WIPIP Session 5: Copyright 2

Session 5 Copyright 2
 
Zahr Said, A Transactional Approach to the Lay Observer in
Copyright Law
 
Internal contradictions in uses of the observer.  Humanities perspective: copyright doesn’t
have a theory of reading/interpretation/engaging with works.  Reader response theory as a means for
addressing some confusion in © law: it’s a literary theory broadly applied to
film, art history, music, and other genres beyond text.
 
Payoff: more coherence for ©’s reading practices and
specifically for its reader.  Formal tests
used by courts and a variety of informal uses. 
Formal: urge adoption of lay perspective, such as 2d Circuit’s ordinary
observer test; 7th Circuit’s more discerning observer test, which is
less about observer and more about filtering. 
Function of lay perspective unclear; rationales vary and are sometimes
in conflict—proxy for market harm, other things.
 
Reader response theory reoriented analysis of art away from
text and towards audience (an oversimplification but that’s what you get in 8
minutes).  Different movements w/in the
theory; her favorite is Rosenblatt, who started writing about it before almost
everyone else did—1938.  Scholar/teacher
who attended to pedagogical scholarship. Reader response theory involved a
spectrum of fidelity to text, author. 
Author communicates and controls à ideal reader.  Text controls à implied reader.  Reader controls à interpretive
communities.  Rosenblatt’s scholarship
was practical, thus useful for judges: The reader is here and the text is there
and something happens in the space of the transaction, but reader can’t do just
anything with a text.  Some readers see
more cues and some see fewer; some see different cues and you can be trained to
see different ones.  The reader actively
engages with the text. Transaction controlsà reader creates, text
constrains.
 
Two modes for readers: aesthetic and efferent stances.  Not the aesthetic from Bleistein, but
phenomenological.  Aesthetic: a general
experience from interacting with the work. Its meanings for you unfold through
time. You might notice color, shape in a painting—a basic understanding.
Efferent: You’ve been asked to take some piece of information away with you—efferent
comes from Latin, meaning to bear something away. There’s a correct answer: how
many straight lines are in the picture?
 
Aesthetic can change; there’s no one correct reading (though
there are incorrect ones) and the reading may change over time.  Evolves; concerned w/what’s experienced
during the reading; varies based on reader’s knowledge and background.  Efferent: objective, public, informational,
functionalist, can proceed quickly b/c you can filter; in theory any reader can
get the full/same info if equipped with sufficient guidance.
 
Aesthetic to efferent is a switch of modes: experience v.
studying for the midterm.  Spectrum of
practices in ©; judges are better efferent readers than aesthetic, especially
when we’re discussing questions of scope, such as what’s protectable and what’s
in the public domain.  Efferent reading
should be the task for matters of law.  Juries
or factfinders can read aesthetically. 
Doesn’t mean decision will be uniform. 
 
Prescriptions: we ought to allow more expert evidence for
anything that’s efferent. To the extent we allow aesthetics in for look &
feel or holistic test, acknowledge what we’re doing and instruct juries in it.  Perhaps even use special verdicts for the
jury to identify what they see as similar. 
If juries could explain, judge could even read jury’s expressions and come
to some conclusion about that.  We need
to be clearer about what we’re asking juries to do—look at the instructions in Blurred Lines case, where they were
unclearly asked to do a job that they unsurprisingly did poorly.
 
Kevin Collins, Economically Defeasible Rights to Facilitate
Information Disclosure: The Hidden Wisdom of Pre-AWCPA Copyright
 
As an architect, I viewed © not to stop copying by
architects, but as a tool to prevent owners from screwing me over.  Prevented the building owners w/whom I worked
from appropriating my design without full payment.  Law prof default: copyright augments
incentives for expression by preventing copying by strangers.  Architect view: © facilitates bargained-for
disclosure, resolving Arrow’s information paradox, backing up a contractual
relationship rather than providing incentive to create through in rem
rights. 
 
Pre-AWCPA rights were quirky, economically defeasible
rights.  Proven difficult to justify
under standard incentive theory of ©. 
Hidden wisdom revealed in dealings with building owners.  If you recognize that architectural © played
a transactional role in backing up contracts, it makes good sense. 
 
Copyright maximalists complained that lack of protection
against copying buildings meant insufficient incentive.  Minimalist critique: weak copyright is good
for creativity and protection should be thin; but defeasible rights are
ill-conceived.  Why not protect both buildings
and drawings and equally through thin copyright?
 
Features of contracts that create information problems:
Standard design-bid-build project delivery: five phases; design information is
mostly generated early on, with schematic design, design development; then
construction documents, bid oversight, construction management.  Last phases: more management, coordination,
not creative information producer.  These
agreements usually defer most compensation to later phases of the contract.
Antitrust authorities went after AIA in a way that makes architects hesitant to
share fees info. Design development is a small component of fees received; most
is paid at the end. When offering services a la carte, architectural firms
incresae the cost of schematic design as a stand-alone service. Finally, for
many reasons, the contract is terminable at the convenience of the owner. This
allows owners to engage in opportunistic conduct: hire more expensive architect
to design, then fire her and hire a cheaper architect to oversee the grunt
work.
 
Thus, architects will hesitate to reveal design information
early in the process for fear of misappropriation, but owners want to know that
information before fully committing. 
Pre-AWCPA rights provided strong rights against appropriation by owners;
until the building is built, there is no built building from which to copy,
which can then be copied—but by then architect will have received all the
necessary fees.  So pre-AWCPA rights
provided the minimum rights necessary to get the incentives right.
 
Almost all post-AWCPA cases fall into two categories: (1)
architect v. owner, same as pre-AWCPA. 
(2) suits against strangers involving cookie-cutter, model-home
developers/architects, where expectation is that cost of design is to be
recouped over the sale of many copies. 
Architects for specialized projects aren’t using their AWCPA rights.  Future work: why not?  Is post-AWCPA copyright just very thin?
 
Rebecca Curtin, Contractual Origins of Authors’ Rights:
Looking for deals showing an idea of literary property not dependent on
possession of the actual manuscript. 
Earliest evidence of authors’ contracts is in Stationers’ Register
itself: “Entered for his copy”—might not even name the author, but would name
printer/bookseller who entered the copy. A handful of different entries: The
Treatise of Melancholy by Timothy Bright, Oct. 1586; Bright promised not to
meddle with the printing of the book until sold.  One of the ambiguities of the time was how
soon or whether authors would have the right to reissue a new, altered,
abridged, or revised version.  Stationers’
copyright was protection only against literal copying, so authors putatively
(others as well) could abridge or otherwise create new versions.  Here, the parties negotiated to prevent
competition from the most desirable source, Bright himself.  Although this isn’t about a strong
reversionary right, we see authors & publishers trying to work out the
problem of literary property on a contractual basis.
 
1607: a note that it’s agreed that this copy shall never
hereafter be printed again without the consent of Mr. Ford the author.  A retention of rights.  Piggybacking off of the ability of the
bookseller who entered the copy to vindicate those rights.  That right doesn’t depend on physical
possession of manuscript; leverages contract to control the work. There’s still
an ambiguity: whether Ford is free to deal with another bookseller.
 
Another memorandum: seller promises not to reprint w/o
author’s consent, and will surrender copy to him when he shall require it.  Parties have advanced to thinking about the “masters,”
as it were.  Intended it to be used as
evidence in court in the event of a dispute.
 
Contracts become more complex over time—Milton’s contract
for Paradise Lost called for contingent payments; he got more money if the
first run sold out, and more if a second/third run sold out.  Total potential: £20.  Also
included duty to account; emergence of author as commercial dealer.  1690s: contract b/t Tonson and Dryden
includes complex compensation provisions, both up front and investment on
Tonson’s part to allow Dryden to resell copies as part of his compensation.  Language isn’t very clear separating delivery
of manuscript from right to exclusively print; they don’t always make the
distinction.  Very clear language borrows
from vocabulary of property in 1709, just before Statute of Anne: “sole right
and title” for a complete copy, “and 50 copies for my own use.”
 
Authors were far more active in market as proprietors than
we’ve given them credit for.  Idea of
authors as owners can be shown in the transactions they undertook.
 
Zvi Rosen, Saurabh Vishnubhakat, Empirical View of Copyright
Registrations and Renewals under the 1909 Copyright Act
 
No statistics exist prior to the Copyright Act of 1870.  Until 1897, there are statistics by class and
year.  No records for 1897, when they
moved buildings.  1898 and beyond: annual
reports with basic statistical information. Catalog of copyright entries begins
publishing in 1891; published for Customs agents to enforce manufacturing
clause, but it was ineffective for that and people quickly used it for
registration info.  CCE expanded over
time to add more information; 1947: began including statistics on renewal.
 
1909 Act: need publication with notice, then registration
and deposit.  So, did authors register
shortly after publication under the 1909 Act? 
Until renewal became optional, 98% of renewals were registrations for 28
years earlier; almost everyone registered pretty much right away. Even in 2005,
it’s 76%.  So renewal data can be used to
determine renewal rates as percentage of registrations. 
 
Annual reports turn out to be only kind of helpful,
though.  Ratio of registrations in annual
reports to registrations in CCES, also same issue w/ renewals: a lot of
variations (it doesn’t match the calendar year).   Registration
#s: Books dip in Great Depression while music seems to go up.  Photos: spike and then drop, lower in 1977
than they are in 1900.  Other categories
have their own curves.  Mapping copyright
against economic panics: you can see for all of them more or less there’s a
subsequent dip in © registrations.
 
Percentage of all renewals by filing year: Renewals that
mention an initial registration after 1978 and renewal after publication—this would
skew the calculation of renewal right. 2005: a lot of people filed a
registration and a renewal in the same year in order to be timely.  [I would guess for termination of transfer
reasons.]  Renewal rate for all registrations
1919-present.  1962: extension of renewal
term; 1978; 1992 becomes automatic and renewals decline.  47-year term: renewal rate gets substantially
higher and stays that way.  Renewal rate
for 1947-1961: 12%; goes up to 15% until 1977, when term was being consistently
extended; then went up to 20%. Very little variance year by year within
periods.  The one from 2005 is unusual
because it became increasingly known in business that filing was unnecessary.

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