Session 5 Copyright 2
Zahr Said, A Transactional Approach to the Lay Observer in Copyright Law
Internal contradictions in uses of the observer. Humanities perspective: copyright doesn’t have a theory of reading/interpretation/engaging with works. Reader response theory as a means for addressing some confusion in © law: it’s a literary theory broadly applied to film, art history, music, and other genres beyond text.
Payoff: more coherence for ©’s reading practices and specifically for its reader. Formal tests used by courts and a variety of informal uses. Formal: urge adoption of lay perspective, such as 2d Circuit’s ordinary observer test; 7th Circuit’s more discerning observer test, which is less about observer and more about filtering. Function of lay perspective unclear; rationales vary and are sometimes in conflict—proxy for market harm, other things.
Reader response theory reoriented analysis of art away from text and towards audience (an oversimplification but that’s what you get in 8 minutes). Different movements w/in the theory; her favorite is Rosenblatt, who started writing about it before almost everyone else did—1938. Scholar/teacher who attended to pedagogical scholarship. Reader response theory involved a spectrum of fidelity to text, author. Author communicates and controls à ideal reader. Text controls à implied reader. Reader controls à interpretive communities. Rosenblatt’s scholarship was practical, thus useful for judges: The reader is here and the text is there and something happens in the space of the transaction, but reader can’t do just anything with a text. Some readers see more cues and some see fewer; some see different cues and you can be trained to see different ones. The reader actively engages with the text. Transaction controlsà reader creates, text constrains.
Two modes for readers: aesthetic and efferent stances. Not the aesthetic from Bleistein, but phenomenological. Aesthetic: a general experience from interacting with the work. Its meanings for you unfold through time. You might notice color, shape in a painting—a basic understanding. Efferent: You’ve been asked to take some piece of information away with you—efferent comes from Latin, meaning to bear something away. There’s a correct answer: how many straight lines are in the picture?
Aesthetic can change; there’s no one correct reading (though there are incorrect ones) and the reading may change over time. Evolves; concerned w/what’s experienced during the reading; varies based on reader’s knowledge and background. Efferent: objective, public, informational, functionalist, can proceed quickly b/c you can filter; in theory any reader can get the full/same info if equipped with sufficient guidance.
Aesthetic to efferent is a switch of modes: experience v. studying for the midterm. Spectrum of practices in ©; judges are better efferent readers than aesthetic, especially when we’re discussing questions of scope, such as what’s protectable and what’s in the public domain. Efferent reading should be the task for matters of law. Juries or factfinders can read aesthetically. Doesn’t mean decision will be uniform.
Prescriptions: we ought to allow more expert evidence for anything that’s efferent. To the extent we allow aesthetics in for look & feel or holistic test, acknowledge what we’re doing and instruct juries in it. Perhaps even use special verdicts for the jury to identify what they see as similar. If juries could explain, judge could even read jury’s expressions and come to some conclusion about that. We need to be clearer about what we’re asking juries to do—look at the instructions in Blurred Lines case, where they were unclearly asked to do a job that they unsurprisingly did poorly.
Kevin Collins, Economically Defeasible Rights to Facilitate Information Disclosure: The Hidden Wisdom of Pre-AWCPA Copyright
As an architect, I viewed © not to stop copying by architects, but as a tool to prevent owners from screwing me over. Prevented the building owners w/whom I worked from appropriating my design without full payment. Law prof default: copyright augments incentives for expression by preventing copying by strangers. Architect view: © facilitates bargained-for disclosure, resolving Arrow’s information paradox, backing up a contractual relationship rather than providing incentive to create through in rem rights.
Pre-AWCPA rights were quirky, economically defeasible rights. Proven difficult to justify under standard incentive theory of ©. Hidden wisdom revealed in dealings with building owners. If you recognize that architectural © played a transactional role in backing up contracts, it makes good sense.
Copyright maximalists complained that lack of protection against copying buildings meant insufficient incentive. Minimalist critique: weak copyright is good for creativity and protection should be thin; but defeasible rights are ill-conceived. Why not protect both buildings and drawings and equally through thin copyright?
Features of contracts that create information problems: Standard design-bid-build project delivery: five phases; design information is mostly generated early on, with schematic design, design development; then construction documents, bid oversight, construction management. Last phases: more management, coordination, not creative information producer. These agreements usually defer most compensation to later phases of the contract. Antitrust authorities went after AIA in a way that makes architects hesitant to share fees info. Design development is a small component of fees received; most is paid at the end. When offering services a la carte, architectural firms incresae the cost of schematic design as a stand-alone service. Finally, for many reasons, the contract is terminable at the convenience of the owner. This allows owners to engage in opportunistic conduct: hire more expensive architect to design, then fire her and hire a cheaper architect to oversee the grunt work.
Thus, architects will hesitate to reveal design information early in the process for fear of misappropriation, but owners want to know that information before fully committing. Pre-AWCPA rights provided strong rights against appropriation by owners; until the building is built, there is no built building from which to copy, which can then be copied—but by then architect will have received all the necessary fees. So pre-AWCPA rights provided the minimum rights necessary to get the incentives right.
Almost all post-AWCPA cases fall into two categories: (1) architect v. owner, same as pre-AWCPA. (2) suits against strangers involving cookie-cutter, model-home developers/architects, where expectation is that cost of design is to be recouped over the sale of many copies. Architects for specialized projects aren’t using their AWCPA rights. Future work: why not? Is post-AWCPA copyright just very thin?
Rebecca Curtin, Contractual Origins of Authors’ Rights: Looking for deals showing an idea of literary property not dependent on possession of the actual manuscript. Earliest evidence of authors’ contracts is in Stationers’ Register itself: “Entered for his copy”—might not even name the author, but would name printer/bookseller who entered the copy. A handful of different entries: The Treatise of Melancholy by Timothy Bright, Oct. 1586; Bright promised not to meddle with the printing of the book until sold. One of the ambiguities of the time was how soon or whether authors would have the right to reissue a new, altered, abridged, or revised version. Stationers’ copyright was protection only against literal copying, so authors putatively (others as well) could abridge or otherwise create new versions. Here, the parties negotiated to prevent competition from the most desirable source, Bright himself. Although this isn’t about a strong reversionary right, we see authors & publishers trying to work out the problem of literary property on a contractual basis.
1607: a note that it’s agreed that this copy shall never hereafter be printed again without the consent of Mr. Ford the author. A retention of rights. Piggybacking off of the ability of the bookseller who entered the copy to vindicate those rights. That right doesn’t depend on physical possession of manuscript; leverages contract to control the work. There’s still an ambiguity: whether Ford is free to deal with another bookseller.
Another memorandum: seller promises not to reprint w/o author’s consent, and will surrender copy to him when he shall require it. Parties have advanced to thinking about the “masters,” as it were. Intended it to be used as evidence in court in the event of a dispute.
Contracts become more complex over time—Milton’s contract for Paradise Lost called for contingent payments; he got more money if the first run sold out, and more if a second/third run sold out. Total potential: £20. Also included duty to account; emergence of author as commercial dealer. 1690s: contract b/t Tonson and Dryden includes complex compensation provisions, both up front and investment on Tonson’s part to allow Dryden to resell copies as part of his compensation. Language isn’t very clear separating delivery of manuscript from right to exclusively print; they don’t always make the distinction. Very clear language borrows from vocabulary of property in 1709, just before Statute of Anne: “sole right and title” for a complete copy, “and 50 copies for my own use.”
Authors were far more active in market as proprietors than we’ve given them credit for. Idea of authors as owners can be shown in the transactions they undertook.
Zvi Rosen, Saurabh Vishnubhakat, Empirical View of Copyright Registrations and Renewals under the 1909 Copyright Act
No statistics exist prior to the Copyright Act of 1870. Until 1897, there are statistics by class and year. No records for 1897, when they moved buildings. 1898 and beyond: annual reports with basic statistical information. Catalog of copyright entries begins publishing in 1891; published for Customs agents to enforce manufacturing clause, but it was ineffective for that and people quickly used it for registration info. CCE expanded over time to add more information; 1947: began including statistics on renewal.
1909 Act: need publication with notice, then registration and deposit. So, did authors register shortly after publication under the 1909 Act? Until renewal became optional, 98% of renewals were registrations for 28 years earlier; almost everyone registered pretty much right away. Even in 2005, it’s 76%. So renewal data can be used to determine renewal rates as percentage of registrations.
Annual reports turn out to be only kind of helpful, though. Ratio of registrations in annual reports to registrations in CCES, also same issue w/ renewals: a lot of variations (it doesn’t match the calendar year). Registration #s: Books dip in Great Depression while music seems to go up. Photos: spike and then drop, lower in 1977 than they are in 1900. Other categories have their own curves. Mapping copyright against economic panics: you can see for all of them more or less there’s a subsequent dip in © registrations.
Percentage of all renewals by filing year: Renewals that mention an initial registration after 1978 and renewal after publication—this would skew the calculation of renewal right. 2005: a lot of people filed a registration and a renewal in the same year in order to be timely. [I would guess for termination of transfer reasons.] Renewal rate for all registrations 1919-present. 1962: extension of renewal term; 1978; 1992 becomes automatic and renewals decline. 47-year term: renewal rate gets substantially higher and stays that way. Renewal rate for 1947-1961: 12%; goes up to 15% until 1977, when term was being consistently extended; then went up to 20%. Very little variance year by year within periods. The one from 2005 is unusual because it became increasingly known in business that filing was unnecessary.