Cite as: 30 U. Mem. L. Rev. 363 University of Memphis Law Review Winter, 2000 Note



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[FN7]. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 430 (1984).

[FN8]. See MARSHALL A. LEAFFER, UNDERSTANDING COPYRIGHT LAW § 1.2 (2d ed. 1995).

[FN9]. See id.

[FN10]. See Irah Donner, The Copyright Clause of the U.S. Constitution: Why Did the Framers Include it with Unanimous Approval?, 36 AM. J. LEGAL HIST. 361, 368 (1992).

[FN11]. See Statute of Anne, 1710, 8 Anne, ch. 93 (Eng.).

[FN12]. See id.

[FN13]. See id. "[A]fter the expiration of the said term of fourteen years, the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, for another term of fourteen years." Id.

[FN14]. See Donner, supra note 10, at 368.

[FN15]. Statute of Anne, 1710, 8 Anne, ch. 93 (Eng.).

[FN16]. See Donner, supra note 10, at 368.

[FN17]. See id. at 373.

[FN18]. See U.S. Const. art. I, § 8, cl. 8.

[FN19]. See Copyright Act of 1790, ch. 15, § 1, 1 Stat. 124 (1790).

[FN20]. See Berkman Center for Internet and Society, supra note 6.

[FN21]. See Copyright Act of 1790, ch. 15, § 1.

[FN22]. See William Patry, The Failure of the American Copyright System: Protecting the Idle Rich, 72 NOTRE DAME L. REV. 907, 915-16 (1997). The ability to assign the rights to the renewal term, contingent on the survival of the author until the end of the initial term, encouraged publishers to try and purchase rights to the entire time for one lump sum at the beginning of the initial term, thereby defeating the purpose of the two-tiered structure. See id.

[FN23]. See Brian A. Carlson, Balancing the Digital Scales of Copyright Law, 50 SMU L. REV. 825, 830 (1997). Brian A. Carlson explains:

On its face, the scope of copyright law ... appeared to be fairly limited, covering only maps, charts, and books. But ... Congress and the courts gave the terms "author" and "writings" an ever broadening scope.



....

The definition of "authors" and "writings" is thus much broader than the literal connotation. In the constitutional sense, an "author" means "he to whom anything owes it origin;" ... not just an individual who writes a composition. Likewise, the constitutional definition of "writings" includes "any physical rendering of the fruits of creative or aesthetic labor," and not just script or printed material. These broad definitions allow copyright law to extend to creative works in technologies that do not yet exist.



Id. (citations omitted).

[FN24]. See Copyright Act of 1790, ch. 15, § 1.

[FN25]. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 430 (1984). "From its beginning, the law of copyright has developed in response to significant changes in technology." Id.

[FN26]. See Act of Feb. 3, 1831, ch. 16, § § 1-2, 4 Stat. 436 (1831). Two significant changes made by the Act of 1831 were: 1) elimination of the ability to make contingent assignments of entire term including renewal rights concurrently with assignment of the initial term and 2) security for families of an author who died during the initial term by granting the renewal right to the surviving spouse or children. See Patry, supra note 22, at 917.

[FN27]. See Patry, supra note 22, at 916.

[FN28]. See id.

[FN29]. See Act of Mar. 4, 1909, ch. 320, 35 Stat. 1075 (1909).

[FN30]. See Jenny L. Dixon, The Copyright Term Extension Act: Is Life Plus Seventy Too Much?, 18 HASTINGS COMM. & ENT. L.J. 945, 957 (1996).

[FN31]. See Patry, supra note 22, at 918.

[FN32]. See Act of Mar. 4, 1909, ch. 320. The Supreme Court interpreted the 1909 Act to allow an author (or the beneficiary of the author's renewal term) to transfer his rights in the renewal term at any time during the original copyright term. See Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643 (1943).

[FN33]. See Jessica D. Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987). "By the 1970s, it had become clear that the 1909 Act was outdated and legislative action was imperative." Dixon, supra note 30, at 958 n.81 (citation omitted).

[FN34]. See Dixon, supra note 30, at 958; see also Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 309, 396 n.17 (1968).

[FN35]. Fortnightly, 392 U.S. at 396 (citation omitted).

[FN36]. See Dennis S. Karjala, What are the Issues in Copyright Term Extension--and What Happened? (last modified Nov. 13, 1999) .

[FN37]. See Dixon, supra note 30, at 959.

[FN38]. Id. (quoting Litman, supra note 33, at 861).

[FN39]. See Patry, supra note 22, at 921.

[FN40]. See Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified at 17 U.S.C. § § 101-808 (1994 & Supp. 1997)).

[FN41]. Dixon, supra note 30, at 959 (citing Litman, supra note 33, at 858- 59).

[FN42]. For a comparison on the differing theories of common law and natural law copyright, see infra Part II.B.3. See generally Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J. 1533 (1993).

[FN43]. See 17 U.S.C. § 302(a) (1994). "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 life of author and fifty years after the author's death." Id.

[FN44]. See id. § 304(a)(2)(B), (b).

[FN45]. See id. § 201(b). Section 201(b) provides:

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.



Id.

[FN46]. See id. § 203(a)(3).

[FN47]. See Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, revised, Paris, July 24, 1971, 25 U.S.T. 1341.

[FN48]. See generally Anne Moebes, Negotiating International Copyright Protection: The United States and European Community Positions, 14 LOY. L.A. INT'L & COMP. L.J. 301, 302-03 (1992).

[FN49]. See id. at 303.

[FN50]. See id.

[FN51]. See Berne Convention for the Protection of Literary and Artistic Works, supra note 47, at art. 7(1).

[FN52]. See id.

[FN53]. LEAFFER, supra note 8, at 351.

[FN54]. Some countries argue that the United States does not meet the minimum standard for membership in the Berne Convention because of its limited compliance with the Convention's moral rights provision. See Dixon, supra note 30, at 964 n.125; see also J.H. Reichman, The Duration of Copyright and the Limits of Cultural Policy, 14 CARDOZO ARTS & ENT. L.J. 625, 630 (1996).

[FN55]. U.S. Const. art. I, § 8, cl. 8.

[FN56]. See Patry, supra note 22, at 910.

[FN57]. U.S. Const. art. I, § 8, cl. 8.

[FN58]. See Patry, supra note 22, at 910.

[FN59]. U.S. Const. art. I, § 8, cl. 8.

[FN60]. See Marci A. Hamilton, Art and the Marketplace of Expression, 17 CARDOZO ARTS & ENT. L.J. 167, 168-69 (1999).

[FN61]. See Patry, supra note 22, at 933.

[FN62]. U.S. Const. art. I, § 8, cl. 8.

[FN63]. See Joseph A. Lavigne, Comment, For Limited Times? Making Rich Kids Richer Via the Copyright Term Extension Act of 1996, 73 U. DET. MERCY L. REV. 311, 319 (1996).

[FN64]. See id. at 312.

[FN65]. 24 JOURNALS OF THE CONTINENTAL CONGRESS 326 (Gaillard Hunt ed., 1783). This committee was established by the Continental Congress and consisted of only three members, one of whom was James Madison. See Patry, supra note 22, at 911.

[FN66]. 24 JOURNALS OF THE CONTINENTAL CONGRESS 180 (Gaillard Hunt ed., 1783).

[FN67]. See Hamilton, supra note 60, at 168-69.

[FN68]. Carlson, supra note 23, at 829 (citing Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)).

[FN69]. See id. (citing Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984)).

[FN70]. See Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 TUL. L. REV. 991 (1990).

[FN71]. Id. at 992 (quoting H. DESBOIS, LE DROIT D'AUTERE EN FRANCE 538 (3d ed. 1978)).

[FN72]. See id.

[FN73]. Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 OHIO ST. L.J. 517, 522 (1990).

[FN74]. See id. at 522-23. For example, the doctrine of ferae naturae dictates that wild animals were considered property only while in captivity, and if they escaped, they were free to be captured by someone else. See id.

[FN75]. See JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT § 27 (P. Laslett ed., 1970). Locke believed that authors had a natural property right in their bodies. Based on this assumption, Locke also believed that people owned the rights to labor from their bodies, and as a result, they had natural rights to the fruits of their labor. See id.

[FN76]. See Yen, supra note 73, at 523-24.

[FN77]. See id. at 524.

[FN78]. See id.

[FN79]. 98 Eng. Rep. 201 (K.B. 1769).

[FN80]. See id.

[FN81]. See id. at 205.

[FN82]. See id. at 202, 221, 229.

[FN83]. 1 Eng. Rep. 837 (H.L. 1774).

[FN84]. See id.; see also Howard B. Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 WAYNE L. REV. 1119, 1156-59 (1983).

[FN85]. See Yen, supra note 73, at 527.

[FN86]. See id. at 528. For example, the New Hampshire copyright statute stated, "[A]s the improvement of knowledge, the progress of civilization, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences; ... legal security of the fruits of their study and industry ... is one of the natural rights of all." Id. at 528-29.

[FN87]. See generally Abrams, supra note 84.

[FN88]. See THE FEDERALIST NO. 43 (James Madison).

[FN89]. THE FEDERALIST NO. 43, at 279 (James Madison) (E.M. Earle ed., 1976). Some supporters of the CTEA read Madison's statement as an expression of his approval of the Millar decision, and thus, as an approval of the natural rights view of copyright. See Yen, supra note 73, at 529 nn.80 & 91. These supporters, however, are reading more into this statement than is actually present to help their cause.

[FN90]. 98 Eng. Rep. 207 (K.B. 1769).

[FN91]. See Yen, supra note 73, at 529.

[FN92]. See THE FEDERALIST NO. 43, at 279 (James Madison) (E.M. Earle ed., 1976).

[FN93]. See Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 663-64 (1834).

[FN94]. See id.

[FN95]. See id. at 593-95. The common law claim was based on the theory of an author's natural rights in the fruits of his labor. See id. at 596.

[FN96]. Id. at 663.

[FN97]. See id. The Wheaton Court made a distinction between common law rights and natural law rights. See id. at 657. The Court considered common law rights to be a perpetual right to control publication of the author's work, and considered natural rights to be the right of the author to control his work until the time of its first publication. See id. In making this distinction, the Court stated:

That an author, at common law, has a property in his manuscript ... cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world ....

....

That every man is entitled to the fruits of his own labour must be admitted; but he can enjoy them only, except by statutory provision, under the rules of property, which regulate society, and which define the rights of things in general.



Id. at 657-58.

[FN98]. See Lavigne, supra note 63, at 320; see also Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984). The Court noted:

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.



Sony Corp. at 429.

[FN99]. United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).

[FN100]. See Mazer v. Stein, 347 U.S. 201, 219 (1954) ("The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts."'); Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors."); Berlin v. E. C. Publications, Inc., 329 F.2d 541, 544 (2d Cir. 1964).

[FN101]. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (citations omitted).

[FN102]. The complete text of Title I of the CTEA is provided for review in Appendix A.

[FN103]. See Sonny Bono Copyright Term Extension Act, Pub. L. No. 105- 298, 112 Stat. 2827 (1998) (codified as amended 17 U.S.C. § § 108, 203, 301-304).

[FN104]. Id. § 102.

[FN105]. See id. § 101.

[FN106]. See id. § 102(b).

[FN107]. 17 U.S.C. § 302(a) (1994).

[FN108]. See Sonny Bono Copyright Term Extension Act § 102(b)(1).

[FN109]. Id. § 102(b)(2). This section also replaces the word "fifty" in the original statute with "70." Id.

[FN110]. 17 U.S.C. § 302(c).

[FN111]. See Sonny Bono Copyright Term Extension Act § 102(3)(a), (b). These sections replaced "seventy-five" with "95" and "one hundred" with "120." Id.

[FN112]. See 17 U.S.C. § 303(a) (Supp. 1997).

[FN113]. See id.

[FN114]. Section 102(c) of the CTEA replaces the date "December 31, 2027" in 17 U.S.C. § 303 with the date "December 31, 2047." Sonny Bono Copyright Term Extension Act § 102(c). This change provides an incentive for owners of works in this category that still remain unpublished to publish the works before 2002 and gain up to 45 more years of protection. See David Goldberg & Robert J. Bernstein, Sonny Bono Act Extends Copyright Protections, 9 ENT. L. & FIN. 3 (1998).

[FN115]. See 17 U.S.C. § 304(a)(1)(B) (1994).

[FN116]. Sonny Bono Copyright Term Extension Act § 102(d)(1)(A)(i)(I).

[FN117]. See 17 U.S.C. § 304(b).

[FN118]. Sonny Bono Copyright Term Extension Act § 102 (d)(1)(B).

[FN119]. See 17 U.S.C. § 305 (1994).

[FN120]. See supra note 32 and accompanying text.

[FN121]. See Patry, supra note 22; see also supra text accompanying note 22.

[FN122]. See Copyright Act of 1976, Pub. L. No. 94-553, § 203, 90 Stat. 2541 (1976) (codified at 17 U.S.C. § 304(c) (1994 & Supp. 1997)). This "recapture" provision provides authors whose work attained popularity after being assigned to someone else or authors whose works maintained economic vitality longer than the original term much greater chance for financial profits from their works than was possible under the 1909 Act. See id.

[FN123]. See Patry, supra note 22, at 916.

[FN124]. See Sonny Bono Copyright Extension Act Adds 20 Years to Duration of U.S. Copyrights, ENT. L. REP., Nov. 1998, at 8-9.

[FN125]. See id.

[FN126]. See generally William F. Patry, The Copyright Term Extension Act of 1995: Or How Publishers Managed to Steal the Bread from Authors, 14 CARDOZO ARTS & ENT. L.J. 661 (1996).

[FN127]. See Civil and Criminal Enforcement of Copyright Laws: Hearings Before the Subcomm. on Patents, Copyrights and Trademarks of the Senate Judiciary Comm., 99th Cong. 40 (1988) (statement of Barbara Ringer, former Register of Copyrights); see also Patry, supra note 22, at 928.

[FN128]. See Sonny Bono Copyright Term Extension Act, Pub. L. No. 105- 298, § 102, 112 Stat. 2827 (1998) (codified as amended 17 U.S.C. § 303).

[FN129]. Id. § 103.

[FN130]. See id.

[FN131]. See supra note 46 and accompanying text.

[FN132]. See Goldberg & Bernstein, supra note 114.

[FN133]. See id.

[FN134]. See id. The recapture provision of the CTEA essentially gives authors a third chance to profit from their works that have remained profitable. Even if an author had assigned away his rights under the 1909 Act, he was given a "second bite of the apple" by the recapture provision of the 1976 Act. Furthermore, if he failed to exercise his termination rights under that provision, he is now given a "third" chance with the recapture provision of the CTEA. The significant benefit given to authors and their beneficiaries by the recapture provisions provided by the 1976 Act and the CTEA as compared with the rights under the early statutes should not be overlooked. See id.

[FN135]. See Sonny Bono Copyright Term Extension Act § 103.

[FN136]. See 17 U.S.C. § 304(c) (1994 & Supp. 1997).

[FN137]. Sonny Bono Copyright Term Extension Act § 103(2)(D).

[FN138]. See 17 U.S.C. § 108 (1994).

[FN139]. See Sonny Bono Copyright Term Extension Act § 104(2).

[FN140]. Id.

[FN141]. See id.

[FN142]. Id.

[FN143]. See Pat. & Trademark Daily News (BNA), at D-5 (Jan. 12, 1999).

[FN144]. See Sonny Bono Copyright Term Extension Act § 105.

[FN145]. Id.

[FN146]. Sonny Bono Copyright Term Extension Act Adds 20 Years to Duration of U.S. Copyrights, supra note 124, at 8.

[FN147]. See John Soloman, Rhapsody in Green (last modified Nov. 13, 1999) < http://www.public.asu.edu/dkarjala/commentary/Solomon1-3-99.html>.

[FN148]. See Disney Lobbying for Copyright Extension No Mickey Mouse Effort, CHI. TRIB., Oct. 17, 1988, at 22.

[FN149]. Id.

[FN150]. See id.

[FN151]. See Dennis S. Karjala, Opposing Copyright Extension (last modified Sept. 17, 1999)
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