Copyright law

“ The public will foot all the bills without any more advantage to themselves than they have under existing law.
The assertion made in support of the bill, that it relates only to the future, is completely met with the reply that the bill does not provide for the future of anyone who is outside of the combination.
If the existing copyright law is bad or insufficient and anything like a revision of or a codification of the copyright statutes in a new law must be made in the interests of justice, let it be done. But let care be taken that you do not do injustice. ”

“ When the legislative or judicial chords are plucked it is in fact the People’s voice that is heard. Not surprisingly, then, for purposes of copyright law, this means that the People, as the constructive authors are also the owners of the law. And in this way, any work of which the People are the constructive authors is intrinsically public domain material and is freely accessible to all so that no valid copyright can ever be held in it.
The concept of popular sovereignty is deeply rooted in our politics, our law, and our history. ”

“ The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879) . Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. ”

“ B. Copyright, Statutory Interpretation, and the DMCA If, as I have argued, it is correct to interpret the DMCA as a copyright statute, rather than as a sui generis regulatory regime unmoored from the broader corpus of intellectual property law, one practical implication is a relatively greater policymaking role for the courts. Although the development of federal copyright law has rested partly upon a series of statutory enactments, [184] the copyright statutes have always left the courts with substantial policymaking responsibilities. ”

“ 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. ”

“ Although licensing instruments exist that are designed to provide clear and unequivocal manifestations of intent to abandon copyright, those instruments, too, may not be fully effective in the United States. This background illuminates the multiple difficulties entailed in escaping from the strongly proprietary paradigm of existing copyright law. ”

“ It was, however, determined, both in the conferences and by the Congressional Committees, to omit as far as practicable from the copyright law all questions of business relationship, and to leave these to specific contracts between author and publisher or to the general provisions of law. The law, whether as to copyright or other matters, should afford a basis of certainty for business, but it cannot wisely interfere with freedom of contract between the parties to a business transaction. ”

“ To treat the transfer of any one of the various rights conferred by the Copyright Law as a sale would accord not only with analysis of their essential character and the scheme of the Copyright Law, but with the way these rights are treated by authors and purveyors of products of the mind for whose protection the Copyright Law was designed because of the belief that the interests of society would be furthered. ”

“ First, assume that a work is protected by copyright—even if it does not include a copyright notice—unless you know it’s in the public domain. Second, copyright notices that purport to tell you what you may or may not do can’t limit your fair use rights or other rights under the Copyright Act, but they may allow you to do more than the law would otherwise permit. Third, if you agree by contract not to use a work in a particular way, you will abide by the contract. ”

“ Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public; they are difficult for the courts to interpret and impossible for the Copyright Office to administer with satisfaction to the public. ”

“ Consider, for example, the functionality principle, which rests upon the dichotomy long recognized in copyright law between idea and expression. The familiar general rule is that, even where copyright protects a work, copyright protection does not extend to aspects of the work that are predominantly functional rather than expressive. [177] Courts applying this principle have declined to extend copyright protection to portions of computer software [178] or other articles [179] that reflect predominantly functional, rather than expressive or creative, concerns. ”

“ 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. ”

“ It is under this rule that the greater number of the mooted questions in the application of copyright law have arisen in respect to the scope of copyright. Most of these specific rights are in fact necessary inferences from the statute, in the protection of the property rights therein conferred, but the courts will not go beyond fair construction of the letter of the statute. ”

“ Well, copyright law and fair-use takes into account the notion of market harm, that one of the factors that a court would look at in determining whether a use is a fair one, is the harm to the market for the original work. ”

“ These possibilities may well terrorize all persons interested in copyrightable property of any description.
Finally, I say from long experience that it is a mistaken kindness to make copyright litigation easy. The protection of the copyright law is chiefly moral. Remedies for actual wrongs committed are in most cases illusory. A copyright suit should never be brought except for the most serious reasons and to protect large business interests.
I believe, therefore, that section 32 should be eliminated altogether from this bill, unless it is thought necessary to retain the first paragraph ”

“ 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 ”

“ 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. ”

“ Creating a commons of freely reusable works can be accomplished only with licenses that constrain the commons-defeating features of current law. The default positions of copyright law tend to reflect assumptions that emphasize individual production under a strongly proprietary regime. ”

“ The Copyright Office denied the application on the basis that the work “lack [ed] the human authorship necessary to support a copyright claim,” noting that copyright law only extends to works created by human beings. ”

“ For greater certainty, it is deemed always to have been the law that a right of action for infringement of copyright may be assigned in association with the assignment of the copyright or the grant of an interest in the copyright by licence. ”

“ Most UK GLAMs are incredibly risk averse when managing in-copyright collections and view misinterpreting or ‘breaking’ the law as a risk in itself. Although in-copyright collections are outside the report’s scope, it is important to note these overcautious and deeply situated practices also shape interpretations of laws relevant to public domain collections and the obligations of public bodies. Whether copyright arises during the reproduction of public domain works is an unresolved question of law that impedes access to the public domain and public sector information. ”

“ First, and most fundamentally, all open-content licenses authorize otherwise unlawful conduct: that is, they expressly permit users of the licensed works to perform actions that would otherwise infringe the licensor’s copyright. Absent authorization (or other legal excuse such as fair or de minimis use) , reproducing, [27] distributing, [28] or modifying [29] a work infringes the author’s copyright. Open-content licenses make such otherwise infringing activities lawful and thereby facilitate uses of works that federal law would ordinarily prohibit. ”

“ The person who associated a work with this deed has dedicated the work to the public domain by waiving all of their rights to the work worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law. You can copy, modify, distribute and perform the work, even for commercial purposes, all without asking permission. ”

“ But in [Pg 225] making copyright a sequent to publication (sec. 9) and providing (sec. 2) "that nothing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work," it makes it at least probable that the author of an artistic or cognate work who simply exhibits, does not surrender the right to copyright. ”

“ To defeat a claim of fair use, the copyright holder must point to market harm that results because the secondary use serves as a substitute for the original work. See Campbell, 510 U.S. at 591, 114 S.Ct. 1164 (“cognizable market harm” is limited to “market substitution”) ; see also NXIVM Corp. v. Ross Inst., 364 F.3d 471, 481–82 (2d Cir.2004) .
B.
As discussed above, the Libraries permit three uses of the digital copies deposited in the HDL. We now consider whether these uses are “fair” within the meaning of our copyright law. ”

“ This means that if you research a copyright question, you need only use federal sources of law such as the United States Code and decisions from federal courts.
Copyright does not place an author’s work in a lockbox. The primary purpose of copyright is not to compensate creators. The U.S. Supreme Court has stated, many times, that copyright is a means to a greater societal end: the dissemination and promotion of knowledge. [10] As librarians, we promote the dissemination of knowledge. ”

“ In reality, there are considerable levels of anxiety around the application of laws and the desire to comply and respect rights. Yet traditional copyright policies that treat in-copyright and public domain materials together and use dense legalese generally place the onus on the user to ensure no infringements of law occur. This assumes significant knowledge and understanding of the user. Such policies can become barriers to access and reuse, regardless of what their individual terms permit or prohibit. ”

“ Most of them, I think, except those who are purely authors and creators, like the arts associations, have at some time or other been on each side of a copyright controversy. In their business some of them are owners of copyrights and desire to enforce their copyright as far as possible, and most of them are also desirous at times of using literary or artistic matter which is protected by copyright, and they desire that the law shall be precise, so that they can understand their rights and not unwittingly be guilty of offense. ”

“ 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. ”

“ The copyright under the new law protects (sec. 3) "all the copyrightable component parts of the work copyrighted." The practice of some publishers in copyrighting a magazine and also specific articles or engravings seems, therefore, a work of doubtful expediency. The new law specifically gives to the proprietor of " composite works or periodicals" (sec. 3) "all the rights in respect thereto which he would have if each part were individually copyrighted." ”

“ Any creator is free to draw from public-domain materials and to incorporate them into her own creation. [35] A growing literature recognizes the beneficial effects on creative production from the existence and availability of freely usable public-domain works. By reducing the costs creators must pay to reuse others’ creations in their own, a rich commons pays public dividends in the form of greater production of expressive works. [36] As discussed below, however, changes to U.S. copyright law over the past three decades have tended to restrict the entry of new works into the public domain. ”