Conflicts Between Copyright and the First Amendment After Harper & Row, Publishers v. Nation Enterprises

The relationship between copyright and the first amendment has been discussed repeatedly in the past fifteen years. A free speech privilege has been asserted as a defense in many copyright infringement actions, and the topic has been the subject of lively academic debate. Although no court has held an infringement claim to be defeated by a first amendment defense, considerable attention has been paid to the potential conflict between copyright and free speech interests. Commentators have speculated that in some situations copyright protection could impermissibly abridge the first amendment. The United States Supreme Court\u27s decision in Harper & Row, Publishers v. Nation Enterprises, in which the Court refused to create a “public figure exception”\u27 to copyright, finally resolves some of the questions about the interplay between copyright and free speech principles, but will not cease speculation about the need for a first amendment exception to copyright. This article analyzes Nation Enterprises and discusses its impact on the relationship between copyright and free speech interests. It asserts that the Copyright Act and the first amendment are effectively accommodated by the Supreme Court\u27s conception of copyright as the engine of free expression, its approach to the fair use doctrine, and its recognition of the idea/expression dichotomy. This thesis is defended by reexamining the decision in Time Inc. v. Bernard Geis Associates in light of Nation Enterprises. This article concludes that as a consequence of Nation Enterprises there is no need to define an independent first amendment or public interest defense because copyright\u27s existing internal structure already limits its application to a constitutionally permissible sphere

Due Process Rights Before EU Agencies: The Rights of Defense

This Article discusses the procedural safeguards that have been recognized in the EU and the parallels between procedural due process in the United States and the rights of defense in the EU. It compares these respective rights and safeguards and explains how U.S. and EU procedures for agency adjudications are converging. Part II sets out the fundamental principles of American due process and EU right to be heard jurisprudence. Part III provides a detailed analysis of the rights of defense in the EU and highlights how this bundle of rights parallels the rights to notice and opportunity to be heard in the United States. Part IV discusses four of the significant components of the rights of defense: adequate notice, the opportunity to make one\u27s views known to the administration, the right of access to documents in the administration\u27s files, and the requirement of reasoned decisions. The Article concludes that notwithstanding the infrequent utilization of adversarial hearings in EU administrative adjudications, the procedural safeguards provided in adjudicative proceedings before the Commission and EU agencies satisfy the U.S. conception of procedural due process. These procedures are essential for protecting and maintaining the rule of law in the EU, as well as in the United States

Thin But Not Anorexic: Copyright Protection for Compilations and Other Fact Works

Questions about the copyrightability of compilations and other low authorship fact works, and about the scope of protection, have continued to trouble courts long after the Supreme Court\u27s landmark decision in Feist Publications, Inc. v. Rural Telephone Services Co. in 1991. Justice O\u27Connor\u27s opinion, explaining why a standard white pages telephone directory did not meet the constitutional and statutory requirements for copyright protection, defined an original work of authorship as one that is independently created by its author and that evidences at least a minimal level of creativity. The latter requirement has been elusive, in part because Justice O\u27Connor defined creativity by negative example, describing how an author\u27s efforts in preparing a compilation might not satisfy the requirement. This Article, with the help of many post-Feist opinions, elaborates on Justice O\u27Connor\u27s guidance for determining whether a compilation or other low authorship work is entitled to copyright protection and, if so, whether the work has been infringed. It was observed forty years ago to make the copyright turnstile revolve, the author should have to deposit more than a penny in the box, and some like measure ought to apply to infringement. This Article explains how much more than a penny is needed to get through the turnstile and that courts have been relatively consistent in applying Feist in a variety of contexts, thereby ensuring that copyright does not improperly extend to facts, ideas, systems and concepts. Traditional case-by-case application of the fundamental principles of Feist is working well and the sweat of the brow rationale for protection has not been resurrected

Congressional Authority over Intellectual Property Policy after Eldred v. Ashcroft: Deference, Empty Limitations, and Risks to the Public Domain

The United States Supreme Court upheld the Copyright Term Extension Act of 1998 (CTEA) in Eldred v. Ashcroft. The Court ruled that Congress had not exceeded its authority under the Copyright Clause by extending the copyright term twenty years and applying this extension retroactively to existing copyrighted works that otherwise would have entered the public domain at the end of their current, nonextended terms. The majority found a rational basis for CTEA and showed great deference to the authority of Congress to set policy that, in its judgment, effectuates the aims of the Copyright Clause. Although this deference to Congress\u27 judgment is not out of the ordinary, the degree of deference that permeates the majority opinion in Eldred fuels the debate regarding congressional authority under the Copyright Clause and other provisions of the Constitution to alter fundamental principles of United States\u27 intellectual property policy announced in cases like Sears, Roebuck & Co. v. Stiffel Co.; Compco Corp. v. Day-Brite Lighting, Inc.; Graham v. John Deere Co. of Kansas City; Bonito Boats, Inc. v. Thunder Craft Boats, Inc.; TrafFix Devices, Inc. v. Marketing Displays, Inc.; and Dastar Corp. v. Twentieth Century Fox Film Corp. In these important decisions the Court addressed the public\u27s right to use inventions and works of authorship that are in the public domain because of an expired or invalid patent, or an expired copyright. It struck down attempts to restrict the copying of public domain works under state unfair competition law and Lanham Act theories of relief. Notwithstanding Congress\u27 authority to enact intellectual property laws, like the Lanham Act, that are beyond the scope of the Copyright Clause, the Supreme Court has been troubled by interpretations of trademark and unfair competition law that affords patent-like or copyright-like protection evading the “limited times” restriction on patents and copyrights imposed by the Constitution, and thereby attempts to grant proprietary rights over materials in the public domain. These decisions underscore the Supreme Court\u27s statement in Bonito Boats that the Copyright Clause serves as a limitation on congressional authority as well as a grant of power to the legislative branch. They are consistent with the Court\u27s historic copyright jurisprudence that emphasizes the public purposes embodied in the Copyright Clause instead of focusing on the proprietary interests of authors and/or copyright owners. On the surface, Eldred is not at odds with decisions like Dastar, WalMart, and TrafFix because Congress passed CTEA under its Copyright Clause authority and CTEA did not remove works from the public domain. Those decisions involved interpretation of the Lanham Act, a statute enacted by Congress under its Commerce Clause authority. Dastar even cites Eldred for the proposition that Congress cannot create a species of perpetual patent or copyright. Still, given the Supreme Court\u27s expansive statements in Eldred about the authority of Congress under the Copyright Clause coupled with its treatment of several of its previous statements on intellectual property policy as well as its general reluctance to strike down legislation, it is appropriate to ask whether there are any limits on the Court\u27s deference to Congress in setting intellectual property policy under the Copyright Clause. Does Congress enjoy a carte blanche to legislate on intellectual property matters as it deems appropriate? Has the Court backed away from its posture regarding copyright law expressed in the Feist decision to return to a relationship with Congress on copyright law that is deferential to the point of servility? This article discusses these post-Eldred decisions, the expansive authority of Congress under the Copyright Clause, the meaning of the Clause\u27s limitations in the face of the Court\u27s deference to congressional authority, and the significant risk of encroachment on the public domain resulting from Congress\u27 exercise of power under the Copyright Clause. Recent decisions, applying Eldred to uphold challenged legislation, show that it may not be necessary for Congress to turn to its authority under the Commerce Clause or the Treaty Power in order to enact legislation that arguably escapes the limitations in the Copyright Clause. Given Congress\u27 exercise of general legislative powers, the Court\u27s deference to Congress\u27 judgment in exercising its considerable power under the Copyright Clause as well as its historic reluctance to strike down intellectual property legislation, the Clause\u27s limitations on congressional authority could become meaningless and this puts the public domain at risk

Copyright Law and Your Neighborhood Bar and Grill: Recent Developments in Performance Rights and the Section 110(5) Exemption

This Article attempts to clarify the chaotic state of the law concerning performance rights. First, it briefly summarizes the history of this right and discusses some of the problems Congress sought to resolve when it passed the 1976 Act. Second, it outlines several of the Act\u27s key provisions on the performance right. Finally, it discusses the recent decisions which have interpreted these provisions and analyzes their impact on the activities of commercial establishments. These decisions show that the pertinent sections of the 1976 Act provide reasonably clear guidelines outlining the ways in which copyrighted works can be publicly performed or exhibited without fear of infringement