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

InternationalCopyright 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 &Unfair CompetitionRight of

Publicity


Copyright Patent


PublicityTradeSecrets

Intellectual Property Protection for Industrial Designs

Copyright Patent



Copyrightsfor UsefulObjects


Copyright Patent



DesignPatents


Copyright Patent



Trade Dress


Copyright Patent



Copyrightsfor UsefulObjects

DesignPatents

Trade Dress


Copyright Patent



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– Ideas

– Facts

– "truths of a science"

– "methods of an art"

– "system of bookkeeping"

– generic plots

– generic characters

– research

• Copyrightable– Expression– detailed plots– distinctive

characters

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

• Sony v. Universal City Studios (1984)

Supreme-Court Case Law

Compensation System for Network Broadcasts of Copyrighted Programs

Studios

Hold copyrightsin movies & shows


Networks

Studiosbroadcastlicenses

Hold copyrightsin movies & shows


Networks

Studios

Public

broadcastlicenses

free programming(with embedded ads)


Networks

StudiosAdvertisers

Public

higher pricesfor products

broadcastlicenses



Networks

StudiosAdvertisers

Public

price of ads


broadcastlicenses



Networks

StudiosAdvertisers

Public

price of ads


broadcastlicenses

license fees



Networks

StudiosAdvertisers

Public

Sony

price of ads


broadcastlicenses

license fees


cost of VCRs

VCRs


Networks

StudiosAdvertisers

Public

Sony

price of ads


broadcastlicenses

license fees


cost of VCRs

VCRs


Networks

StudiosAdvertisers

Public

Sony

price of ads


broadcastlicenses

license fees


cost of VCRs

VCRs


Networks

StudiosAdvertisers

Public

Sony

price of ads


broadcastlicenses

license fees


cost of VCRs

VCRs


Networks

StudiosAdvertisers

Public

Sony

price of ads


broadcastlicenses

license fees


cost of VCRs

VCRs


Networks

StudiosAdvertisers

Public

Sony

price of ads


broadcastlicenses

license fees


cost of VCRs

VCRs

?

Fair Use Doctrine

• 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

Supreme-Court Case Law

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

published

fictionfact

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)

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

10 countries

Berne Convention -- 1896

• National treatment– Signatories give citizens of other signatories same treatment

as their own citizens


• 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:– translation right for term of original work

13 countries

Berne Convention -- 1908• National treatment

– Signatories give citizens of other signatories same treatment as their own citizens


• No formalities as condition of protection• Protected Works:

– books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture

– No protection for political articles; news

• Exclusive rights:– translation right for term of original work; recording right for

music; cinematograhic right

18 countries



– Except as to term of protection– Discrimination against authors from non-member countries

permitted• No formalities as condition of protection• Protected Works:

– books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture

– No protection for political articles; news• Exclusive rights:

– translation right for term of original work; recording right for music; cinematograhic right

27 countries



– Except as to term of protection – Discrimination against authors from non-member countries


– books; pamphlets; drama; music; design; painting; sculpture; maps; 3D works in geography and architecture; photos; choreography; architecture; lectures


– translation right for term of original work; recording right for music; cinematograhic right; moral right; broadcasting right; adaptation right

36 countries







– translation right for term of original work; recording right for music; cinematograhic right; moral rightmoral right; broadcasting right; adaptation right

36 countries

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.”







– translation right for term of original work; recording right for music; cinematograhic right; moral right; broadcasting right; adaptation right

36 countries



– Discrimination against authors from non-member countries permitted• No formalities as condition of protection• Protected Works:



– 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

• Minimum term: LOA + 50 years

37 countries



– Discrimination against authors from non-member countries permitted

• No formalities as condition of protection• Protected Works:



– 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

• Minimum term: LOA + 50 years• Formation of WIPO

Sta

lem

ate

on s

ub

stan

ce59 countries




– 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








63 countries








currently 150 countrieshttp://www.wipo.org/treaties/ip/berne/index.html

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”

36 countrieshttp://www2.unesco.org/clt-bv/html_eng/01universalcopy.htm

Rome Convention (1961)• National Treatment principle• 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

40 countries

Rome Convention (1961)• National Treatment principle• 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

currently 76 countrieshttp://www.wipo.org/treaties/ip/rome/

Other “Neighboring Rights” Agreements

• Geneva Phonograms Convention (1971)

• Brussels Satellite Convention (1974)

• WIPO Performances and Phonograms Treaty (1996)

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

currently 146 countries

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



Territoriality Principle

Treatment of “works for hire”;

Priority rules



Feist (US)Tele-Direct (Canada)Schricker (Germany)



Territoriality Principle --Atlas Film (Germany)

UCC, art. IVBerne, art. 7(8)EC Term Directive --LOA + 70

Sonny Bono --LOA + 70; Eldred



Utility Models;

Conceptual Separability;

Overlap with creativityrequirements



Utility Models;

Conceptual Separability;

Overlap with creativityrequirements



CONTU (US)EC Software DirectiveTRIPS Art. 10



Berne Arts. 2, 11bisRome Art. 12;1992 EC Directive;DPRA & DMCA (US)CARP (US)



European blank-tape systems;

Sound recordings



Germany, Japan, & US withhold ©Great Britain: Crown and Parliamentary copyright



Is TRIPs compatiblewith US fair use?

Should TRIPsmandate 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.



Is TRIPs compatibleWith US fair use?

Should TRIPsMandate fair use?



Issues include:Duration;Alienability;Preconditions to integrity right;Responsibility of heirs/devisees

Berne 6bisTRIPS exclusion





drive towardharmonizationby selecting mostauthor-protectiveoption on eachissue

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-consolidating

Democracy-inducing


Democracy-enhancing


Democracy-inducing

Impact of Copyright• Foster free flow of

information and diversity of expression

• Promote independent sector of artists & publishers

• Venerate individual innovation and expression


Democracy-enhancing


Democracy-inducing

Impact of Copyright• Foster free flow of

information and diversity of expression

• Promote independent sector of artists & publishers

• Venerate individual innovation and expression

?

?

?

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 Protectionfor 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• Cheney Bros. (CA2 1929)

• Erie RR (1938)

• NFL v. Del. (1977)

• NBA (1997)

• Alcatel (1999)

Expansion

• Radio broadcast cases (1932-1955)

• Metropolitan Opera (NY 1950)

• Pottstown News (PA 1963)• Bond Buyer (NY 1966)• Dow Jones (Ill 1983)• US Sporting Products (Tex

1993)• Lynch, Jones (NY 1998)• Internet “framing” cases?

Facts of NBA (1997)NBA game


Live audience

TV audience

Radio Audience


Live audience

TV audience

Radio Audience

(STATS reporters)

(STATS reporters)


Live audience

TV audience

Radio Audience

(STATS reporters)

(STATS reporters)

STATS computer


Live audience

TV audience

Radio Audience

(STATS reporters)

(STATS reporters)

STATS computer

Satellite


Live audience

TV audience

Radio Audience

(STATS reporters)

(STATS reporters)

STATS computer

Satellite

Motorola pagers


Live audience

TV audience

Radio Audience

(STATS reporters)

(STATS reporters)

STATS computer

Satellite

Motorola pagersUsers

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

Purchasercontract withvalid restraintson use andalienation


Creator

Purchasercontract withvalid restraintson use andalienation Rival

conveyancewithoutrestrictions


Creator


conveyancewithoutrestrictions Publicdistribution

--e.g., over internet


Creator




breach of contract(damages and injunction)


Creator




claim for tortious interferencewith contractual relations?


Creator




No practical remedy


• 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 Information Act of 1999, introduced 5/19/99

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 marketPrimary 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 marketRelated 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 withIn 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 analysiscommercial 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• NYSE• Real Estate Agents• AMA• EBay

Anti• Chamber of Commerce• Consumers Union• Research Libraries• Charles Schwab• Yahoo


• Copyright


• Contract






• Copyright


• Contract



• Trespass Doctrine– Bidder’s Edge v. Ebay (May 2000)



• Copyright


• Contract



• Trespass Doctrine– Bidder’s Edge v. Ebay (May 2000)


Wednesday


• Copyright


• Contract





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

Documents

medium protection

universal city studios

choreographic workspictorial

truthexamples of things

aesthetic merit