Transcript Slides Class 18 - The Catholic University of America

COPYRIGHT LAW 2004
Columbus School of Law
The Catholic University of America
Prof. Fischer
March 29, 2004
WRAP-UP POINTS:
MECHANICAL LICENSE
• Section 115 of the Copyright Act is a
limitation on the scope of the reproduction
and distribution right of the copyright owner
in section 106.
• It provides for a type of compulsory license
known as the mechanical license
• This is a compromise designed to protect
composers but prohibit music monopolies
:
MECHANICAL LICENSE
• Section 115 entitles musicians and record
companies to make and sell (for private use)
their own recordings of copyrighted musical
works of another artist if (1) those
copyrighted musical works have already
been recorded with that other artist’s
permission (2) the musicians and record
companies pay a set statutory fee to the
copyright owner and (3) they don’t change
the “basic melody or fundamental character
of the work.”
HARRY FOX AGENCY
• What does this organization do?
WRAP UP POINT: THE
HARRY FOX AGENCY
• The Harry Fox Agency is a organization by a
trade association of leading music publishers
(NMPA) to represent music publishers. For a
fee, HFA issues mechanical licenses and collects
royalties due under those licenses from record
companies.
• For a great book on the music industry, see
Krasilovsky/Shemel, This Business of Music.
HARRY FOX LICENSE
• The HFA mechanical license has some
special features, for example, the service of
notice of intention to obtain a compulsory
license is waived.
• Courts have held that this license is still a
variant of a compulsory license and should
be treated as a compulsory license rather
than a private contract.
OTHER MECHANICAL
RIGHTS LICENSING
ORGANIZATIONS
• Harry Fox Agency is not the only
mechanical rights licensing organization.
Others include the American Mechanical
Rights Agency (AMRA), Copyright
Management, Inc., and Publishers Licensing
Corp.
• They are all very small in comparison to
Harry Fox Agency.
INT’L MECHANICAL RIGHTS
ORGANIZATIONS
• Other nations have mechanical rights
organizations, e.g. Canadian Musical
Reproduction Rights Agency Ltd.
(CMRRA), British Mechanical Copyright
Protection Society (MCPS), French Societé
pour l’Administration du Droit du
Reproduction (SDRM), etc...
LIMITS IN SECTION 114
• Like section 115, 114 limits reproduction
rights of the copyright owner but here the
relevant copyright owner is the owner of
rights in sound recordings.
• It only protects against reproduction of
sound recordings that directly or indirectly
recapture the actual sounds fixed in the
protected recording.
PRIVATE COPYING OF
SOUND RECORDINGS
• Section 1008 of the Copyright Act of
1976, which was added by the Audio
Home Recording Act of 1992, permits
“consumers” to make copies of sound
recordings for “noncommercial use”.
• This provision was a compromise over
“digital audio tape” DAT technology.
AUDIO HOME RECORDING
ACT
• 1. Infringement actions barred for home
audiotaping (digital or analog)
• 2. Royalty charges imposed on sales of digital
audiotape recorders and blank tapes (paid by
manufacturers/importers). Pay into 2 funds (musical works, sound recordings)
• 3. Obligation to include serial copy management
systems in consumer digital audio recording
devices to prevent copying copies.
RIAA v. Diamond
• The Rio was a handheld
digital playback device
that stored and played
compressed music files
from a PC.
• It could not copy files or
upload files to a computer
or another Rio. – did it
violate copyright law?
RIAA v. Diamond
• Ninth Circuit held that
Rio was not a “digital
audio recording
device” under the
Copyright Act of 1976
and so it did not
violate the Copyright
Act.
RIGHT TO PREPARE
DERIVATIVE WORKS
• See s. 106(2
• Overlaps the right of reproduction but is
somewhat broader.
• Is it necessary?
Is Section 106(2) necessary
• Some commentators, such as Paul Goldstein
think it is. They argue that protecting
derivative works serves to ensure that there
are adequate incentives to develop new
works.
• Others, e.g. Nimmer, think it is superfluous
due to overlap with reproduction or public
performance rights
Effect of section 103
• All new expression in a derivative work is
separately copyrightable. However, section
103(b) extends copyrights only to new
expression, not the original material.
• Section 103(a) provides that only the
original author or a licensee can get
copyright in a derivative work. Is this fair?
HORGAN v. MACMILLAN
• Issue: Can a book
amount to an
infringing derivative
work where the
original work is a
work of
choreography? Why
or why not?
HORGAN v. MACMILLAN
• 2d Circuit found the
District Judge applied
the wrong test
• Correct standard is
whether copy is
substantially similar
to original
• NOT whether original
work could be
recreated from copy
MICRO STAR V. FORMGEN
(9th Cir 1998) • Why did Micro Star
file suit?
• Is Nuke It an
infringing derivative
work? Why or why
not?
• Does putting a piece
of pink saran wrap
across your TV create
an infringing
derivative work?
COPYRIGHTABILITY OF
VIDEO GAMES
• Computer programs
are copyrightable - so
if you copy game you
will infringe
• If you copy
audiovisual display
have you infringed?
COPYING VIDEO GAMES
• Audiovisual display has been held to be
separately copyrightable as an audiovisual
work - though some doubts as to whether
original or fixed because user can alter, to
some extent, display
LEE v. A.R.T. Co. (7th Cir. 1997)
• Did A.R.T. infringe
Annie Lee’s copyright
in her artworks by
creating derivative
works?
• Why or why not?
• How does the First
Sale doctrine affect
the court’s reasoning?
• Is this like framing?
LEE v. A.R.T. Co. (7th Cir. 1997)
• Note split in Circuits 9th v. 7th
• What is the economic
argument for he
court’s decision?
NATIONAL GEOGRAPHIC V.
CLASSIFIED GEOGRAPHIC
• Did D’s compilations
amount to infringing
derivative works?
• What if D had just
purchased and sold
back issues?
• What if D sold
individual torn-out
articles?
• How can this case be