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
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
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
Roth v. United Card
Roth Greeting Card United Greeting Card
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 ….”
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.”
“Employee”
• Possible definitions– Employer retains right to control– Employer actually exercises control– Common law agency definition– Formal, salaried employee
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
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.”
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
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”
Aalmuhammed v. Lee
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
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.”
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
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
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
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
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
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…
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)
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
Administrative
• Read through II.E.1 – Reproduction Right