class 10 copyright, winter, 2010 duration randal c. picker leffmann professor of commercial law the...

Class 10Copyright, Winter, 2010

DurationRandal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

Current Statute: Duration

302(a) In General. 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 the life of the author and 70 years after the author’s death.

Screen Capture Slide

Duration under the 1831 Act

Key Features 28 years duration from the time of recording

of the copyright as provided in the act 14 year renewal term possible

A Study in Scarlet

Do the Numbers American Publication: 1890 Assume appropriate initial copyright, then

initial term 28 years Assume appropriate renewal for second 14

year term Should have entered the public domain in

say 1932

Key Features Newly-Copyrighted Works

Initial 28-year term Ran from date of first publication Copyright itself could be forfeited if formalities

weren’t met Second renewal term of an additional 28-years

if mechanics of renewal were done properly

Key Features Existing Works

For works still in copyright, 56-year term extended to them

A Study in Scarlet

Do the Numbers American Publication: 1890 First 28-year term ends 1918, so in

copyright at passage of 1909 Act Then eligible for second 28-year term under

the 1909 Act Should have entered the public domain in

say 1946 (and presumably did)

Extensions of Existing Copyrights under 1909 Act

Add More Years Congress passed a series of temporary

copyright extensions for existing works in anticipation of broader copyright legislation

Footnote 2 in Eldred sets for the nine temporary extensions leading into the 1976 legislation

Means works didn’t enter public domain

Duration Under the 1976 Act

Key Event Shift Point of creation triggers copyright, not

publication For New Works Jan 1, 1978 and forward

Life of the author + 50 years from the point of creation

[Note: changed to life + 70 years by CTEA]

What about works in existence before Jan 1, 1978? Three categories

Already in the public domain Not in the public domain and not in the

copyright system (e.g., created but unpublished)

Already in the copyright system

In the Public Domain? Stay in the Public Domain Sec. 103 of the 1976 Act: “This Act does not

provide copyright protection for any work that goes into the public domain before January 1, 1978.”

Sec. 303: Created but Unpublished Applies the new life + 50 from creation rule

to these works with the proviso that can’t expire before Dec 31, 2002 and if published before then won’t expire before Dec 31, 2007

[Note: 2007 date was changed to 2027 in CTEA]

Sec. 304: Already in the Copyright System Two further subcategories

Works in their first term• Get original 28 year term and can renew for second

term of 47 years (for a total copyright of 75 years) Works in their second term

• Second term extended so as to make total term 75 years.

[Note: amended in 1992 and 1998]

The Devil’s Foot

Do the Numbers American Publication: 1911 Assume appropriate initial copyright, then

initial term 28 years Assume appropriate renewal for second 28

year term Should have entered the public domain in

say 1967

The Devil’s Foot

But Didn’t Interim extension statutes would have

protected it Under 1976 Act, would have been in

second term and received new regime total of 75 years from publication

Should then enter public domain in say 1986 (and, presumably, did so)

1909 Act Entry into the Public Domain

To Sum New works created under the 1909 act didn’t

enter the public domain 56 years in Temporary extensions carried those to the 1976

act That act generally moved those works to a 75

year term In 1984, 1909 act works start entering the public

domain

Rolling Forward from 1984

Copyright Renewal Act of 1992 Changed rules regarding renewal to match

structure of the current statute 304(a)(1) provides for automatic renewal for

second term No longer required to file for second term of

renewal

Copyright Renewal Act of 1992 Works don’t enter the public domain

through non-renewal 1992 – 28 = 1964

Works before 1964 could have failed to file for second term and if so would have entered the public domain

See G&G, 7th ed, p. 435

Copyright Term Extension Act of 1998 Added twenty years to duration for works

still in copyright Applied on going forward basis and to

preexisting works

Copyright Term Extension Act of 1998 1998 – 75 = 1923

75 year term in place prior to passage of CTEA would have expired for works published prior to 1923

See G&G, 7th ed, p. 435

Shoscombe Old Place

Do the Numbers American Publication: Say 1928 Assume appropriate initial copyright, then initial

term 28 years Assume appropriate renewal for second 28 year

term 1928 + 56 = 1984 Still in copyright on Jan 1, 1978, effective date of

1976 Act

Shoscombe Old Place

Do the Numbers American Publication: Say 1928 That means triggered revised 75 year

period 1928 + 75 = 2003 But still alive at time of CTEA, so another 20

years = 2023!

Trace the Effect of the Extensions

If still in copyright on July 1, 1909 (effective date of 1909 Act) Got boost from 42 years to 56 years Something published immediately before

the 1909 Act, say in 1908, would have a 56 year duration: 1908 + 56 = 1964

1st temporary extension passed Sept 19, 1962

If still in copyright on July 1, 1909 (effective date of 1909 Act) 1962 – 56 = 1906

Something published before say 1906 should have been out of copyright and so would not have been extended by the 1962 Act

Something after that would have been

If still in copyright on Jan 1, 1978 Got boost from 56 years to 75 years (an

additional 19 years) And remember, given temporary

extensions, everything published under 1909 Act was still alive

If still in copyright on before effective date of CTEA (90 days after Oct 27, 1998) Got boost from 75 years to 95 years (an

additional 20 years) But intervening period without extensions

means that work published before 1923 (1998 – 75) had entered the public domain

Holmes and the Public Domain

Is Sherlock Holmes, the character, in the public domain?

Pannonia Farms, Inc. v. USA Cable, 2004 WL 1276842 (S.D.N.Y.,2004) “The holdings in Silverman are on point. Like

the Amos ‘n’ Andy characters, the Holmes and Watson characters have been delineated in over fifty stories that no longer possess copyright protection.”

“Again, like Silverman, just as these many stories have passed into the public domain, so too have their delineated constituent elements, such as the Holmes and Watson characters that are the subject of this suit.”

“ Thus, at most, ‘[o]nly the increments of expression added by’ the Nine Stories, either to these two characters or any aspect of Sir Doyle's stories that are in the public domain and underlie plaintiff's works, are protected. Silverman, 870 F.2d at 50. Storylines, dialogue, characters and character traits newly introduced by the Nine Stories are examples of added contributions susceptible to copyright protection.”

[PG Home]

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Constitution

The Congress shall have the Power . . . To promote the progress of science and the

useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

(Art. I, § 8, cl. 8)

Duration

Starting Questions What is the right duration looking forward? What is the right way to structure duration? Under what circumstances, if any, should

we want Congress to extend duration for existing works?

Does Congress have the power to do that?

One-Period Present Value

Numbers 10% interest rate From Today to Tomorrow

$1 today is worth $1.10 one year from now From Tomorrow to Today

$1.10 one year from now is worth $1 today

One-Period Present Value

Formulas

FV PV 1r PV FV

Two-Period Present Value

Numbers From Today to Tomorrow to The Period

After Tomorrow $1 today—present value—is worth $1.10

one year from now, is worth 1.21 two years from now

From Two Years from Now to Today A future value of $1.21 two years from now

is worth $1 today

Two-Period Present Value

Formulas

FV PV 1r1 1r2 PV

FV1r1 1r2

Two-Period Stream

Question What is $1.10 one year from now + $1.21

two years from now worth today? We have done this already!

$1.10 one year from now is worth $1 today $1.21 two years from now is worth $1 today Together, they are worth $2 today

Two-Period Stream Again

Question What is $1 one year from now + $1 two

years from now worth today? Answer

$1/1.1 + $1/1.21 = 1.735

N-Period Stream

Assumptions Stream will pay fixed amount C in every

period One-period interest rate r is same in every

period What is the formula that tells us the present

value of a stream of N periodic payments of C?

N-Period Stream

Formula

Forever Period Stream

Formula

Do the Numbers

Assumptions C = $100 R = 10% (0.1)

Value Today of $100 a Year Forever $1000

Value Today of $100 a Year for Fifty-Five Years $994.71

Do the Numbers

Value Today of $100 a Year for Years 56 to Forever $5.29

The House Report on Duration

Says the House The present 56-year term is not enough to insure

an author and this dependents the fair economic benefits from this works. Life expectancy has increased substantially, and more and more authors are seeing their works fall into the public domain during their lifetimes, forcing later works to compete with their own early works in which copyright has expired

Says the House Although limitations on the term of copyright are

obviously necessary, too short a term harms the author without giving any substantial benefit to the public. The public frequently pays the same for works in the public domain as it does for copyrighted works, and the only result is a commercial windfall to certain users at the author’s expense.

In some cases the lack of copyright protection actually restrains dissemination of the work, since publishers and other users cannot risk investing in the work unless assured of exclusive rights.

Benefits of Public Domain

Increased consumptive use Increased productive use

Eliminates coordination costs of licensed use: can be difficult to know who to license from

Reduces price for licensed use

Eldred

Core Facts Congress passes the Copyright Term

Extension Act adding 20 years to copyrights Applies both for new copyrighted works and

existing copyrighted works Eldred challenges the extension as

unconstitutional for existing works as violative of Copyright Clause and 1st Amendment

Copyright Clause

What does “for limited Times” mean if Congress can extend existing copyrights? What limits the power to do that? How is Congress promoting science and the

useful arts in extending the duration of existing works?

First Amendment

Does increased control over expression interfere with the First Amendment?

class 10 copyright, winter, 2010 duration randal c. picker leffmann professor of commercial law the...

appropriate initial

screen capture slidecopyright

initial term

year termran

year termshould

public domain

mechanics of renewal

numbersamerican publication

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