Moderator: Daralyn Durie, Durie Tangri
Tony Reese, UC Irvine Law School
Revising the © Act will require defining the scope of
subject matter; not recently controversial but important threshold question—hard
to evaluate rights and remedies w/o subject matter. Represents Congress’s
decision about which types of authors’ creations need © protection. No major
controversies now, as sound recordings were in the 70s, but wants to propose
principles for drafting.
How we got here: gradual expansion of © subject matter over
time. 1909 approach: “all the writings
of an author,” plus a list of classes in which works can be registered—familiar
list. Courts/© Office generally treated
the list as comprehensive. 1976: extends
© to all “works of authorship,” expressly undefined, but another list of
categories included. 1990: added architectural works.
(1)
Statute should expressly enumerate all of the
categories of subject matter that Congress intends to protect. Current statute
doesn’t do that. Given the substantial,
long-lasting exclusive rights given to anyone who fixes a minimally creative
work of authorship, many people might want to claim statutory protection.
Recent controversies: yoga poses; artistically planted flowerbeds. Perfume/fragrance (controversy in Europe);
culinary dishes; fireworks displays; typography; digitally recorded smells;
golf course design; invented languages; tactile sensory enhancement for books.
We should avoid these undefined, open-ended, residual claims. Whether we
protect a work with © is a policy question Congress should answer: is
protection needed for perfume to encourage sufficient production/dissemination,
and do the benefits of protection outweigh the costs? Constitution commits the
Q to Congress and is better positioned to answer in general rather than facing
one copier and one copied claimant.
Restitutionary impulse of courts fights against the empirical/policy
analysis needed for whether protection is generally justified. Congress can
also tailor protection if/when necessary. Congress could choose sui generis
regime for perfume if something is needed.
(E.g., no derivative work right for perfumes, as the rules differ for
sound recordings/architectural works.) Otherwise, © will be binary: if perfume
is protected, there is a derivative works right. If perfume is protected,
anyone who’s copied w/in the statute of limitations is on the hook; but
Congress typically adds subject matter on a forward-looking basis, and can deal
better w/timing and retroactivity. Given all this, it’s unsurprising that
courts and the © Office have generally declined to take up the statute’s
invitation to discover new categories. 1960s:
when Office registered computer programs, it did so as books (like how-to
books).
(2)
Statute should protect compilations and derivative
works only if they fall within one of the enumerated categories; current
statute is ambiguous. Consider a zoo: current definition says the collection
and assembling of preexisting materials.
If it’s original and the collection is stable enough to count as fixed, then a
zoo is a compilation even though it’s outside all the enumerated categories. A
menu could be protectable; disc of digitally recorded smells. No clear need to protect such compilations
outside the categories; the Act should be clear. The Office so interprets the
Act but it should be clearer.
(3)
Statute should define each enumerated category;
currently define only 5 of 8, and definitions could help. Choreographic work: would help know whether
yoga, sports routines, bicycle ballet count as choreographic works. Definition
of dramatic works might help in Garcia
whether an actor’s individual performance counts as a dramatic work.
(4)
Congress shouldn’t just punt by going to the
constitutional power.
Wendy Gordon, Boston University Law School
Subject matter and exclusive rights can be reformulated so
each means the other; useful articles are a good example. Reese’s suggestion about
compilations/collective works is great and should be adopted.
Problem: historic division between patent and copyright.
Patent’s negative pregnant: things that aren’t patentable/patented but
functional—therefore in the public domain, at least as far as in rem exclusive
rights are concerned. This preserves
competition/incentive for people to pursue patents for patentable subject
matter. Patent wants to secure progress; we don’t want © with its long term and
broad scope to get in the way, but there are a lot of beautiful objects that
aren’t functional. So it feels wasteful
to deny © to pretty things that aren’t inventive enough to patent. However sad that fact might be, © isn’t the
place for expansive protection, though she has no objection to a narrow sui
generis design right (or design patent, which needs improvement but does
exist).
Ok, so we have this bifurcation into © and patent subject
matter. Ordinarily, other IP laws defer
to patent and its negative pregnant. But
there’s a struggle to keep finding some compromise to allow the aesthetic
aspects to be sheltered by some sort of exclusive claim when no real harm to
patent would occur. Baker v. Selden was right to focus not on the intangible itself but
the purpose it served.
What are the appropriate subjects of ©? Educate, enthrall, allow us to dance—none of
these belong in patent. When these functions are served, no special scrutiny
need apply. Current statute describes
useful article for items whose creativity resides in shape and line: intrinsic
utilitarian function not merely to portray appearance/convey information. This works for visual works, but not for
things like dance, music—need a slightly different definition. Drassinower: ©
is about communication and works that don’t communicate shouldn’t be protected,
but CONTU turned its back on that some time ago. Whether or not we adopt © as
communication or something more visual and shape oriented, some conception of
object- or purpose-limited definitions of subject matter makes sense.
What of a musical tone that releases your phone messages?
Vocalization that encodes an encrypted file that is unlocked by
voiceprint? Those are things we wouldn’t
want copyright to protect: they are functional.
Visually pleasing pattern of notes made into wallpaper: likewise.
Separability has caused much heartburn, caused not just by inevitable
differences in perspective but by awkward drafting of test: whether features
can exist independently of utility has very little to do with the policy at
issue, which is to keep things that help utilitarian progress stay public
domain or governed by patent law. Test should be switched to make that point
more clearly. Has statutory amendments to propose. Copyright in a picture of a object doesn’t
extend to any right to control making the object. And rights in the object don’t
extend to rights that would impair the public’s ability to copy the utilitarian
aspects.
Rob Kasunic, U.S. Copyright Office
Time for big revision instead of legislating on margins,
according to Register Pallante. Hearings on copyright issues have begun. Many roundtables at Office and PTO/NTIA have
begun. Hearing on subject matter was an
eclectic mix.
Encouraging provision of standardized unique identifiers of
works/authors/owners could foster a more efficient market and reduce orphan
works. Lots of recent press on UK’s Copyright Hub as central source for info
collection/provision. We have 150 years of data on this through public
registry/recorded documents. That is our
Copyright Hub, which we need to improve and modernize. This needs funding!
Invest in unique attributes of public registry, which can then interact with
private registries that serve specific communities/needs. We can be a model for
the international community if we make it happen.
Registration is the foundation of the Office and the
national copyright system as a whole. We must teach people what registration is
and does. Most © text books only spend a few pages on this, and most law profs
don’t know just how great a role registration plays. But enormous effect on litigation. Practitioners are well aware of registration
questions. On an average day a registration employee does the equivalent of 5-6
copyright final exams. Issues w/useful
articles and compilations are both significant questions for the Office. We are
required to examine claims/deposits and issue or refuse certificates. Has recommended creating a registry of
refusals, which would be useful to the public. We also require claims to be
amended/clarified/unsupported statements to be removed; we annotate certificates
to clarify their scope. Claims depicting
useful articles will be annotated with §113 language; claims that seem to talk
about an idea will be annotated with §102 language; we may register under a
rule of doubt—expects rulemaking on computer programs/intersection of copyright
and trade secret. It’s troublesome if
there’s an infringement action based on something no one at the Office ever
reviewed/redaction for trade secret, and claims are on the rise.
We serve as a check on overreaching, and help courts when
they give us a chance. Kasunic drafted
policy statement on compilations that don’t result in copyrightable subject
matter—not just the Office’s whim, but following from legislative history. This
allowed court to resolve a lawsuit on Bikram yoga that was pending for years;
court quoted heavily from policy statement. Compilation authorship must be
perceptible in the deposit, which matters for things like numbers, putting us
at odds with two courts of appeals. We’ve defined choreography for rejecting social
dance/end zone dances. We’ve rejected synthetic DNA claims. We’ve stuck to our
useful articles/separability analysis, and the 9th Circuit has given
us deference in the recent hookah case.
Registration system has had significant victories in the last
years: Proline, court agreed it had no authority to order issuance of
certifications of registration. Court
deferred on what info has to be in an application. Brownstein: 9th
Circuit found no authority to order Office to cancel registration. We get
deference if we are reasoned and logical and show our work.
Threats: private registries will not fulfill these goals;
they may provide info, but they do not provide a filter. Second threat: the application approach that
some courts follow, allowing jurisdiction before issuance of registration;
undermines registration/national copyright system.
Solidify and invest in this role through the revision
process.
Carl Malamud, Public.resource.org
Public.resource.org puts public databases on the internet,
when unavailable perhaps because of misguided fee structure or agency says it’s
too hard to do or nobody cares about info (that’s what we heard from SEC and
PTO, even though patent database is specifically called out on Constitution).
We are suing IRS to get e-file data online. We put video online—14,000 hours of
congressional hearings; 6000 videos on YouTube and Internet Archive, with 50
million views.
We do the law. All courts of appeals—many times
retyped. Court documents, with full
privacy audit. One of our most important
tools is “government works” clause, which must be reaffirmed. Unique to US and
very important tool for online info.
Another doctrine, not explicit in the law: “edicts of gov’t”—the
law has no ©. Wheaton v. Peters,
reaffermed over and over, e.g. in Veeck.
But: Mississippi AG has threatened us with $1000/day fine per law, claiming
under state law. In Georgia, the head of
judiciary committee in Senate has sent us multiple takedowns for posting the
only official code of Georgia—© is asserted by the state. Delaware Code: says
that anyone who uses code w/out authority of secretary of state shall be fined
or imprisoned. Harvard law students
sought a license to speak the law.
Half the cities in California asserted copyright, but we’ve
found cities remarkably cooperative.
Volunteers have gone in and taken codes, and made dramatically better
versions: dccode.org is a dramatically better product. It’s partly democracy
and partly innovation: better tools for citizens and lawyers.
Legally mandated public safety codes and tech documents:
building, fire, elevator, boiler, etc. codes. In some ways the most important
laws, and when ignored you get a 1000 foot wall of flame in a gas refinery
explosion. These laws are typically enacted at state level, but we also have
many in the CFR—hazmat transfer, pipeline safety, workplace safety. We’ve begun
posting these in 2008. We redraw graphics so that they can be resized; we
recode the formulas so they can be read by accessible readers. 19,000 public
safety codes for the country of India.
Train safety; food processing; water testing; toy safety; etc.
This isn’t a theoretical issue—we’re being sued in DC for
having posted the national electrical code mandated in all 50 states. We’re
being sued in Germany for having posted the standard of safety in Europe for
baby pacifiers. We have 28,000 documents: theoretically could be billions in
statutory damages. But the concept that the law is not copyrightable because it
is owned by the people is crystal clear in the common law. Requiring a license
to speak the law is fundamentally undemocratic, but this muddled state has a
huge chilling effect on innovation. Codify “edicts of law” exclusion. Breyer:
if the law isn’t public, it isn’t the law.
Durie: the world is changing; there will be new things we can’t
imagine—why should we make an exclusive list?
Reese: there’s been no case made that any of the examples I
mentioned are underproduced without copyright protection. We certainly don’t want to exclude blog posts
because they’re not books, but of course the broad interpretation of “book” in
the 1909 act would have allowed that. We
have broad categories now, and they can take care of new technologies. To the
extent really new tech comes along, like digitally recorded smells, or changing
your heart rate with a character in a book as you read, it seems fine to say
that judicial or administrative interpretation shouldn’t let that in and
Congress should act.
Durie: should we reject copyright protection for unfixed
performances, or rethink that?
Gordon: we don’t have constitutional freedom to do that.
Main thing needing clarification: unfixed works look like they can be protected
by state law, but the §301 kind of saving clause shouldn’t be read literally,
and protection for unfixed works should be preempted when it would interfere
with the objectives of federal copyright.
Kasunic: in many cases the question comes down to “what is
the work?” Fireworks, food on a plate—the
images thereof could be a work, but sometimes people get confused about what’s
protected. Portrayal of uncopyrightable subject matter can sometimes be
copyrighted; this causes enormous problems in registration system, and we’re
trying to at least separate the issues. People don’t send parks to us in the
mail, or fireworks. We get ID material,
and that material is always some other kind of work, and getting clarity there
is important. Same with unfixed works.
In order to talk about infringement, you have to fix the work!
Durie: magic tricks—Office’s view?
Kasunic: Teller’s magic trick was registered, very thorough
description with step by step description and drawings. The question is the
scope: §102(a)/§102(b)—at some point you always reach an idea, system or
process. We could ask Congress to
resolve this, but Learned Hand said it well: nobody will ever fully define that
line.
Reese: Congress could give some help by defining pantomime
or dramatic work, but left us at sea.
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