intellectual property boston college law school january 18, 2008 copyright – ownership, duration

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Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

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Page 1: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Intellectual Property

Boston College Law School

January 18, 2008

Copyright – Ownership, Duration

Page 2: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

17 U.S.C. § 102

• (a) Copyright protection subsists,… in original works of authorship fixed in a tangible medium of expression, …. Works of authorship include the following categories:– (1) literary works;

– (2) musical works, …;

– (3) dramatic works;

– (4) pantomimes and choreographic works;

– (5) pictorial, graphic, and sculptural works;

– (6) motion pictures and other audio visual works;

– (7) sound recordings; and

– (8) architectural works

Page 3: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Compilations

• Definition: “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”

• Examples: academic journals, certain encyclopedias, musical compilations, factual compilations

• Main issue is originality

Page 4: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Roth v. United Card

Roth Greeting Card United Greeting Card

Page 5: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Ownership

• 17 U.S.C. § 201(a)– (a) “Copyright … vests initially in the author or

authors of the work”– (b) “In the case of a work made for hire, the

employer or other person for whom the work was prepared is considered the author …, and unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights ….”

Page 6: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Work for Hire

• 17 U.S.C. § 101: Work for hire:– (1) “a work prepared by an employee within the

scope of his or her employment; or”– (2) “a work specially ordered or commissioned

for use as a contribution to a collective work … , if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

Page 7: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

“Employee”

• Possible definitions– Employer retains right to control– Employer actually exercises control– Common law agency definition– Formal, salaried employee

Page 8: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Work for Hire

• Factors to consider for employee– Right to control work being performed

– Skill required

– Source of instrumentalities and tools

– Location of work

– Duration of relationship

– Right to assign additional projects

– Hired party’s discretion

– Payment method

– Role in hiring and paying assistants

– Whether in the regular business

– Payment of employee benefits, taxes

Page 9: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Work for Hire

• 17 U.S.C. § 101: Work for hire:– (1) “a work prepared by an employee within the scope

of his or her employment; or”

– (2) “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, … as a compilation, as an instructional text, … , if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

Page 10: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Work for Hire

• Work for Hire vs. Assignment– Term

• Work for Hire: 120 years from creation or 95 from publication

• Assignment: life of the author + 70 years

– Termination• Work for Hire: no right to terminate

• Assignment: right to terminate assignment after 35 years

Page 11: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Joint Works

• 17 U.S.C. § 201(a)– (a) “Copyright … vests initially in the author or

authors of the work. The authors of a joint work are co-owners of copyright in the work.”

• 17 U.S.C. § 101– “A ‘joint work’ is a work prepared by two or

more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”

Page 12: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Aalmuhammed v. Lee

Page 13: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Collective Work

• Definition: “A ‘collective work’ is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.”

• Issues– Copyright in each contribution is a separate copyright

– In absence of agreement, collective work owner acquires only right to reproduce and distribute each contribution as part of the collective work and any revision

Page 14: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Duration

• 17 U.S.C. § 301– “Copyright in a work created on or after

January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.”

Page 15: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Duration

• Terms for different types of works– Individual authors: life + 70 years– Anonymous works, pseudonymous works,

works for hire: 95 years from publication or 120 years from creation, whichever is earlier

– Joint works: life + 70 years for last surviving author

• Term extends to end of calendar year

Page 16: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Duration

• History– 1790: 14 initial + 14 renewal = 28 total– 1831: 28 initial + 14 renewal = 42 total– 1909: 28 initial + 28 renewal = 56 total– 1976: life + 50 = approx. 80 total– 1998: life + 70 = approx. 100 total

Page 17: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Duration

• Created after 1/1/78– Date: from creation– Term: life + 70 …

• Published 1964-78– Date: from publication– Term: 28 initial + 67 renewal (automatic)

• Published 1923-63– Date: from publication– Term: 28 initial + 67 renewal (must renew)

• Published prior to 1923– Public domain

Page 18: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Copyright Term Extension

• Arguments against– Little incentive impact for future works– No incentive impact for existing works– Prevents works from entering public domain

• Arguments for– Harmonization with other countries– Incentive to preserve and distribute works

Page 19: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Eldred v. Ashcroft

• Challenge to copyright term extension– Violates Copyright Clause

• “Promote progress”• “Limited times”

– Violates 1st Amendment

• Court rejected both arguments– Congress given much deference under copyright clause– 1st amendment addressed by copyright doctrine

• Idea/Expression doctrine• Fair Use

Page 20: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Transfer

• 17 U.S.C. § 201(d)– (1) The ownership of a copyright may be

transferred in whole or in part by any means of conveyance …

– (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights …, may be transferred as provided by clause (1) and owned separately…

Page 21: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Termination

• Post 1978 transfers - 17 U.S.C. § 203– Can be effective during 5 year period, 35 years from

original transfer

– Notice between 2 and 10 years from effective date

• Pre 1978 transfers - 17 U.S.C. § 304(c)– Can be effective during 5 year period after expiration of

original 56 year term under 1909 Act or 75 year term under 1976 Act (general rule)

Page 22: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Termination

• Important Limitations– Does not apply to works for hire– Derivative work exception

• Can still continue to use derivative work under grant

• But cannot prepare new works

Page 23: Intellectual Property Boston College Law School January 18, 2008 Copyright – Ownership, Duration

Administrative

• Read through II.E.1 – Reproduction Right