Copyright Royalty Judges

“ What is clear, however, is that the rule enunciated in Banks was grounded on the Court’s interpretation of the term “author” in the Copyright Act of 1790, that works created by courts in the performance of their official duties did not belong to the judges, and that public policy compelled the conclusion that these works were in the public domain and uncopyrightable.
Thus, we understand the rule in Banks to derive from first principles about the nature of law in our democracy. ”

“ The majority reads this Court’s precedents differently. In its view, the Court in Banks held that judges are not “authors” within the scope of the Copyright Act for “whatever work they perform in their capacity as judges,” 128 U. S., at 253, so the same must be true for legislators, see ante, at 8–9. Accordingly, works created by legislators in their legislative capacity are not “original works of authorship,” §102, and therefore cannot be copyrighted. ”

“ But in the Parliament of 1911 the bill emerged from committee stage with an elaborate proviso, based on the American precedent, excepting from the definition of infringement contrivances for the mechanical reproduction of sounds on (I) proof that the copyright owner has previously acquiesced in mechanical reproduction, (2) prescribed notice of intention, and (3) payment of royalty of 2 1/2 or 5 per cent with a minimum of a halfpenny for each record, or in the case of different works on the same record, to each copyright proprietor. ”

“ The provision as actually adopted was a compromise upholding the negative right of the author to prevent mechanical reproduction, but requiring him, in the event of a grant of authority to any one manufacturer to reproduce his work mechanically, to extend that privilege to any other manufacturer on payment of the specified royalty. This scheme is practically modeled on what was known as the Pearsall-Smith royalty plan, which, as proposed for books, was stoutly fought by the proponents of the copyright act of 1891, throughout that memorable copyright campaign. ”

“ One can imagine, if barely, a case in which, though federal jurisdiction would lie because a copyright issue was unavoidable, the heart of the case lay elsewhere and a more suitable statute of limitations than the one in the Copyright Act could be found. ”

“ A publishing contract sometimes provides that after a specified time from date of publication, as two or five years, if the publishers consider that the public demand does not justify continuing publication, or for other reasons, they may offer to surrender their publishing rights on compensation for the plates, as at half cost, and remaining copies, as at cost, and if the author does not elect to accept this offer, then the publishers may sell copies on hand free from royalty and terminate the agreement, the copyright reverting to the author. ”

“ It was supposed for a long time that this statute had not interfered with any rights that authors might possess at common law, and in the oft-cited case of Millar vs. Taylor in 1769, in regard to a reprint of Thomson's "Seasons," a majority of the [Pg 6] judges of the King's Bench (including among them Lord Mansfield) gave it as their opinion that the act was not intended to destroy, and had not destroyed, copyright at common law, but had simply protected it more efficiently during the periods specified. ”

“ In general, subject to certain conditions and limitations, as soon as authorized phonorecords of a work have been publicly distributed, anyone could make phonorecords and distribute them to the public by following a compulsory licensing procedure and paying to the copyright owner a specified royalty. Under the Senate bill, the royalty would be payable on each record ‘‘manufactured and distributed,’’ and would amount to two and one-half cents per composition, or one-half cent per minute of playing time, whichever is larger. ”

“ Courts are more likely to find an infringement when the copyright owner incurs financial harm due to unauthorized or uncompensated copying. In 1985, the Supreme Court called the fourth factor the most important element of fair use. ”

“ The judicial doctrine of fair use, one of the most important and well-established limitations on the exclusive right of copyright owners, would be given express statutory recognition for the first time in section 107. The claim that a defendant’s acts constituted a fair use rather than an infringement has been raised as a defense in innumerable copyright actions over the years, and there is ample case law recognizing the existence of the doctrine and applying it. ”

“ While the propriety of these decisions has been the subject of a good deal of controversy among legal writers, it seems now to be considered the settled law of this country and England that the right of an author to a monopoly of his publications is measured and determined by the copyright act, in other words, that, while a right did exist by common law, it has been superseded by statute. ”

“ While it is true that the property in copyright in this country is the creation of statute, the nature and character of the property grows out of the recognition of the separate ownership of the right of copying from that which inheres in the mere physical control of the thing itself, and the statute must be read in the light of the intention of Congress to protect this intangible right as a reward of the inventive genius that has produced the work. ”

“ Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public—a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not. ”

“ Although PRO raises a serious constitutional concern with permitting private ownership of standards essential to understanding legal obligations, we think it best at this juncture to address only the statutory fair use issue—which may provide a full defense to some, if not all, of the SDO’s infringement claims in this case—and leave for another day the question of whether the Constitution permits copyright to persist in works incorporated by reference into law. ”

“ Every delegation of rulemaking authority presents some risk of regulatory capture, and it is possible, albeit unlikely, that the Librarian’s power might be subject to abuse. For example, suppose the Librarian interceded on behalf of a powerful movie studio to declare non-terminable a license, like Siegel and Shuster’s, upon which the studio had built a lucrative franchise. [380] The amended statute’s reference to licenses that “grant copyright rights to the public at large” ought to ensure that such a misapplication of the agency’s power does not survive judicial review. ”

“ C. Fair Use and Interbranch Partnership There is precedent for the courts exercising their substantial policymaking powers in the domain of copyright to craft judge-made exceptions to liability based on public policy considerations even where the literal text of the statute seems to require a finding of infringement. Two features of copyright law in particular support an ongoing judicial role in recognizing exceptions to liability. First, copyright infringement is a strict liability offense ”

“ No right of eminent domain in respect to copyrights is asserted by the United States, and the provision means only that material, otherwise copyrightable, furnished by a public officer or otherwise to the Government, becoming the property of the Government, is put freely at the service of the people. ”

“ An author is entitled to the benefit of every right afforded by copyright law, but only 'upon complying with the provisions of' that law. Congress has provided for a grant of monopoly privileges under copyright for a term which may extend by renewal to fifty-six years for those who do comply. Petitioner having conceded that it disobeyed a plain requirement of the Act designed to inform and protect the public, I cannot agree that it should recover damages under the very law it admittedly disobeyed. ”

“ Common law copyright protection for works coming within the scope of the statute would be abrogated, and the concept of publication would lose its all-embracing importance as a dividing line between common law and statutory protection and between both of these forms of legal protection and the public domain. ”

“ Answering yes, the district court granted partial summary judgment in favor of the private organizations that brought this suit and issued injunctions prohibiting all unauthorized reproduction of their works. In doing so, the court held that, notwithstanding serious constitutional concerns, copyright persists in incorporated standards and that the Copyright Act’s “fair use” defense does not permit wholesale copying in such situations. ”

“ While the nature of the property and the protection intended to be given the inventor or author as the reward of genius or intellect in the production of his book or work of art is to be considered in construing the act of Congress, it is evident that to secure the author the right to multiply copies of his work may be said to have been the main purpose of the copyright statutes. ”

“ Section 4967 gives an action for damages for printing or publishing any manuscript without the consent of the author or proprietor.
Section 4970 provides for injunctions in copyright cases in the circuit and district courts of the United States, by bill in equity, to prevent the violation of any right secured by the laws respecting copyrights, according to the course and principles of courts of equity, on such terms as the court may deem reasonable. ”

“ Open-content licenses preserve a commons of informational works because it is well settled (as Jacobsen illustrates) that the author of a work may attach enforceable conditions to authorized uses of the work. [301] There is no comparably settled doctrine, however, in favor of the making of a permanent and non-terminable license of rights under copyright. The statute, to the contrary, expressly circumscribes private action to create a non-terminable license. ”

“ Reflecting copyright’s balance between private ownership and public welfare, the Act has long recognized that certain “fair use [s] ” of a copyrighted work do not constitute infringement. Id. § 107. Not all uses of a copyrighted work are “within the exclusive domain of the copyright owner,” the Supreme Court has explained, “some are in the public domain.” ”

“ History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime. As earlier recounted, see supra, at 194, the First Congress accorded the protections of the Nation’s first federal copyright statute to existing and future works alike. ”

“ Rather, courts should (as the Supreme Court did in both Sony and Grokster) consult the purposes behind the statutory language in one statute and ask whether the purpose justifies reading the other statute in a parallel fashion.
The Patent Act’s abandonment provisions exist to protect, in the Supreme Court’s words, “the unquestionable right of every inventor to confer gratuitously the benefits of his ingenuity upon the public.” [349] Copyright policy provides no basis to deny authors the opportunity to confer a similar public benefit. ”

“ Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction or interdict, damages, accounts, and otherwise, as are or may be conferred by law for the infringement of a right. ”

“ The question we are to consider is whether the publication of the defendant infringes the copyright of the complainants, and we think it does not. A copyright gives the author or the publisher the exclusive right of multiplying copies of what he has written or printed. ”

“ I can conclude only that Congress, like the Register, intended to rely on the fair use doctrine, and not on a per se exemption for private use, to separate permissible copying from the impermissible. [16]
When Congress intended special and protective treatment for private use, moreover, it said so explicitly. One such explicit statement appears in § 106 itself. The copyright owner’s exclusive right to perform a copyrighted work, in contrast to his right to reproduce the work in copies, is limited. ”

“ When the copyright owner seeks summary judgment, the burden of proving the defense, according to the court, is with the defendant. The College Entrance Examination Board opinion is contrary to the statute and the Supreme Court’s Harper & Row opinion: the burden of proving fair use is always on the party asserting the defense, regardless of the type of relief sought by the copyright owner. ”

“ But before you start sweating, consider some other aspects of copyright law that work in favor of defendants. Even if a court finds that there was an infringement, statutory damages may be reduced significantly if the defendant was an “innocent infringer,” someone who was not aware of and had no reason to believe that his or her acts were infringing. When this is the case, a court has discretion to reduce statutory damages to as little as $200. ”

“ Far from providing evidence that copyrighting works in the public domain is within the traditional contours of copyright protection, the fact that individuals were forced to resort to the uncommon tactic of petitioning Congress demonstrates that this practice was outside the normal practice. ”