Copyright Page

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.

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 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

Copyright holders have deployed a wide range of enforcement strategies this past decade. In an initial, punitive stage, content industries targeted individual copyright infringers by way of an extensive settlement demand campaign and obtained statutory damage awards in a few high profile file-sharing lawsuits. Recently however, copyright holders drastically reversed course, abandoning punitive measures in favor of a “copyright information approach” that enlists Internet service providers into sending copyright infringement notifications to subscribers. Commentators have welcomed this shift towards copyright alert systems as providing a more balanced approach to copyright enforcement that might improve copyright law’s normative acceptance. Copyright industries are optimistic that the new copyright alert system will increase copyright awareness and decrease copyright infringing behavior. This Article shows that the optimism with copyright law’s recent developments is misplaced. Based on social science research and insights from an empirical study conducted for this Article, we argue that architects of the copyright alert system have underestimated the robustness of social norms and have failed to anticipate the negative reactions to a copyright information system, in particular as relating to privacy harms.

The rising popularity of streaming has resulted in a revolutionary change to how digital content, such as sound recordings, cinematographic films, and radio and television broadcasts, is used on the internet. Superseding the conventional method of downloading, using streaming to access digital content has challenged copyright law, because it is not clear whether end-user acts of streaming constitute copyright infringement. These prevailing grey areas between copyright and streaming often make end-users feel doubtful about accessing digital content through streaming. It is uncertain whether exercising the right of reproduction is appropriately suited for streaming, given the ambiguities of “embodiment” and scope of “substantial part”. Conversely, the fair dealing defence in Australia cannot be used aptly to defend end-users’ acts of streaming digital content, because the use of streaming to access digital content rarely falls within the defences specified under fair dealing. When considering a temporary copy exception, end-users are at risk of being held liable for infringement when using streaming to access a website that contains infringing digital content, even if they lack any knowledge about the content’s infringing nature. Moreover, the grey areas in circumventing geo-blocking have made end-users hesitant to access websites through streaming because it not clear whether technological protection measures apply to geoblocking. End-users have a severe lack of knowledge about whether they can use circumvention methods, such as virtual private networks, to access streaming websites without being held liable for copyright infringement. Despite the intricacies between copyright and access to digital content, the recently implemented website-blocking laws have emboldened copyright owners while suppressing end-users’ access to digital content. This is because the principles of proportionality and public interest have been given less attention when determining website-blocking injunctions. This thesis examines the challenges posed to Australian copyright law by streaming, from the end-user perspective. It argues that continuous attempts to adapt traditional copyright principles into streaming, a novel technological advancement, are futile. This thesis compares the Australian position with the European Union and United States to draw lessons from them, regarding how they have dealt with streaming and copyright. By critically examining the technological functionality of streaming and the failure of copyright enforcement against the masses, it argues for strengthening end-user rights. Although it is difficult to reach copyright equilibrium by counterpoising copyright owners’ interests with copyright users’ interests, this thesis argues that deploying an appropriate balance is pivotal to expand end-user rights. This analysis of the current copyright law regime, from the end-user standpoint in respect to novel technologies such as streaming, opens up new terrain for future research, on how copyright law should address new technologies to benefit society.

The establishment of criminal offences for copyright infringements has a long history under certain national copyright laws, including the laws of Australia and Malaysia. A new stage in the evolution of criminal laws for copyright infringements was, however, reached in the mid-1990s with the introduction of the first international standard for criminal enforcement measures, in the form of Article 61 of the Trade-Related Aspects of Intellectual Property Rights Agreement (the ‘TRIPS Agreement’). The Article 61 standard, which is the current international standard, criminalizes, among other things, wilful copyright piracy on a commercial scale and compels WTO Members to impose ‘imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity.’ The Article 61 standard, however, could potentially be eclipsed by new, and potentially more severe, standards of criminal enforcement measures which are being proposed and negotiated between countries to be included in emerging multilateral treaties, namely the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement. The attempts to strengthen the international standard for criminal enforcement measures have resulted in considerable controversy, partly due to the expansion of the scope of conduct being criminalized. The recent and ongoing controversies concerning the application of the criminal law to copyright infringements are related to more general controversies regarding the purpose and proper scope of copyright protection, especially in the digital environment. In view of the apparent movement towards increasingly prescriptive international standards of criminal enforcement measures, and bearing in mind that copyright infringements have historically been essentially regarded as private wrongs, there is an urgent need for a principled analysis of the application of the criminal law to certain forms of copyright infringement. This thesis examines this general issue by addressing two key research problems: • whether the criminalization of copyright piracy on a commercial scale is legitimate; and • if so, what are the objectives of imposing criminal sanctions and, in light of the objectives, what are the appropriate levels of criminal punishment for copyright piracy? Although the subject of much current debate, these issues have been under-researched in the academic literature. In relation to the first research problem, applying Joel Feinberg’s version of the Harm Principle, the thesis tentatively concludes that there is a prima facie case for criminalizing intentional or reckless acts of copyright piracy on a commercial scale. In relation to the second research problem, the thesis establishes that the overarching objective of establishing criminal penalties in Article 61 is to deter serious copyright infringements, essentially meaning intentional piracy on a commercial scale. In accordance with this objective, the penalties set by national enforcement regimes should be assessed by reference to the principles arising from the ‘deterrence theory’ of criminal punishment. Focusing on the Australian and Malaysian penal provisions, the thesis assesses whether the level of penalties set in the relevant criminal provisions comply with deterrence theory, in that they are sufficiently severe to deter infringements, but nevertheless proportionate. Accepting that the Article 61 standard requires that the penalties to be made available must be consistent with the ‘level of penalties’ applied to ‘crimes of a corresponding gravity’, and that most commentators on the TRIPS Agreement agree that offences for non-violent theft are ‘crimes of a corresponding gravity’, the thesis uses the penalties set for such offences as benchmarks for assessing the penalties set by representative criminal provisions under the relevant national copyright laws. The thesis demonstrates that the penalties set in the Australian and Malaysian penal provisions prima facie comply with the current TRIPS standard, which is inherently flexible. Further empirical research on factors such as the current enforcement and sentencing practices, however, is necessary to arrive at a definitive conclusion on the extent to which the criminal penalties set under Australian and Malaysian law represent an effective, but proportionate deterrent. Reflecting the complexity of the issues in this controversial area, many of the conclusions reached in the thesis are tentative and qualified. Nevertheless, the analysis of the two key research problems undertaken in the thesis represents an advance over the extant literature by establishing a rigorous conceptual framework for addressing the two key research problems, which hopefully may guide future research in this area. The law in the thesis is as at 23 June 2014.

The drafters of the Next Great Copyright Act will have to establish the subject matter that their statute will protect. Currently, the 1976 Copyright Act protects a very broad range of subject matter, though its reach is not unlimited. Perfume, for example, falls outside all of the categories of subject matter protected in the current statute. The question of what subject matter copyright law protects has been largely, though not entirely, uncontroversial in recent years, and this Article does not propose that the Next Great Copyright Act expand or contract copyright’s subject matter. Instead, it draws on experience under the current act and its predecessor (the 1909 Copyright Act) to offer lessons to guide legislators in drafting a new statute’s subject-matter provisions. Most importantly, Congress should expressly and exhaustively enumerate in the statute all of the categories of subject matter that it intends to protect. Congress should not delegate authority to the courts or the Copyright Office to find other, unenumerated categories of subject matter copyrightable. In the past, Congress appears to have left open the possibility that subject matter not enumerated in the statute—such as, for example, perfume under the 1976 Act—might nevertheless be copyrightable, either by writing a statute (the 1909 Act) that could be read to protect every type of authorship that the Constitution authorizes Congress to protect or by indicating (in the 1976 Act) that the statutory list of categories of copyrightable subject matter is nonexhaustive. The Next Great Copyright Act should reject both approaches. In addition to identifying all of the categories of authorship that it wishes to protect, Congress should statutorily define each enumerated category, and should do so with sufficient breadth that rapid technological developments do not quickly make the definitions obsolete. The current statute, in contrast to the 1909 Act, demonstrates how this can be done. Finally, Congress should make clear that works of authorship incorporating preexisting material—in particular, compilations of preexisting material—are copyrightable only if they come within one of the expressly enumerated categories. © 2014 R. Anthony Reese. † Chancellor’s Professor of Law, University of California, Irvine. Thanks to the participants in the symposium, and to Jane Ginsburg, Rob Kasunic, Jessica Litman, Lydia Loren, Pam Samuelson, Chris Sprigman, and Molly Van Houweling for helpful discussions on the topic of copyright’s subject matter. Thanks also to Chris Buccafusco, Ed Lee, David Schwartz, the participants in the Spring 2013 Chicago IP Colloquium, and the participants in the January 2012 Vanderbilt JET Copyright & Creativity Symposium for comments on an earlier draft paper on this topic. 1490 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 29:1489 Following these principles in establishing the subject matter protected by the Next Great Copyright Act would improve upon the 1976 Act’s provisions and would resolve a number of uncertainties generated by the current statutory language.

Author Posting. (c) 'Copyright Holder', 2010. This is the author's version of the work. It is posted here by permission of 'Copyright Holder' for personal use, not for redistribution. The definitive version was published in Intellectual History Review, Volume 20 Issue 2, June 2010. doi:10.1080/17496971003783922 (http://dx.doi.org/10.1080/17496971003783922)

We report on the tuning of end magnets of a compact 12 MeV racetrack microtron (RTM) which is under construction at the Technical University of Catalonia. They are magnetic systems composed of four dipoles with the Rare-Earth Permanent Magnet (REPM) material used as a source of the magnetic field. The poles of the magnets are equipped with tuning plungers which allow to adjust the magnetic field level. In the article we describe the tuning procedure and different techniques that were used in order to fulfill strict requirements of the field characteristics of the end magnets. It is shown that the obtained magnetic systems provide correct beam trajectories in the 12 MeV RTM.

In Capitol Records, L.L.C. v. Vimeo, L.L.C., the U.S. Court of Appeals for the Second Circuit held that the “safe harbor” provisions of Section 512 of the federal Copyright Act covered state law claims against an online service provider for infringement of pre-1972 sound recordings.1 The evidentiary basis for this conclusion was slender. At the heart of the decision was the court’s surmise that Congress must have intended to cover state law “copyright,” because a contrary interpretation would undermine the policy objectives of the Digital Millennium Copyright Act (DMCA). In reaching its decision, the court apparently misread the Copyright Act and misunderstood both the nature of state law protection for pre-1972 sound recordings and the trade-offs that underlay the DMCA. We submit that this holding of Vimeo should not be followed by courts in other circuits, however sympathetic its policy underpinnings may be.2 It is doubtful that Congress considered state law “copyright” claims in passing the DMCA, or that it meant to include them under § 512. As a policy matter, it probably should have done so. But had it done so, Congress almost certainly would have said so explicitly, and would have altered other provisions of the DMCA to achieve a fairer result for owners of rights in pre-1972 sound recordings than the Second Circuit did. Congress could, for example, have protected pre-1972 sound recordings under § 1201 et seq., or otherwise provided those recordings with greater protection under the Copyright Act.3 The court’s focus on only one policy objective of the DMCA led it to interpret the Copyright Act in an implausible manner that benefits online service providers (OSPs), at the expense of owners of pre-1972 sound recordings, and the unique position of those recordings under copyright law. The central issues in this case that concern pre-1972 sound recordings are more appropriately under Congressional purview, as the Second Circuit should have recognized. And indeed, Congress should act to resolve these issues, particularly now, in view of the conflicting treatment of state law claims between Vimeo (concerning the safe harbor in § 512 of the Copyright Act)4 and the Ninth Circuit’s sweeping conclusion in Perfect 10, Inc. v. CCBill, L.L.C.5 that state law intellectual property claims are barred by § 230 of the Communications Decency Act (CDA).6 Accordingly, we recommend legislation to address this issue and to resolve other problems and inconsistencies that have arisen due to the peculiar situation of pre-1972 sound recordings and federal copyright law, as discussed below. In Part I, we discuss the legal status of pre-1972 sound recordings as necessary background to evaluating the Second Circuit’s decision in Vimeo. Part II discusses that decision in greater detail, and Part III explains the flaws in the court’s rationale. In Part IV, we address the Second and Ninth Circuits’ contradictory views concerning the treatment of state law claims against OSPs under § 512 of the Copyright Act and § 230 of the CDA. In Part V, we explain that it is up to Congress to change the role of pre-1972 sound recordings in the federal copyright scheme, and argue that the time is ripe for Congress to exercise that power. We conclude in Part VI.

This Note considers the conceptual separability doctrine of American copyright law in the context of clothing Conceptual separability, a prerequisite for copyright protection of the designs of useful articles (a subset of pictorial, graphic, or sculptural works), occurs when the expression of the useful article can be conceptualized as separate from the aspects of the object. In clothing however, where fashion often meets function, the distinction between aesthetic features and functional blurs.Federal courts have been struggling with conceptual separability since the Copyright Act of 1976 took effect. To this day the United States Courts of Appeals have failed to agreed on a uniform approach for determining conceptual separability. The courts are further divided as to the best approach to analyzing clothing The most recent case comes from the Sixth Circuit, involving the conceptual separability of cheerleader uniform designs, and underscores the need for a uniform conceptual separability standard in the context of fashion. This Note discusses the existing case law on conceptual separability, its nuance in the context of clothing, and discusses the issues with the current dichotomous classification between and design. It then proposes a tri-partite classification scheme, identifying a clothing design as falling into one of three categories: fabric pattern design, fabric graphic design, and design. In most cases, conceptual separability would only apply to the fabric graphic category, which contains designs that generally are intended to interact with the wearer to influence the perception of the wearer’s body. Such a design categorization scheme clarifies the muddled standards for copyrightability of clothing increases predictability within the fashion and garment industries, and promotes judicial economy by limiting the cases that invoke the confusing separability doctrine as applied to clothing

Under the patent and copyright laws, the owner of a patent for an invention or of a copyright for a work has the right to sell, license or transfer it, to exploit it individually and exclusively, or even to decide to withhold it from the public. By contrast, under the antitrust laws, a unilateral refusal to deal may constitute an element of a violation of Section 2 of the Sherman Act, and the courts may then impose a duty on the violator to deal with others, including possibly with its actual or would-be competitors. The central question addressed by this Article arises from an attempt to harmonize these potentially conflicting principles: What is the extent to which the antitrust laws may impose a duty to deal on the owner of intellectual property? Two recent court of appeals decisions have taken notably different approaches to this question. In Image Technical Services v. Eastman Kodak, the Ninth Circuit held that, in the absence of legitimate business justifications, the defendant, the owner of copyright and patent rights, violated the Sherman Act by its refusal to sell or license the products subject to intellectual property protection to its competitors. In In re Independent Service Organizations Antitrust Litigation (Xerox), the Court of Appeals for the Federal Circuit expressly disagreed with the Ninth Circuit and rejected the proposition that even in the absence of those justifications, the antitrust laws might impose a duty on the owner of patents or copyrights to deal with competitors. On several occasions, albeit not in the context of intellectual property, the Supreme Court has recognized that the antitrust laws may impose a duty on a firm with market power to deal with its competitors. However, last Term, in Trinko, the Supreme Court limited the reach of some of those prior decisions. This Article explores this apparent - but in fact exaggerated - tension between the intellectual property regime and the antitrust laws. What are the policy justifications for imposing, or refusing to impose, a duty on the owner of intellectual property to deal with competitors? Was Image Technical correctly decided? To what extent does Image Technical survive after Xerox, Trinko, and other recent cases?

Bills recently introduced in the House of Representatives, in 2016 and again in 2017, would implement a proposal by the U.S. Copyright Office to establish a small claims tribunal within the Office. The Copyright Alternatives in Small-Claims Enforcement (CASE) Act of 2017, H.R. 3945, would authorize creation of a centralized tribunal system to adjudicate small copyright infringement claims as well as abuse of notice-and-takedown claims under 17 U.S.C. § 512(f). The bill, like its predecessors in 2016, is largely based on draft legislation developed by the Copyright Office in its 2013 Report on Copyright Small Claims. Recognizing that enactment of legislation of this sort may have profound effects on copyright in the U.S., the Berkeley Center for Law & Technology (BCLT) and UC Hastings College of the Law convened a workshop In February 2017. Eighteen scholars specializing in economics, civil procedure, and intellectual property law discussed the small copyright claims legislation contemplated in the Copyright Office Report and the bills introduced in 2016. This report describes the range of issues discussed. Reservations expressed at the workshop fell into six principal categories: 1) constitutionality concerns; 2) breadth of jurisdiction; 3) process concerns about claiming, adjudicating, and appealing the outcomes if the proposal was enacted as is; 4) potential for abuses; 5) underexplored alternatives; and 6) larger questions about the proposal, including whether copyright is so special that it should have a tribunal of its own, given that many federal laws are underenforced because of the high costs of litigation. The range and seriousness of concerns lead to the conclusion that further consideration is warranted before moving forward with proposed legislation.

Technology is in progress increasingly sophisticated, enables everyone to explore and showcase her work in a variety of ways, one of which is now very easy to find is to upload video footage in a private channel on the YouTube site. However, disputes arise when recording on the channel associated with copyright issues. One of them is the activity of singing songs of others. The problems discussed in this study is how the Top Tracks Copyright Protection “Akad” Created by Payung Teduh In Case Cover Version By Hanin Dhiya Seen From the Copyright Act. The research approach is Normative legislation reviewing Act No. 28 of 2014 on Copyright. The results of this study explains that the song “Akad” is the creation of Payung Teduh, and copyright is protected by the Copyright Act, in order to perform a cover of the song, so it needed permission from Payung Teduh, as a tribute to the work of someone else's copyright. If this right is violated, the creator has the right to prosecute the song cover both civil and criminal. Keywords : Protection Law, Copyright, Cover Songs.

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