Intellectual Property

• First patents - 15th century in England and Italy

• Statute of Anne – 1709 gave rights to authors, publishers, and specified when works entered the public domain

• US Constitution – 1776 gave Congress the right to grant copyrights and patents – first copyright statute in 1790

• First use of the term ‘intellectual property’ – 1967 in the title of the United Nations World Intellectual Property Organization (WIPO)

American Foundational Beliefs

• Freedom – Information is social wealth owned by all such that we have: (1) freedom of speech, (2) freedom of thought, and (3) freedom to learn

• Facts and ideas cannot be owned, suppressed, censored, or regulated

Control of Information

• Privacy issues concern the control of information

• Digital copyright concerns the control of information

• The key question is for whose benefit?

Intent of Copyright Law?

• Copyright law – Aims to balance the interests of the creator

of a work and the public by giving economic incentives to the creator and distributor

– Neither the creator nor the public hold all the rights to a work

• The commons is the source of ‘raw material’ for creating a work

• Copyright systems are socially created

US Copyright Law

• Rights– Reproduce the work in fixed tangible copies– Create adaptations– Distribute copies to the public– Perform and display publicly

• Exceptions– Buyer of a copy can keep it, loan it, rent it,

and resell it

• Copyright covers the depiction of an article, not the article

Additional Features of US Copyright Law

• Fair use covers quotations, parodies, photocopies for classroom use, home videotaping of TV programs

• Most exceptions are narrow• Copyright owners are given no

control over private performance or display, loaning the work, ideas, or facts

Who Cares?

• Until now, copyright law has been aimed at organizations and institutions

• Historically, copyright law only affected organizations, not individuals

• Copyright law was developed by special interests and is arcane and incomprehensible

• Affected organizations have their own staff of lawyers to interpret copyright law

Effects of Digital Technology

• Everyone can become a publisher – blogging

• P2P distribution• Digital technology enables

monitoring and metering and consequently pay-per-view

Technological Change

• Copyright law is susceptible to technological change because– The process of negotiating new law

strongly favors vested interests– Because of the ad hoc exception

laden nature of existing law it cannot anticipate technological change

Copyright Law Revision

• Affected industries negotiate changes and present them to Congress ensuring that– No affected party will agree to anything that

leaves it worse off than the status quo– Outsiders who use new technologies will be

given short shrift– Exceptions are added making new law even

more arcane and complex and therefore a barrier to entry

Fair Use: Rose-Acuff v. Campbell

• http://www.benedict.com/audio/crew/crew.asp

Copyright Law is Bizarre!

• Imagining alternative treatments of a film

• This falls under the notion of derivative works

• Playing a CD in a restaurant• The length of a copyright or

protection for Mickey Mouse™

1900 – 1909 Copyright Conferences

• First conference convened by the Librarian of Congress– Those invited included authors, artists,

librarians, publishers, etc.– Those not invited included motion picture

industry, the piano roll industry, and the talking machine industry

• After much contention, the fourth version of a bill established licensing for mechanical reproductions of music & exempted coin operated devices

1910 – 1912 Conferences

• The issue of a film of Ben Hur by Lew Wallace

• Movie industry concerns were addressed, but not those of theater owners

• 1912 Bill – winners included movie industry, live theater owners; losers included authors of non-dramatic works

1914 - 1940

• New players included ASCAP, radio broadcasters, phonograph manufacturers, and theater owners

• Lengthy negotiations, numerous bills and amendments, growing dissatisfaction

1950 - 1961

• New media – radio, jukeboxes, Muzak®, TV, xerography

• Continued bickering

1976 Copyright Law

• Broad rights and narrow limitations• An example of a broad limitation is

‘fair use’• Satellite Home Viewer Act• Audio Home Recording Act

World Intellectual Property Organization (WIPO)

• Although the US agreed to honor British copyright law in 1891, it refused to sign the Berne agreement until 1989

• The US was a net copyright importer until the last part of the 20th century, now we are a net exporter

• Current Berne agreement gives the author ‘moral rights’ - how a work can be used

Question

1) Copyright law should be short, clear, and fair so we can understand it and follow it.

2) Congress is the public’s copyright lawyer. It should represent the public interest.

Is it possible to get the sort of law described in #1? If not, why not?

Copyright Metaphors

Copyright law is a collection of principles and norms.

Metaphors• Copyright is quid pro quo• Copyright is about limited protection• Copyright is about balance• Copyright is about incentive• Copyright is about control

Assertion of Control & 1st Sale Doctrine

• Computer industry claim that distribution of software involves licensing, not sale

• Attempted repeal of first sale for audio and video works

• How does access control affect what we thought we had the right to when we bought the product?

Piracy

• Those who appropriate copyrighted or patented work and sell massive quantities for their own benefit

• Today, any unlicensed activity, even though legal is often called piracy

• Today piracy = making copies for personal use, sharing with friends, reverse engineering, because the potential for large scale sales exists

• If behavior could have the effect of piracy, it is• Piracy accusations are often accompanied by

spurious claims of lost sales