Wednesday, August 29, 2012

Copyright: Day 1

This is not legal advice. Leave audio feedback at (512) 686-6329.

On Monday, I started my second year of law school. For those interested, my courses are Professional Responsibility, Evidence, Criminal Procedure, Patent Law and Copyright Law. Yesterday , I started my copyright and patent courses. For those interested, I will be posting patent stuff over at Specifically, my first post is up.

Yesterday was a bit different than my copyright class will normally be because my professor, Professor Wong, is in Asia with the Dean. Susan Richey was filling in for Professor Wong. Even though I had not given any thought to the fact that a write-up of class could be a derivative work, Professor Richey gave express permission for us to post notes. Of course, these twice-weekly write-ups won't just be my "notes" by my independent thoughts on the readings and lecture.

The readings for the day were pages 3-11; 15-18; 21-31and 33-39 Copyright in a Global Information Economy: Third Edition by Cohen, Loren, Okediji and O'Rourke. In case anyone wants to follow along, the ISDN is 978-0-7355-9196-7. Luckily for me, the readings are the same for next class. Also, "Understanding Copyright Law" from LexisNexis is a "recommended" book for the course.

The readings included a snippet from John Locke's Two Treatises on Government, which interestingly I recently gave up on having the time to listen to the audio book. Also, interestingly, there were no cases in the reading. There was just reading from the book authors and select law review articles. If people want citations to law review articles in the future, I can list those in the future. I assume many of the readers won't have access to the law review articles (or the book for that matter, but duplicating things people won't have seems silly).

Of course, being the first day of class, we started by answering the question "What is a copyright?" Well, the easy answer is that it is an "intangeble property" as opposed (obviously) to tangible property right. In the US copyright is based on economic/utilitarian theory, rather than moral/natural rights. While this is not something we really talked about in class, it is worth mentioning that many of the moral rights Europeans enjoy through copyright, USicans get through common law rights, such as the "right of publicity". This is, at least, one way how the US believes it fulfills its Berne Convention obligations. I'm sure we'll come back to this later in the semester, but since I know we have European readers, I wanted to go ahead and mention it here. I've already written about VARA, which is another way US artists can receive moral rights.

While we (fittingly) really didn't talk much about trademarks and patents, we did briefly discuss how copyright fits into the intellectual property scheme.
  1. Patent is strongest, but shortest right.
  2. Copyright is next strongest right, but still limited in time (though long).
  3. Trademark is weakest, but potentially perpetual.
It is worth noting here too that in some other countries trademark protection is stronger. Some countries ban comparative advertising, for example. Comparative advertising is essentially a First Amendment right. Again, this is not something we discussed in class, but I think it worth mentioning.
I can really only say that I learned one thing from the first class, which says less about Professor Richey and more about the knowledge I had coming into the class. That one thing is that apparently the first copyright existed in Ireland in 550...almost 1000 years before the invention of the printing press. The line from King Diarmiud is "to every cow her calf" though obviously he didn't speak modern English. I don't think this historical fact has a ton of bearing on our modern system, so I'm not going to explain the metaphor, but I did find it interesting.

After 550, some important dates are:

1476 -- William Caxton invented the printing Press
1556 -- Charter of the Stationer's Company, copyright used as a tool of censorship
1710 -- Statute of Anne, first recognition of the rights of authors in English law and first recognition of public domain

Professor Richey used a line which I thought was interesting given the modern context - "when there is new technology, copyright law goes berserk." She didn't really seem to put a moral stamp on that statement. If I were to say something like that, I would certainly mean that we as a society had not learned from the past. She seemed to say it in a descriptive manner. It makes me think maybe we as a community should spend less time complaining about player pianos and more time just fixing things. While a day later I hesitate to call it an epiphany, I think it's similar to what I discovered in Constitutional Law last semester. The framer's designed the Constitution for gridlock. Political douche-baggery is not a bug, it is a feature. Now, the context might be different with broadcast television and the Internet, but still, it was something I came away with. Anyway, we'll see if that statement holds sway with me at the end of the semester.

We briefly discussed compilations vs. databases, some history of the copyright act in the US and derivative works, but those are all topics we'll discuss in greater detail at a later date. In fact, as I already mentioned, the readings for tomorrow as the same as the ones for yesterday, so I may bring you more information on those tomorrow or Friday. I do want to mention one other broad thing before I call it quits for the day. Remember, copyright does not protect abstract ideas, facts or scientific principles.

Lastly, we also went over a list of questions about whether things were copyrightable. Here are a select few. Feel free to leave your thoughts in the comments.
  • movie based on the novel
  • a tourist's instant photograph of a scenic view
  • a professional photograph of the same view
  • an artist's copy of the tourist's photograph