Copy Rights Convention

International
Copyright Law
William Fisher
June 23, 2004
© 2004. All rights reserved.

The Sectors of Intellectual Property Law
Patent
Copyright Patent
Copyright Patent
Trademark &
Unfair Competition
Copyright Patent
Trademark &
Right of Unfair Competition
Publicity
Copyright Patent
Trademark &
Right of Unfair Competition Trade
Publicity Secrets
Intellectual Property Protection for Industrial
Designs
Copyright Patent
Copyrights
for Useful
Objects
Trademark &
Publicity Secrets
Designs
Copyright Patent
Design
Patents
Trademark &
Publicity Secrets
Designs
Copyright Patent
Trademark &
Publicity Secrets
Trade Dress
Designs
Copyright Patent
Copyrights Design
for Useful Patents
Objects
Trademark &
Publicity Secrets
Trade Dress
Copyright Patent
Trademark &
Publicity Secrets
Basic Copyright Law
• Long-term, medium protection for “original

forms of expression”
• “Original” = independently created +
minimal degree of creativity (Feist)
• “Original” does not require novelty,
aesthetic merit, or truth
Examples of Things Protected by
Copyright
• literary works;
• musical works;
• dramatic works;
• pantomimes and choreographic works;
• pictorial, graphic, and sculptural works;
• motion pictures and audiovisual works;
• sound recordings;
• architectural works;
• compilations
• computer programs
Idea/Expression Distinction
• Not copyrightable • Copyrightable

– Ideas – Expression
– Facts – detailed plots
– "truths of a science"
– distinctive
– "methods of an art"
characters
– "system of
bookkeeping"
– generic plots
– generic characters
– research
Statutory Entitlements
(1) Reproduction
(2) Derivative Works
(3) First Distribution
(4) Public Performance
(5) Public Display
Proving Infringement
• Copying
– Defendant’s admission
– Evidence of access + similarities
– “striking similarity”
– common errors
• “Improper Appropriation”
– “substantial similarity of expression”
– lay audience test
– scenes a faire doctrine
Fair Use Doctrine
Supreme-Court Case Law

• Sony v. Universal City Studios (1984)
Compensation System for Network Broadcasts of Copyrighted Programs
Studios
Hold copyrights
in movies & shows
broadcast Studios
licenses
Hold copyrights
in movies & shows
Networks
broadcast Studios
licenses
Networks
free programming
(with embedded ads)
Public
Advertisers broadcast Studios

licenses
Networks
higher prices
for products free programming
(with embedded ads)
Public

licenses
price of ads
Networks
higher prices
(with embedded ads)
Public

licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public

licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public
VCRs
cost of VCRs Sony


licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public
VCRs
cost of VCRs Sony


licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public
VCRs
cost of VCRs Sony


licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public
VCRs
cost of VCRs Sony


licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public
VCRs
cost of VCRs Sony


licenses
price of ads
license fees
Networks
higher prices
(with embedded ads) ?
Public
VCRs
cost of VCRs Sony

Fair Use Doctrine
Supreme-Court Case Law
• Sony v. Universal City Studios (1984)
– time shifting is fair use
– manufacturing VCRs is not contributory copyright
infringement
• Harper & Row v. Nation Enterprises (1985)
– reproducing juicy excerpts of Ford’s autobiography
is not fair use
• Campbell v. Acuff-Rose (1994)
– rap parody of “Oh, Pretty Woman” is fair use
Fair Use Doctrine
• Purpose and Character of the Use
– commercial use disfavored
– transformative uses preferred
– parody strongly preferred
– propriety of defendant’s conduct relevant
• Nature of the Copyrighted Work
– fictional works/factual works
– unpublished/published
Intensity of Copyright Protection
unpublished
published
unpublished
fact fiction
published
Fair Use Doctrine
• Purpose and Character of the Use
– commercial use disfavored
– transformative uses preferred
– parody strongly preferred
– propriety of defendant’s conduct relevant
• Nature of the Copyrighted Work
– fictional works/factual works
– unpublished/published
• Amount and importance of the portion used
• Impact on Potential Market
– rival definitions of “potential market”
– only substitution effects are cognizable
Topics
• Basic Copyright Law

• International Copyright Agreements
• Case Studies
– Software Protection
– Database Protection
– Moral Rights
Topics
• Basic Copyright Law

• International Copyright Agreements
• Case Studies
– Software Protection
– Database Protection
– Moral Rights
Major Agreements
(Potentially) Global Agreements:
 Berne Convention (1886-1971)
 Universal Copyright Convention (1952)
 WIPO Copyright Treaty (1996)
 TRIPS (1994)
 Rome Convention (1961)
Regional Agreements
 EC Directives
 NAFTA (1992)
Bilateral Agreements
 E.g., US/Germany – Atlas Films
Berne Convention -- chronology
• 1858-1885: Preliminary negotiation
• 1886: Original Berne Convention (10
countries)
• 1896: Paris Revision (13)
• 1908: Berlin Revision (18)
• 1914: Berne Revision (27)
• 1928: Rome Revision (36)
• 1948: Brussels Revision (37)
• 1967: Stockholm Revision (59)
• 1971: Paris Revision (63)
10 countries
Berne Convention -- 1886
• National treatment
– Signatories give citizens of other signatories same
treatment as their own citizens
– Except as to term of protection
• Protected Works:
– books; pamphlets; drama; music; design; painting;
sculpture; maps; 3D works in geography and
architecture
– No protection for photos; political articles; news
• Exclusive rights:
– 10-year translation right
13 countries
– Signatories give citizens of other signatories same
treatment as their own citizens
– books; pamphlets; drama; music; design; painting;
sculpture; maps; 3D works in geography and
architecture
– No protection for photos; political articles; news
– translation right for term of original work
18 countries
– Signatories give citizens of other signatories same treatment
as their own citizens
• No formalities as condition of protection
– books; pamphlets; drama; music; design; painting; sculpture;
maps; 3D works in geography and architecture; photos;
choreography; architecture
– No protection for political articles; news
– translation right for term of original work; recording right for
music; cinematograhic right
27 countries
– Discrimination against authors from non-member
countries permitted
choreography; architecture
music; cinematograhic right
36 countries
– Discrimination against authors from non-member countries
permitted
choreography; architecture; lectures
music; cinematograhic right; moral right; broadcasting
right; adaptation right
36 countries
permitted
Varieties of “Moral Rights”
• Integrity
• Attribution
• Divulgation
• Withdrawal
• Droit de Suite
Article 6 bis of the Berne
Convention:
“Independently of the author's economic
rights, and even after the transfer of the
said rights, the author shall have the
right to claim authorship of the work and
to object to any distortion, mutilation or
other modification of, or other
derogatory action in relation to, the said
work, which would be prejudicial to his
honor or reputation.”
36 countries
permitted
37 countries
permitted
music; cinematograhic right; moral right; broadcasting right
(TV); adaptation right; public performance right; optional
droit de suite
• Minimum term: LOA + 50 years
59 countries
Stalemate on substance

permitted
music; cinematograhic right; moral right; broadcasting right
(TV); adaptation right; public performance right; optional
droit de suite
• Formation of WIPO
63 countries
– Signatories give citizens of other signatories same treatment as their
own citizens
– Discrimination against authors from non-member countries permitted
– books; pamphlets; drama; music; design; painting; sculpture; maps;
3D works in geography and architecture; photos; choreography;
architecture; lectures; folklore; legitimation system for films
– translation right for term of original work; recording right for music;
cinematograhic right; moral right; broadcasting right (TV); adaptation
right; public performance right; optional droit de suite; reproduction
right
63 countries
own citizens
right
http://www.wipo.org/treaties/ip/berne/index.html currently 150 countries
own citizens
right
http://www2.unesco.org/clt-bv/html_eng/01universalcopy.htm
36 countries
Universal Copyright Convention

(1952; revised 1971)
• National Treatment principle
• Members must provide “adequate and
effective protection” for copyright
• Formalities permitted as precondition for
protection
• Minimum term: LOA + 25
• Exceptions permitted that do not “that do not
conflict with the spirit and provisions of this
Convention”
40 countries
Rome Convention (1961)

• Performers’ rights include: broadcast of a
performance; fixation of a performance;
reproduction of a fixation
• Producers of phonograms have exclusive
rights to reproduce them
• Broadcasters have exclusive rights to fix or
reproduce fixations of their broadcasts
• Article 12: Performers and producers must
be paid “equitable remuneration” when
phonograms are broadcast
• Minimum term: 20 years
http://www.wipo.org/treaties/ip/rome/ currently 76 countries
Rome Convention (1961)

• Performers’ rights include: broadcast of a
performance; fixation of a performance;
reproduction of a fixation
• Producers of phonograms have exclusive
rights to reproduce them
• Broadcasters have exclusive rights to fix or
reproduce fixations of their broadcasts
• Article 12: Performers and producers must
be paid “equitable remuneration” when
phonograms are broadcast
• Minimum term: 20 years
Other “Neighboring Rights” Agreements
• Geneva Phonograms Convention

(1971)
• Brussels Satellite Convention (1974)
• WIPO Performances and Phonograms
Treaty (1996)
currently 146 countries
TRIPS -- Copyright
• Article 9:
– Incorporate Berne Convention, Arts. 1-21,
except 6bis
– Idea/expression distinction
• Article 10:
– Computer programs protected (both source
and object code)
– Intellectually creative aspects of databases
protected – not data itself
TRIPS -- Copyright
• Article 11:
– Authors of computer programs and films
may authorize or forbid commercial rentals
• Article 12:
– Minimum terms for works not tied to LOA is
50 years
• Article 13:
– Exceptions shall be limited to cases that do
not conflict with normal exploitation or
unreasonably prejudice legitimate interests
TRIPS -- Copyright
• Article 14:
– Performers control fixation and broadcasts
– Producers of phonograms control
reproduction and commercial rentals
– Broadcasters control fixation, reproduction,
rebroadcasts
– Performers and producers get minimum
term of protection of 50 years
– Exceptions permitted to extent of Rome
Convention
Sore Spots in International Copyright
Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Software
• Public Performances
• Neighboring Rights
• Government documents
• Fair Use
• Moral Rights
Law
• Authorship
• Creativity
• Territoriality Principle
Duration
• Useful Objects Treatment of
• Software “works for hire”;
• Public Performances Priority rules
• Fair Use
• Moral Rights
Law
• Authorship
• Creativity
• Duration Feist (US)
• Useful Objects Tele-Direct (Canada)
• Software Schricker (Germany)
• Fair Use
• Moral Rights
Law
• Authorship
• Creativity
• Duration
• Useful Objects Territoriality Principle
• Software --Atlas Film (Germany)
• Public Performances UCC, art. IV
• Neighboring Rights Berne, art. 7(8)
• Government documents EC Term Directive
• Fair Use --LOA + 70
• Moral Rights Sonny Bono
--LOA + 70; Eldred
Law
• Authorship
• Creativity
• Duration
• Useful Objects Utility Models;
• Software Conceptual Separability;
• Public Performances Overlap with creativity
• Neighboring Rights requirements
• Fair Use
• Moral Rights
Law
• Authorship
• Creativity
• Duration
• Useful Objects Utility Models;
• Software Conceptual Separability;
• Public Performances Overlap with creativity
• Neighboring Rights requirements
• Fair Use
• Moral Rights
Law
• Authorship
• Creativity
• Duration
• Useful Objects CONTU (US)
• Software EC Software Directive
• Public Performances TRIPS Art. 10
• Fair Use
• Moral Rights
Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Berne Arts. 2, 11bis
Software
• Public Performances Rome Art. 12;
• Neighboring Rights 1992 EC Directive;
• Government documents DPRA & DMCA (US)
• Fair Use CARP (US)
• Moral Rights
Law
• Authorship
• Creativity
• Duration
• Useful Objects
• European blank-
Software
• Public Performances tape systems;
• Neighboring Rights Sound recordings
• Fair Use
• Moral Rights
Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Software
• Public Performances Germany, Japan,
• Neighboring Rights & US withhold ©
• Government documents Great Britain: Crown
• Fair Use and Parliamentary
• Moral Rights copyright
Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Software
• Is TRIPs compatible
Neighboring Rights
• Government documents with US fair use?
• Fair Use
• Moral Rights Should TRIPs
mandate fair use?
Fair Use?
Berne Convention, Article 10

(1) It shall be permissible to make quotations from a work which has
already been lawfully made available to the public, provided that
their making is compatible with fair practice, and their extent does
not exceed that justified by the purpose, including quotations from
newspaper articles and periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and
for special agreements existing or to be concluded between them,
to permit the utilization, to the extent justified by the purpose, of
literary or artistic works by way of illustration in publications,
broadcasts or sound or visual recordings for teaching, provided
such utilization is compatible with fair practice.
Fair Use?
Berne Convention, Article 10

(1) It shall be permissible to make quotations from a work which has
already been lawfully made available to the public, provided that
their making is compatible with fair practice, and their extent does
not exceed that justified by the purpose, including quotations from
newspaper articles and periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and
for special agreements existing or to be concluded between them,
to permit the utilization, to the extent justified by the purpose, of
literary or artistic works by way of illustration in publications,
broadcasts or sound or visual recordings for teaching, provided
such utilization is compatible with fair practice.
Fair Use?
Berne Convention, Article 10bis

(1) It shall be a matter for legislation in the countries of the Union to permit
the reproduction by the press, the broadcasting or the communication to
the public by wire, of articles published in newspapers or periodicals on
current economic, political or religious topics, and of broadcast works of
the same character, in cases in which the reproduction, broadcasting or
such communication thereof is not expressly reserved. Nevertheless, the
source must always be clearly indicated; the legal consequences of a
breach of this obligation shall be determined by the legislation of the
country where protection is claimed.
(2) It shall also be a matter for legislation in the countries of the Union to
determine the conditions under which, for the purpose of reporting current
events by means of photography, cinematography, broadcasting or
communication to the public by wire,literary or artistic works seen or heard
in the course of the event may, to the extent justified by the informatory
purpose, be reproduced and made available to the public.
Fair Use?
Berne Convention, Article 10bis

(1) It shall be a matter for legislation in the countries of the Union to permit
the reproduction by the press, the broadcasting or the communication to
the public by wire, of articles published in newspapers or periodicals on
current economic, political or religious topics, and of broadcast works of
the same character, in cases in which the reproduction, broadcasting or
such communication thereof is not expressly reserved. Nevertheless, the
source must always be clearly indicated; the legal consequences of a
breach of this obligation shall be determined by the legislation of the
country where protection is claimed.
(2) It shall also be a matter for legislation in the countries of the Union to
determine the conditions under which, for the purpose of reporting current
events by means of photography, cinematography, broadcasting or
communication to the public by wire,literary or artistic works seen or heard
in the course of the event may, to the extent justified by the informatory
purpose, be reproduced and made available to the public.
Fair Use?
TRIPS, Article 13
Members shall confine limitations or exceptions
to exclusive rights to certain special cases
which do not conflict with a normal exploitation
of the work and do not unreasonably prejudice
the legitimate interests of the right holder.
Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Software
• Is TRIPs compatible
Neighboring Rights
• Government documents With US fair use?
• Fair Use
• Moral Rights Should TRIPs
Mandate fair use?
Law
• Authorship Issues include:

• Creativity Duration;
• Duration Alienability;
• Preconditions to
Useful Objects
integrity right;
• Software Responsibility
• Public Performances of heirs/devisees
• Government documents Berne 6bis
• Fair Use TRIPS exclusion
• Moral Rights
Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Software
• Fair Use
• Moral Rights
Law
• Authorship
• Creativity
• drive toward
Duration
• Useful Objects harmonization
• Software by selecting most
• Public Performances author-protective
• Neighboring Rights option on each
• Government documents issue
• Fair Use
• Moral Rights
Possible Goals of International
Copyright
• Political Democracy (Netanel)
• Economic Efficiency
– Reducing barriers to free trade
• Cultural Vitality
– Semiotic democracy
• Distributive Justice
– Distribute justice across countries
– Egalitarianism (economic democracy)
– Respect artists’ rights
– Respect natural rights
• Universal Right to education
Dahl’s definition of Political Democracy
1. Elected officials govern

2. Frequent and fair elections
3. Universal adult suffrage
4. Universal qualification for elective office
5. Freedom of expression
6. Available alternative sources of
information
7. Freedom of association
Dahl’s definition of Political Democracy
1. Elected officials govern

2. Frequent and fair elections
3. Universal adult suffrage
4. Universal qualification for elective office
5. Freedom of expression
6. Available alternative sources of
information
7. Freedom of association
Possible Causal Connections
Democracy-
enhancing
Democracy-
consolidatin
g
Democracy-
inducing
Democracy- Impact of Copyright

enhancing • Foster free flow of
information and
Democracy- diversity of
consolidatin expression
g • Promote
independent sector
Democracy- of artists &
inducing publishers
• Venerate individual
innovation and
Democracy- Impact of Copyright

enhancing • Foster free flow of
information and
Democracy-
? diversity of
consolidatin expression
g ? • Promote
independent sector
? of artists &
Democracy-
inducing publishers
• Venerate individual
innovation and
Embodiments of the “Democratic
Entitlement”
• ICCPR
• ECHR
• Charter of OAS
• ACHR
• African Charter on Human and People’s
Rights
• Charter of Paris
• Moscow Document
• International Covenant on Economic, Social
and Cultural Rights (ICESCR)
Implications of the Democracy /
Free Speech Principles
• Compel countries not members of Berne or
WTO to adopt copyright systems
• Mandatory limits on copyright:
– Temporal limits
– Idea/fact/expression distinction
– Some fair-use exceptions
– Exception for transient, incidental reproduction
– No prior restraints or punitive damages
• Interpret Berne/TRIPS provisions
– E.g., Art. 13
– Permissible “cultural exceptions”
Legal Protection
for Databases
What is a Database?
• WIPO Draft Treaty Definition: “‘database’ means a
collection of independent works, data or other
materials arranged in a systematic or methodical
way and capable of being individually accessed by
electronic or other means”
• Examples:
– nationwide telephone directory
– compilation of financial data on companies
– Lexis/Nexis compilation of public-domain materials
Possible Sources of Legal Protection
• Copyright
• Misappropriation Doctrine
• Contract
• Sui Generis Legislation or Treaty
• Encryption/Anti-“Black Box” Legislation
• Trespass Doctrine
• Branding – e.g., Lexis; Westlaw
• Copyright
• Contract
To secure copyright protection for a
database, one must show:
• DB is within subject matter coverage
• DB is fixed in a tangible medium of
expression
• DB is sufficiently “original”
– Feist problem
– TRIPS Article 10(2)
• Copyright
• Contract
INS v. AP (1918)
Constriction Expansion
• Cheney Bros. (CA2
• Radio broadcast cases
1929) (1932-1955)
• Metropolitan Opera (NY
• Erie RR (1938) 1950)
• Pottstown News (PA
1963)
• NFL v. Del. (1977) • Bond Buyer (NY 1966)
• Dow Jones (Ill 1983)
• US Sporting Products
• NBA (1997) (Tex 1993)
• Lynch, Jones (NY 1998)
• Alcatel (1999)
• Internet “framing” cases?
Facts of NBA (1997)
NBA game
Facts of NBA (1997)
NBA game
Live audience
TV audience
Radio Audience
Facts of NBA (1997)
NBA game
Live audience
TV audience (STATS reporters)
Radio Audience (STATS reporters)

Facts of NBA (1997)
NBA game
Live audience
STATS computer
Facts of NBA (1997)
NBA game
Live audience
STATS computer
Satellite
Facts of NBA (1997)
NBA game
Live audience
Motorola pagers STATS computer
Satellite
Facts of NBA (1997)
NBA game
Live audience
Users Motorola pagers STATS computer
Satellite
NBA (CA2 1997)
A “hot news” misappropriation claim
survives preemption iff:
• P generates or creates information at
some cost
• Information is highly time-sensitive
• D “free rides” on P’s efforts
• D competes directly with P
• such free-riding would threaten the
existence or quality of the service P
provides
• Copyright
• Contract
Contract
• Use Restrictions in Ordinary Contracts or

Licenses
• Shrink-wrap licenses
– ProCD
Excerpt from Martindale-Hubbell
Website
"You are hereby granted a nonexclusive,
nontransferable, limited license to view, reproduce,
print, and distribute insignificant portions of materials
retrieved from this Site provided (a) it is used only for
informational, non-commercial purposes, (b) you do
not remove or obscure the copyright notice or other
notices. Except as expressly provided above, no part
of this Site, including but not limited to materials
retrieved therefrom and the underlying code, may be
reproduced, republished, copied, transmitted, or
distributed in any form or by any means. In no event
shall materials from this Site be stored in any
information storage and retrieval system without prior
written permission Martindale-Hubbell."
Excerpt from Martindale-Hubbell
Website
"You are hereby granted a nonexclusive,
nontransferable, limited license to view, reproduce,
print, and distribute insignificant portions of materials
retrieved from this Site provided (a) it is used only for
informational, non-commercial purposes, (b) you do
not remove or obscure the copyright notice or other
notices. Except as expressly provided above, no part
of this Site, including but not limited to materials
retrieved therefrom and the underlying code, may be
reproduced, republished, copied, transmitted, or
distributed in any form or by any means. In no event
shall materials from this Site be stored in any
information storage and retrieval system without prior
written permission Martindale-Hubbell."
Limitations of Contractual Protection
Creator
Purchaser
contract with
valid restraints
on use and
alienation
Creator
Purchaser
contract with
valid restraints
on use and
alienation Rival
conveyance
without
restrictions
Creator
Purchaser
contract with
valid restraints
on use and
alienation Rival
conveyance
without
restrictions distribution Public
--e.g., over
internet
breach of contract
Creator (damages and injunction)
Purchaser
contract with
valid restraints
on use and
alienation Rival
conveyance
without
--e.g., over
internet
Creator claim for tortious interference

with contractual relations?
Purchaser
contract with
valid restraints
on use and
alienation Rival
conveyance
without
--e.g., over
internet
Creator No practical remedy
Purchaser
contract with
valid restraints
on use and
alienation Rival
conveyance
without
--e.g., over
internet
• Copyright
• Contract
Efforts to Secure Sui Generis
Protection
• EC Directive 96/9
• Federal legislation in the United States
EEC Directive 96/9 -- Coverage
• Applies to any “collection of independent works,
data or other materials arranged in a systematic or
methodical way and individually accessible by
electronic or other means."
• Plaintiff must prove: “that there has been
qualitatively and/or quantitatively a substantial
investment in either the obtaining, verification or
presentation of the contents”
EC Directive 96/9 -- Entitlements
• No unauthorized extraction or
reutilization of any part of the database
• “Extraction” = “the permanent or temporary
transfer of all or a substantial part of the
contents of a database to another medium by
any means or in any form”
• “Reutilization” = “any form of making available
to the public all or a substantial part of the
contents of a database by the distribution of
copies, by renting, by on-line or other forms of
transmission.”
• No first-sale doctrine
• No compulsory licenses
EC Directive 96/9 -- Privileges
• Copying of “insubstantial” portions for any

purpose
– unless it conflicts with the “normal
exploitation” of the DB
• Member states may permit extraction or
reutilization for noncommercial teaching or
scientific research if credit is given
• Member states may permit extraction or
reutilization of “substantial” portions for
“private purposes”
EC Directive 96/9 -- Duration
• 15 years
• additional 15 years each time the
database is “substantially modified”
Proposals for American Sui-Generis
Legislation
• 104th Congress: Database Investment
and Intellectual Property Antipiracy Act of
1996
• 105th Congress: HR 2652 passed the
House; S 2291 died in Senate
• 106th Congress: Two House bills
pending:
– HR 354: Collections of Information Antipiracy
Act, introduced 1/19/99; approved by House
Judiciary Comm.
– HR 1858: Comsumer and Investor Access to
H.R. 354
• Protected databases include:
information that has been collected and
has been organized for the purpose of
bringing discrete items of information
together in one place or through one
source so that users may access them
– specific exception for works of narrative
literary prose, but inclusion of collections of
such works
H.R. 1858
• Protected databases include: a collection of
discrete items of information that have been
collected and organized in a single place, or in
such a way as to be accessible through a single
source, through the investment of substantial
monetary or other resources, for the purpose of
providing access to those discrete items of
information by users of the database.
– However, a discrete section of a database that contains
multiple discrete items of information may also be
treated as a database.
H.R. 354
• Information: facts, data, works of
authorship or any other intangible
material capable of being gathered and
organized in a systematic way
– specifically includes works of authorship in
definition, but states that it does not
provide any greater protection than
copyright to works of authorship included in
collections, other than a work that is itself a
collection
H.R. 1858
• Information: facts, data, or any other
intangible material capable of being
collected or organized in a systematic
way, with the exception of works of
authorship
H.R. 354
• Exclusions:
– Government databases
– real-time market information
– computer programs
– databases for facilitating digital online
communications
H.R. 1858
• Exclusions:
– Government databases
– computer programs
– databases to facilitate internet communications
– Nonprotectable subject matter: individual ideas,
facts, procedures, systems, methods of operation,
concepts, principles or discoveries
– Preexisting databases
– Works of authorship
H.R. 354
• Prohibitions:
– Making available or extracting to make
available all or a substantial part of a
collection of information, causing material
harm to the primary or related market for
the product of the other party or a
successor in interest
– Extraction of a substantial part of a
collection of information so as to cause
material harm to the primary market
H.R. 354
• Prohibitions:
– Making available or extracting to make
available all or a substantial part of a
collection of information, causing material
harm to the primary or related market for
the product of the other party or a
successor in interest
– Extraction of a substantial part of a
collection of information so as to cause
material harm to the primary market
H.R. 354
• Primary market: all markets in which the product
is offered or in which the party derives or
reasonably expects to derive direct or indirect
revenue
• Related market: [1] any market in which similar
products are offered and in which the parties
offering similar products derive or expect to derive
direct or indirect revenue or [2] any market in which
the protected party has taken demonstrable steps
to offer a product within a short period of time and
with the reasonable expectation to derive direct or
indirect revenue
H.R. 1858
• Prohibition:
– Distribution of duplicates: sale or
distribution to the public of a database that
is the duplicate of a database (substantially
the same database made by extracting the
information from the original) collected and
organized by another person, in
competition with that other database.
H.R. 1858
• Prohibition:
– Distribution of duplicates: sale or
distribution to the public of a database that
is the duplicate of a database (substantially
the same database made by extracting the
information from the original) collected and
organized by another person, in
competition with that other database.
H.R. 1858
• In competition with: the duplicate
database displaces substantial sales or
licenses of the original database and
significantly threatens the opportunity to
recover a return on the investment in
the collecting and organizing of the
database
H.R. 354
• Privileges:
– Use of Individual items of information or
insubstantial portions of the compilation
– The lawful owner of a copy of the original
collection may sell or transfer that copy
– News reporting
– Nonprofit educational, scientific or research
purposes that do not materially harm the
primary market
H.R. 354
• Privileges:
– Reasonable use for illustration, explanation,
example, comment, criticism, teaching,
research or analysis
commercial or nonprofit purpose
amount extracted appropriate to purpose
good faith
extent of incorporation into an independent work and
degree of difference between independent and
original works
development for and marketing in the same field as
the original
H.R. 1858
• Privileges:
– News reporting (except time-sensitive
material collected by a news reporting
entity when use is part of a consistent
pattern of activity engaged in for the
purpose of direct competition)
– Scientific, educational or research
purposes, if not a consistent pattern
engaged in for the purposes of direct
commercial competition
H.R. 354
• Term: Protection of information ends 15
years after original collection was first
offered in commerce, with no extension for
later changes to collection; burden of proof
is on plaintiff to show that portion of
collection to be protected is no more than
15 years old
H.R. 1858
• Term: No term of protection specified
Lobbying for H.R. 354
Pro Anti
• NYSE • Chamber of
• Real Estate Agents Commerce
• AMA • Consumers Union
• EBay • Research Libraries
• Charles Schwab
• Yahoo
• Copyright
• Contract
• Copyright
• Contract
– Bidder’s Edge v. Ebay (May 2000)
• Copyright
• Contract
– Bidder’s Edge v. Ebay (May 2000) Wednesday
• Copyright
• Contract

Copy Rights Convention

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Copyright:

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Copy Rights Convention

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Copyright:

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International

© 2004. All rights reserved.

• Long-term, medium protection for “original

• Not copyrightable • Copyrightable

Supreme-Court Case Law

Advertisers broadcast Studios

Advertisers broadcast Studios

Advertisers broadcast Studios

Advertisers broadcast Studios

cost of VCRs Sony

Advertisers broadcast Studios

cost of VCRs Sony

Advertisers broadcast Studios

cost of VCRs Sony

Advertisers broadcast Studios

cost of VCRs Sony

Advertisers broadcast Studios

cost of VCRs Sony

Advertisers broadcast Studios

cost of VCRs Sony

• Basic Copyright Law

• Basic Copyright Law

– Discrimination against authors from non-member countries

Universal Copyright Convention

• National Treatment principle

• National Treatment principle

• Geneva Phonograms Convention

Berne Convention, Article 10

Berne Convention, Article 10

Berne Convention, Article 10bis

Berne Convention, Article 10bis

• Authorship Issues include:

1. Elected officials govern

1. Elected officials govern

Democracy- Impact of Copyright

Democracy- Impact of Copyright

TV audience (STATS reporters)

Radio Audience (STATS reporters)

TV audience (STATS reporters)

Radio Audience (STATS reporters)

TV audience (STATS reporters)

Radio Audience (STATS reporters)

TV audience (STATS reporters)

Radio Audience (STATS reporters)

Motorola pagers STATS computer

TV audience (STATS reporters)

Radio Audience (STATS reporters)

Users Motorola pagers STATS computer

• Use Restrictions in Ordinary Contracts or

Creator claim for tortious interference

Creator No practical remedy

• Copying of “insubstantial” portions for any

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