Copyright and Freedom of Expression: A Philosophical Map

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images. A great deal has been written on the theoretical aspects of copyright and the cultural industries but much less on the applied side – how copyright law works in practice. How do lawyers, firms and artists manage and administer copyright and what economic and legal problems does this raise? In recent times in particular, technological inventions appear to have outpaced the development of copyright law. This illuminating book addresses these issues and looks at the serious implications for copyright policy in the future. Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: • law and international transactions of copyrighted material • economic analysis of copyright and freedom of expression • music licensing in the digital age • the role of copyright in stimulating cultural development • internet distribution of copyright material • the problems of licensing museum images. International in scope and offering views from both academics and practitioners, this book will interest and inform economists, lawyers and policymakers alike. Commercial managers and business analysts involved with copyright would also benefit from reading this comprehensive yet accessible book.

The paradigmatic roles of copyright and patent laws have been, respectively, to protect original authorial expressions from illicit copying and novel and nonobvious functional designs (if they have been appropriately claimed and examined by patent officials) from illicit uses. It would be convenient if copyright law could be assigned the role of protecting the expression in computer programs and patent law the role of protecting program functionality. While courts continue to try to distinguish between program expression and program functionality, this distinction has proven elusive in the decades since the U.S. Congress decided to extend copyright protection to computer programs.For more than twenty years, a series of court cases have held that copyright infringement does not occur when a second comer needs to copy some aspects of another firm’s program in order to achieve compatibility with other programs. Courts have deemed the functional requirements for achieving compatibility to be unprotectable elements of these copyrighted programs, even though more than a modicum of creativity may have imparted originality to these elements.The seeming consensus that program interfaces necessary for interoperability are unprotectable by copyright law was recently called into question by the Court of Appeals for the Federal Circuit (CAFC) in Oracle Am., Inc. v. Google Inc. At issue was whether the command structure of certain elements of the Java application program interface (API) was protectable by copyright law. The CAFC reversed a lower court ruling that this command structure was an unprotectable method of operation, or alternatively that copyright protection was unavailable under the merger doctrine. The CAFC was untroubled by the prospect that software developers might obtain both patent and copyright protection for APIs of computer programs. There was, in its view, no need to sort out functionality and expression in computer programs. Copyright could protect both as long as there was a modicum of creativity to support the claim of copyright. The Oracle decision has rekindled a decades-old debate, which many had thought had been settled in the late 1990s, about the proper scope of copyright protection for computer programs and how courts should go about analyzing claims of software copyright infringement. The U.S. Supreme Court decision not to review the Oracle decision leaves the CAFC ruling intact for the time being.This Article takes issue with the CAFC’s ruling and analysis. It aims to provide guidance about how courts should assess claims of copyright infringement in computer program cases. Part II reviews some key software copyright decisions and explains why the Second Circuit’s test for software copyright infringement is more compatible with traditional principles of copyright law than the Third Circuit’s is-there-any-other-way-to-do-it test. The Second Circuit recognized that sometimes external factors, such as the need to be compatible with other programs, constrain the design decisions of subsequent programmers, and when this happens, those constraints limit the scope of copyright protection in programs. While there is much in the Second Circuit’s ruling to praise, that court failed to heed the statutory directive in 17 U.S.C. § 102(b) that procedures, processes, systems, and methods of operation should also be filtered out before making judgments on copyright infringement claims in software cases. Part III articulates five propositions about § 102(b) that should be uncontroversial. It explains the important role that § 102(b) has played in numerous computer program cases. It goes on to discuss numerous respects in which the CAFC in Oracle misinterpreted § 102(b), as well as numerous cases in which courts have held that aspects of programs that are necessary for achieving interoperability with other programs or hardware are too functional to be protected by copyrights. Part IV explains why the merger doctrine has an important role to play in the assessment of infringement claims involving computer programs and why the CAFC erred in its interpretation of this doctrine. Courts should explicitly recognize a merger of function and expression doctrine in computer program cases. This doctrine usefully complements analysis of elements that may be unprotectable under § 102(b) as necessary incidents to the reimplementation of an unprotectable method or process.Part V considers the roles that copyright and patent law should play in protecting program innovations, with particular attention to how courts should assess claims that copyright protection should be unavailable to aspects of programs that might be eligible for patent protection. The CAFC in Oracle conflated copyright and utility patent protections for software as though it was unnecessary to even try to distinguish program expression and functionality. Part VI offers a pragmatic approach to distinguishing between program functionality and expression in copyright cases and a refinement of the Second Circuit’s test for software copyright infringement that is consistent with the overwhelming majority of software copyright cases (even if not with the CAFC’s Oracle decision) and traditional principles of copyright law. Competition and ongoing innovation will better thrive when the scope of copyright protection is relatively thin, allowing programmers to reuse functional design elements and know how that will promote the progress of science and useful arts, as the Constitution directs.

Copyright law has an ambiguous relation with freedom of expression. On the one hand, copyright law protects the free expression of creators by ensuring that they reap the benefits of their own work. Without the existence of copyright law, any creator would fear the appropriation of her work by others. Copyright allows artists to express themselves without worrying about the potential reproduction of their words, art or music.1 On the other hand, as is often noted, copyright law restricts the form that expression might take by forbidding the free use of copyrighted materials. In a rapidly changing environment with new technologies, it is not only the enforcement of copyright that has been put into question but also its moral legitimacy (Davies, 2002, p. 32). The conflict between freedom of expression and copyright raises a number of important normative issues. Not all of them can be addressed in this chapter. In particular, I will not address here the important normative issues raised by the direct copyright control that some corporations assert over the use of cultural and intellectual works.2 KeywordsIntellectual PropertyPrima FacieTrade MarkFree SpeechLiberal TheoryThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

For a right to exist under federal copyright law, it must be affirmatively granted in Section 106 of the Copyright Act and fall within the accepted subject matter listed in Section 105. The exclusive right that musicians have in their sound recordings is limited to the right to “perform the copyrighted work publicly by means of a digital audio transmission.” The peculiar wording of “digital audio transmission” exempts radio stations from paying for the right to use the sound recordings that make up all of their music programming. Congress has tried to end this exemption several times, most recently in a failed attempt to pass the Performance Rights Act (“PRA”) of 2009. Since the failure of the PRA, two developments have further complicated the issue: a private deal by music industry giants—Clear Channel and Warner Music Group—and state copyright law suits over sound recording royalties for pre-1972 recordings. These events further compel the need for a full federal sound recording performance right. This Note contends that the best way for Congress to finally institute a full performance right is to use the current congressional review of copyright law to eliminate the exemption. As the Copyright Office recently completed a comprehensive review of music licensing law, including this change in an already proposed omnibus music copyright bill presents the perfect opportunity to eliminate the exemption.

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images.

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images.

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images.

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images.

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images.

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images.

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images.

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images.

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images.

The academic library community has been at the center of the copyright wars, advancing the interests of students and faculty. Digital and network technologies, the licensing of electronic content, and the globalization of copyright have combined to challenge our traditional views of intellectual property. New laws and legislation over the past decade have threatened the sustenance of fair use and key exceptions to copyright. We must re-commit to the education of our campuses, to political advocacy, and to collective

As technology advances, copyrights have been used, not only on physical works of literature and art, but also virtual works via the protective cloak of Digital Rights Management (DRM). Despite its obvious effectiveness and efficiency at times, DRM remains controversial and has generated several outstanding issues, leading to important legal precedents. This thesis discusses two of these issues: (1) DRM cannot fully stop copyright infringement, and (2) Major digital content companies are likely to act in an anti-competitive way when given the benefits of technology such as DRM. To analyze these two issues, this thesis focuses on three cases: A&M Records, Inc. v. Napster, Inc., the Apple iPod iTunes Antitrust Litigation, and United States v. Apple Inc. By analyzing these cases, this thesis is able to arrive at some useful conclusions -- in particular, DRM is unlikely to be the best solution to the problem of copyright infringement for cases involving virtual media. Normally, legal issues surrounding property rights must be adjudicated through the courts by a set legal process. However, the speed of change of technology often makes court rulings problematic and courts do not always make the most efficacious decision. It is crucial for all to be conscientious and fight copyright infringement. It is essential for all to realize that each of us benefit from intellectual works. Intellectual works push society forward, and therefore it is necessary to maintain a fair and safe environment for intellectual property. As for the anti-competitive issue, US court must deal with such behavior based on current laws, whether it is at people’s best interest or not. The thesis suggest however that anti-trust law should be more responsive to changes in technology. When viewing conflicts between society's benefit and the narrower benefit of a single company, the larger benefit should be considered. This is because the purposes of copyright laws and DRM are all for promoting social progress and the arts, so that the society can eventually become a place for creators, governments, enterprises, and consumers to peacefully co-exist.