Law 619 | Electronic Commerce

T H E U N I V E R S I T Y O F P E N N S Y L V A N I A L A W S C H O O L

E L E C T R O N I C C O M M E R C E : V E R S I O N 2.0

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NOTICES:	Congratulations to the Fall 2001 class for an excellent semester. eCommerce will return next year.

R E A D I N G S

The goal (and challenge) of this section is to provide a reasonable overview of modern US copyright law -- sufficient to ensure that our discussion is firmly grounded in the basic doctrinal and theoretical principles.

First, to get a broad overview of the U.S. Copyright system, read the following "Copyright Basics" article from the U.S. Copyright Office:

US Copyright Office, Copyright Basics (2000) (pdf, 48 kb, edited)

Then browse (don't read in detail) the Copyright Law of the United States:

Title 17, United States Code (2001).

Alternative: Title 17, United States Code (2010) (offers PDF versions of the Code for download)

Next, we'll consider the basics of copyright in the following framework.

1. Scope of Coverage: What Does Copyright Cover?

2. Exclusive Rights: What Rights does a Copyright Owner Have?

3. Limits on Rights: What limits are there on Copyrights?

Scope of Coverage: What Does Copyright Cover?

First, read the critical statutory provisions:

17 U.S.C. §§ 101, 102, 103, 104, 105 (2000) (html, 44 kb)

Second, read the following important cases:

Feist v. Rural Telephone Service Co., 499 U.S. 340 (1991) (requirement of originality) (pdf, 36 kb, edited)

Baker v Selden, 101 U.S. 99 (1879) (idea versus expression) (pdf, 20 kb, edited)

MAI v. Peak Computing, 991 F.2d 511 (9th Cir. 1993) (defining "fixed in a tangible medium of expression") (pdf, 20 kb, edited)

Exclusive Rights: What Rights does a Copyright Owner Have?

The exclusive rights granted to a copyright owner are found in 17 U.S.C. § 106:

§ 106. Exclusive rights in copyrighted works

Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Limits on Rights: What limits are there on Copyrights?

Section 107 to 121 of Title 17 outline the limitations on a Copyright Owner's rights:

17 U.S.C. §§ 107-121 (2000). (html, 56 kb)

For our purposes, the most important limitation on rights is the "fair use" provision, in 17 U.S.C. § 107. Accordingly, we'll focus our attentions on this limitation.

Statutory Provisions

§ 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Justifications for Fair Use

What do you think the rationale behind the "fair use" concept is? Courts and commentators have variously described the theory as:

1. Encouraging "socially desirable" uses of copyrighted works. By granting free licenses to certain classes of uses and users, the law gives incentives to and subsidies for those who engage in those uses.

2. Remedying a market failure for the copyrighted works. It is often costly and difficult to negotiate for a license to use a copyrighted work. Where the cost of performing the transaction outweighs the benefits that accrue to society as a result of protecting the work, fair use operates.

3. Necessary to balance the Fist Amendment rights of free expression with a system of laws (Copyright) that restricts expression (in Copyrighted works). By limiting the scope of Copyright protection, fair use can be seen as an attempt to remain sensitive to the goal (and requirement) or free expression.

Which of these theories appeals to you? How do they relate to the eCommerce context?

Analyzing Fair Use

The following cases will provide a framework for discussion of the fair use concept in Copyright Law:

Sony v. Universal Studios, 461 U.S. 417 (1984) (pdf, 64 kb, edited)

Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110 (9th Cir. 2000) (pdf, 40 kb, edited)

What theories or justifications for fair use do these opinions advance? How relevant are they to the eCommerce world?

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