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Copyright - Kurtz - S08 - Outline

Copyright - Kurtz - S08 - Outline - COPYRIGHT Prof Kurtz...

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C OPYRIGHT Prof. Kurtz, Spring 2008 I. I NTRODUCTION /G ENERAL T HEMES A. Constitutional Clause: Art. I, §8, cl. 8 a. 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. i. Debate over whether “promotion of science and useful arts” is a limiting phrase, if so how limiting. ii. Seen as a creation of incentives for artists, writers, etc. B. Philosophical Justifications a. Incentivizing innovation b. Protecting artistic expression c. Rich cultural domain II. S UBJECT M ATTER (R EQUIREMENTS ) A. Statute a. §102(a) i. Copyright protection subsists only of original works of authorship fixed in any tangible medium of expression , now known or later developed . 1. “now known..” put into the wording of the 1909 statute to overrule the decision in White Smith Music (perforated music sheet rolls) that held since perforated rolls unintelligible, they are not copies. Didn’t take into account the intellectual property, it focused on copies. b. §102(b) i. No copyright protection for original work in an idea, process, operation, concept, principle - explained, illustrated or embodied. B. Fixation a. General i. Statute §101 def 1. A work is fixed in a tangible medium when its embodiment in a copy or phonorecord, 2. by or under the authority of the author, 3. is sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration. 4. 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. ii. Without fixation, it cannot be considered a writing and cannot be constitutionally protected. 1. A work is protected (if possible) as soon as it is fixed. 2. California Civil Code → protects original works of authorship that are not fixed in a tangible medium. This is a form of common law copyright protection 1
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C OPYRIGHT Prof. Kurtz, Spring 2008 a. Ex: choreography never written down, improvised speech or performance b. Early Law i. White-Smith v. Apollo (1908 US SC) → held fixation ≠ perforated music rolls, only fixed if cognizable to human eye. Holmes dissent stressed this killed the rational significance of that Act demanded in © protection, “protected according to what is the protectable essence.” 1. The 1909 Act fixed this particular problem but didn’t overrule this definition of “copy” until the 1976 Act. c. Transitory duration i. Video games 1. Can copyright the ROM (comp. chip) even though the video changes with every time a player plays. Language: has capability of being reproduced w/ machine or device a. Midway v. Arctic → held that the “attract” mode was fixed, and the “play” mode was sufficiently finite and that the © aspects are protected, could have capability of being reproduced.
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Copyright - Kurtz - S08 - Outline - COPYRIGHT Prof Kurtz...

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