsity.com

ANTI-BOOTLEGGING

PROVISIONS

  • A solution to the statutory construction problem in the definition of fixation arising from broadly drafted technology-neutral fixation provisions
  • Title 17 s. 1101
  • Grew out of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) (part of WTO GATT) and became law by operation of the 1994 Uruguay Round Agreements Act (requires fixation for live musical performances)
  • Is it constitutional (see U.S. v. Moghadam (11th Cir. 1999)? Why or why not? Is this decision inevitable? Docsity.com

THREE IMPORTANT EARLY

COPYRIGHT LAW CASES

  • 1. Burrow-Giles Lithographic Society v.

Sarony (1884) - CB p. 76

  • 2. Bleistein v. Donaldson Lithographic Co.

(1903) - CB p. 79

  • 3. J. Alfred Bell & Co. v. Catalda (2d Cir.

1951) - CB p. 85

Burrow-Giles Lithographic

Society v. Sarony (1884)

  • Who was Napoleon Sarony, the plaintiff?
  • What is lithography?
  • What were the 2 important constitutional questions on which the Supreme Court had to rule in this case?

Copyright in Snapshots

  • Is this snapshot of my dogs sufficiently original to be copyrightable?
  • Does it matter whether my goal was to produce a likeness of my dogs as a keepsake?
  • What if I just set the camera up to take pictures at 10 minute intervals and it took this picture, among others?
  • What if I decided to take a photo for use on a Christmas card so I put the holiday scarves on the dogs? Docsity.com

Bleistein v. Donaldson

Lithographing Co. (1903)

  • Justice Oliver Wendell Holmes - an unsuccessful copyright plaintiff
  • What was the issue that Holmes had to decide in this case?
  • Is Bleistein’s ruling on the amount of originality required for copyrightability consistent with Burrow-Giles? With the Patent and Copyright clause?
  • What is the Bleistein non- discrimination principle? Do you agree with it? Docsity.com

An added wrinkle for the

originality requirement: copies of

public domain works

  • Who were the plaintiffs in Alfred Bell & Co. v. Catalda (2d Cir. 1951)?
  • What did they seek copyright protection for?
  • Were the works copyrightable, according to Justice Frank?
  • Do you agree? Why or why not?
  • Is Bridgeman Art Library v. Corel Corp. (CB p.
    1. consistent with Bell v. Catalda? Why or why not?

1976 Act on copyrightability

  • Does the 1976 Act, like the 1909 Act,

protect “writings of an author”?

  • No - “Original works of authorship” (

U.S.C. § 102(a))

  • Why use narrower language than the

Constitution?

  • What is the latest Supreme Court

interpretation of section 102?

An Originality Question

  • Jane writes a song. Jane never plays her

song for anyone else, and consequently

Emma has never heard Jane’s song.

Suspend credulity and imagine that Emma

writes a song that is identical to Jane’s. Is

Emma’s song copyrightable under the 1976

Copyright Act?

Learned Hand

  • “.. .[I]f by some magic a man who had

never known it were to compose anew

Keats’ Ode On a Grecian Urn, he would be

an “author,” and, if he copyrighted it, others

might not copy that poem, though they

might of course copy Keats.”

  • Sheldon v. MGM, 81 F.2d 49, 54 (2d Cir.

1936), aff’d, 309 U.S. 390 (1940)

General Trend for Originality

  • The courts over the years have

progressively lowered both the statutory and

constitutional standards for originality.

  • Although Congress did not want the

language in §102 to be coextensive with

Art. 1 s. 8 cl. 8 of the Constitution, these

standards have converged.