Copyright Principles:
An Ongoing Inquiry
*

Paul Edward Geller



    In response to the current copyright crisis, we venture ten principles here. This crisis has arisen as the media have progressed from print to the internet. Meanwhile, copyright law has been made more complicated, but less workable and cogent. Principles, intended to help us think our way though the crisis, are unpacked and linked to illustrations below. To see all these principles set out together, go to the end of this inquiry.[1]

 

     Which and Whose Rights? In What?

 

    What rights for creators? In English, we speak of “copyrights.” In most languages, one refers to “authors’ rights.” Diverse rationales are given for such rights, however designated. Copyright is to enhance culture by inducing authors to make and market creative works. Authors' rights are, as well, to do justice to key interests creators personally have in such works. In view of both aims, we propose to encapsulate such rights in the author’s core right elaborated below. We start by asking: what conduct should this core right entitle its holder to have constrained? Next we ask: who initially holds this right? with regard to what subject-matters?

 

1.  The Core Right: Each author has the core right to disseminate her own creations, but no one may exercise this right to restrain others from creating or disseminating their own works.

 

    Copyright law started by recognizing authors’ rights to control the printing and distribution, and then the live performance, of their works to the public. With technological progress, the media for conveying such creations to ever-more members of the public have both proliferated and converged. Copyright law has responded by multiplying rights that may be subsumed under the right of communication or making available to members of the public.[2] In our first principle, we posit the overall core right of dissemination, entitling each author to control how her creations reach others, ultimately the public at large. But how may diverse authors, each elaborating her own works, assert such rights without finding themselves pitted against each other?[3]

 

    Look at Hiroshige’s prints and at Van Gogh’s studies of these prints. From Hiroshige’s woodblock prints, Van Gogh made studies in oil paint. Imagine, hypothetically, Hiroshige working in the near past and Van Gogh in the present. Should Hiroshige be entitled to have Van Gogh stopped from reworking his prints in paintings, however creatively? Bear in mind that authors, asserting their core rights, may have acts constrained only to control the dissemination of their own works. In such a right, Hiroshige would find no basis on which to have Van Gogh stopped from merely making studies of his prints in private. To estimate the full scope of this core right, ask: what may Van Gogh do with his own studies outside of his own studio? For example, without Hiroshige’s consent, may Van Gogh release these studies to members of the public at large or authorize others to do so?[4]

 

    Suppose that, from the woodblocks for Hiroshige’s prints, a workshop, other than any he has authorized, makes prints.[5] Hiroshige may invoke his core author's right, as we elaborate it here, to have this unauthorized re-printer prevented from publishing such mechanically made copies of his “own” creations. But we can tell Van Gogh’s works apart at a glance: into his studies of Hiroshige’s prints, Van Gogh has creatively woven in materials and forms that could not have been routinely generated. From one work to the other, coloration shifts from muted to intense, staged planes give way to active strokes, and emotional tone goes from contemplative to dynamic. Under our first principle, the law ought not entitle any one author, like Hiroshige, to have others barred from contributing to culture with their own creations. Thus, in this case, a court may not preclude Van Gogh from disseminating his own works but, as we shall see below, may award Hiroshige other relief.[6]

 

2.  Rightholders AND Subject-Matters: Each author has rights only in what each creates in any work that can be disseminated, but neither in techniques nor in materials or forms insofar as these are generated by techniques.

 

    Authors have rights in works they create once others can perceive these works. Consider a jazz group improvising in a jam session: the musicians may exercise authors’ rights over the dissemination of any work they create that others can enjoy in listening to it.[7] Suppose that, in our example, the group created most of its music playing as a team, while individual members created some of the music, improvising distinct stretches, each quite alone. Authors’ rights initially belong to the group for any work it improvises together and to members for such of their solo riffs as constitute works.[8] Creations being protean, we can only provisionally define  the materials, inside their works, in which authors may assert their rights. These rights apply to texts, images, and other cultural materials insofar as authors pull these together to give rise to new sense.[9]

 

    Any such definition encounters limiting cases. Consider these designs: Alvar and Aino Aalto’s chairs and Charles and Ray Eames’ chairs. The Aaltos were pioneers in designing chairs that were made of plywood molded into simple curves. The Eames went on to design chairs that they made with their new models and techniques for molding plywood into compound curves. While copyright protects cultural materials creatively brought together into works, design or patent rights protect inventive and industrially usable models or techniques.[10] Suppose, for example, that a manufacturer used the Eames’ chair to make a model for molding similar chairs to seat the human body comfortably and, thanks to improvements on the Eames’ techniques, more solidly than before. What result if the Eames could have copyright enforced in their design to stop the competitor from making and marketing its technically improved version? The Eames could thus monopolize their models and techniques for manufacturing furniture in the light of ergonomics. Any such monopoly, if effectuated under copyright law, would last longer than it would under design or patent laws. Furthermore, copyright law would not impose stringent conditions of priority as would such laws of industrial property. Many provisions of law already prohibit substituting copyright for such industrial property to protect techniques. Our second principle accordingly does not allow authors’ rights to be applied to preclude the use of techniques.[11]

 

    All culture may be said to ride on the tracks of techniques. As just indicated, courts ought to protect only cultural creations with copyright. But they may not thus protect technical innovations, even those for reworking cultural materials. Consider another pair of historical examples, once again only hypothetically, as if the exemplary works were protected today. Armed with rights as an author, Gerard Manley Hopkins could prevent the dissemination of his poems as written, just as Georges Seurat could that of his Sunday on the Grande Jatte as painted. By contrast, such rights would not entitle Hopkins to bar others from writing with the sprung rhythm he had developed out of common speech, nor Seurat to bar others from painting with the pointillist method he had distilled out of impressionism. By parity of reasoning, dramatists are free to write tragedies in following Aristotle’s old rule, to wit, that of having a hero act with hubris and fall, or in following new plots they themselves elaborate. Accordingly, writers may pen myriad texts in following story lines, stylistic devices, etc., and artists may make myriad images following compositional schemes, color palettes, etc. Turn to borderline cases where it is a matter of works falling within a tight range of forms constrained by technical logics or, at the limit, of routinely generated texts, images, or the like. For example, directories can sequence contact information into only a few easily consulted orders, and maps can feature only marginally varied lines, colors, and icons to chart locales. At the limit, our second principle limits courts to enforcing authors’ rights only in what they create in works, but not in what techniques generate, say, as these are programmed into software.[12]

 

     What Relief for Moral Rights? For Economic Rights?

 

    What may courts do for authors whose rights are violated? They may order other parties not to do certain acts or to do others. Here we outline principles to guide tailoring such remedies for authors’ rights. Courts have to move as coherently and cost-effectively as they can from the rationales of these rights to relief. How then to take account of our first and second principles, which condition the core right over the dissemination of works? Where, in principle, courts may not stop dissemination, they may grant other relief, notably monetary awards.

 

3.  Moral Rights: Authors may have themselves and their works respectively referenced when these are disseminated, be awarded actual damages for failure to so reference, and obtain equitable relief for impairments to integrity, notably for those made without creativity.

 

    Return to our example of Hiroshige’s prints and Van Gogh’s studies. It has long been accepted for artists to take each other’s works as models. Still, Van Gogh himself had “scruples of conscience” that his exercises in imitating other artists might constitute “plagiarism.”[13] Indeed, how could we appreciate Hiroshige’s graceful prints in muted shades if we accessed them only through Van Gogh’s startling studies in oil with their intense colors? Hiroshige’s prints were implicitly referenced in Van Gogh’s studies; however, if we did not know about the prints in looking at the studies, we could miss the distinct accomplishments of these different artists. To avoid misunderstandings by audiences, most laws protect moral rights, notably the rights to be named as author of a work and to relief for impairments to the integrity of a work. Subject to our first principle, our third principle contemplates distinct remedies for moral rights: references, monetary awards, or other equitable relief.

 

    We propose to group most of such remedies under the rubric of the right to reference. First, to assure attribution, an author may have her name and role referenced as her work is disseminated; in the alternative, to assure her anonymity, she may have such references removed. As a second remedy, to protect the integrity of her work as received by audiences, an author may have the work itself referenced, optimally linked online, as it is disseminated, even in obviously derivative forms. These remedies would substitute for the more restrictive orders that, to protect such integrity, many courts have issued in the past to stop the dissemination of some creatively reworked versions altogether. Imagine, again quite hypothetically, another historical example: Beaumarchais wrote the play on which Mozart and Da Ponte based their opera The Marriage of Figaro, but with the original text truncated to evade censorship. Should a court protect such a dramatist’s interest in maintaining the integrity of his play by prohibiting the composer and librettist from staging their opera or from publishing the libretto for this opera? Pursuant to our third principle, authors may have themselves and their works recognizably referenced, but may not have the dissemination of creatively recast works altogether blocked. But what if no reference, whether to the author or to the work, is made upon dissemination to the public? As a third remedy, an author may obtain damages caused by the failure to provide due reference.

 

    Further remedies may be contemplated in cases where a work is disseminated in an impaired but not clearly creative guise. What if the integrity of a work suffers, for example, when it is disseminated in an error-ridden or truncated publication or in a blurred transmission? Given no creative reworking, the court need not consider the interests of any eventual later author or of eventual audiences, and it may preclude dissemination of the work as merely impaired. However, in harder cases of arguably creative reworking, the court may require that any mere impairment be corrected in further dissemination insofar as circumstances equitably allow, and it may award damages for any actual harm. Relief becomes still harder to fashion in cases of only one or very few embodiments of a work, notably a single art object or short print run, that might be modified or destroyed. Authors’ rights can then get entangled with other rights, most often with the rights of tangible property of whoever owns the object at issue. Our third principle calls upon courts to exercise equitable discretion in undertaking the Solomonic task of reconciling any opposing claims.[14] Under our sixth principle, courts may equitably take account of public interests to reinforce, or to outweigh, authors’ private interests. For example, a sculptor created The Tilted Arc for a public space, but people frequenting the space wanted it removed. The authorities in charge decided to relocate this sculpture, and the courts refused to overturn this decision.[15]

 

4.  Economic Rights: Authors may obtain orders against the unauthorized dissemination of their own works, even in marginally creative derivative forms if irremediable harm is likely, and may be awarded actual damages or profit shares for unauthorized dissemination in any form.

 

    Authors invest time and energy in writing texts, composing music, and configuring images. But authors, like enterprises marketing their works, risk losing the fruits of their investments to others who, unless barred by the authors’ rights, easily enjoy or profit from taking works. After the advent of print, copyright was instituted to protect authors and publishers against having markets lost as pirates quickly reset type or plates and sold cheap reprints. As new media developed, culminating in the internet, courts enforced authors’ rights to control dissemination in markets that these media opened up. But such rights have not extended to copies already sold, nor to markets throughout which works had already been released, in either case with the authors’ consent.[16] Courts also have to find enough taken from any work at issue to convey meanings that the work as a whole generates by pulling cultural materials together.[17] Under our fourth principle, courts may tailor injunctive or monetary remedies for the usurpation of markets by the unauthorized dissemination of such a taking.

 

    Our first principle entitles each author to have such dissemination of her own work, as it stands, prevented or stopped. But it does not necessarily entitle any author to have dissemination constrained of any other author’s further work recasting her work, notably as another’s creative translation, transformation, or adaptation. Consider contrasting examples: on the one hand, to the extent computerized, a machine translation would only mechanically reprocess a text and, as such, be enjoinable from being released to the public; on the other hand, an inspired translation of a rich and subtle text, for example, a poem by Mallarmé, ought not necessarily be so blocked. What if one work is closely derived from another in some but not all aspects, say, when dialogue is taken almost verbatim from a novel into a film, or what if a close reworking is shared only in a limited circle, say, in a fire-walled intranet?[18] Courts may then ask: would dissemination of the derivative work usurp any market to which claimant’s work now appeals, or could it otherwise threaten to cause irremediable harm? For example, could text routinely edited or abridged, albeit without consent, substitute for enjoying an author’s authorized text? If it could, at least a preliminary order prohibiting exploitation may be in order.[19]

 

    For the unauthorized dissemination of their works, even creatively recast, authors may recover actual damages or profit shares. In assessing damages, a court may ask how much, on the marketplace, has not been paid the rightholder as a result of the infringement. But what about a market that the work does not now address, for example, when a character delineated in an animated film is used as the model for a toy? Here demand for the film might be increased, since more members of the public might want to see the film once they see the toy or even only advertising for the toy. In such cases, even if no harm has actually arisen, equity calls for restituting to an earlier author a fair share of the profits that a derivative work has made by incorporating whatever is protected in the work at issue.[20] Consider Dashiell Hammett’s The Maltese Falcon, with its suspenseful plot and snappy dialogue, which John Huston largely incorporated in adapting this novel into his film of the same name. But Hammett’s story took on new life in Huston’s motion picture, thanks to creativity in visually articulating the plot, in directing actors, and in otherwise putting the text on screen. Suppose, quite hypothetically, that the studio producing Huston’s film had not contractually obtained rights to Hammett’s novel, as indeed it had, before making and marketing this film.[21] Under our fourth principle, the studio would, absent transfer of such rights, have risked facing the novelist’s suit for a possibly uncertain monetary award.[22]

 

     What Uses Are Exempted? What Relief Limited?

 

    How far should authors’ rights extend? Copyright law often exempts marginal acts of redissemination from liability and limits the duration of rights. We here encapsulate principles underlying most exceptions and limitations, largely to economic rights. Unfortunately, copyright law is sometimes made without full regard for the law as a whole. To correct this myopia, overriding law may justify limiting copyright relief in certain cases.

 

5.  Exceptions: Authors’ rights, save the right to reference, do not apply to any single redissemination that common sense finds necessary for critical or informational purposes, such as commentary, explanation, illustration, news reporting, archival access, research, or teaching.

 

    Works are often redisseminated in cases in which it tends to be hard for individual users both to anticipate harm done to rightholders and to obtain their consent. Consider these examples among many others: a scholar might not find it feasible to obtain authorizations to illustrate a book on art history with photographs of many art works; a reporter might not have the time to obtain consent to include a tune played, or a painting hung, in the background of a current event being covered; a librarian, investigator, or teacher might not find it feasible to license in advance presenting archival excerpts to a research group or a class as inquiry or instruction proceeds. Copyright laws generally exempt any such single use from liability if it redisseminates only a work or works licitly made public and if, as our third principle requires, it references any source and thus author.[23]

 

    Our fifth principle requires that legal provisions for such exceptions allow lay people to rely on their common sense in using works according to the terms of the provisions. Reconsider typical users: commentators and scholars, reporters and investigators, archivists and librarians, researchers and teachers, or others who want to make a point or to further inquiry. Such users are frequently unable to evaluate the impact that the redissemination each contemplates would have on the normal exploitation of any work and on any author’s or other rightholder’s interests.[24] Still, copyright law tends to allow such redisseminations for a pair of reasons: even if they do not make new works available, they tend to feed creativity; if non-recurring, they tend to avoid usurping markets for the works they convey. The law has to advise users of what they may and may not do with protected materials in the light of their own purposes and circumstances that they know first-hand and can understand in terms of common sense. Our fifth principle allows any redissemination of a work licitly made public if it is made for a critical or informational purpose and if it refers to any source of materials used, including any author. To satisfy the criterion of common sense, a user may ask, for example, how much of a work to redisseminate to meet her purposes and to whom to limit access to the work for these purposes.[25]

 

    These exceptions complement limitations following from other principles. Recall that our first principle insulates the creative recasting of a work from orders to bar dissemination. By contrast, under our fourth principle, the unauthorized release of a derivative work to the public could trigger monetary liability. The exceptions set out here do not require users to introduce any creativity into materials they redisseminate, nor to weigh costs and benefits resulting from their uses on the marketplace. Rather, the criterion of common sense applies only as to users’ purposes: for example, commentators illustratively using works have to keep their quotes to the point or to cut sampled images down to their contexts; reporters may include entire works, but only fleetingly, in news releases to the public; investigators may selectively quote or reference works in their reports. Archivists, researchers, or teachers may share large excerpts, or even full works, with colleagues or students, while limiting the size of the groups with access to the materials used. Suppose that a user shows that a redissemination of materials licitly made public serves her own critical or informational purposes and satisfies the conditions of reference to source. On that showing, such a use would trigger liability only to the extent that it goes clearly beyond what common sense requires for the user to meet her own purposes in her circumstances.

 

6.  Limitations: Authors’ rights are to be legislatively limited in their duration and may call for equitably limited remedies over time; overriding laws may limit relief in order to avoid undercutting such aims as assuring privacy, free expression, or open communication.

 

    To start, authors find their rights limited in the scope of their core right itself. Under our first principle, no author’s right justifies precluding others from exercising their authors’ rights; under our second principle, no such right justifies constraining the use of techniques. Over time, authors’ interests in the dissemination of their own works become attenuated: thus copyright laws have economic rights lapse after terms that statutes specify, while courts may equitably take the passage of time into account in tailoring remedies.[26] Though moral rights may in theory last longer than economic rights, courts may in practice decline to provide relief for authors’ personal interests that have waned with time. For example, French courts did not enforce Victor Hugo’s moral rights to stop the release of a sequel to his nineteenth-century classic Les Misérables.[27]

 

    Further, as contemplated in our third and fourth principles, limitations based on overriding laws may come to bear on relief to be fashioned for authors’ rights. Constitutional and other laws may protect basic rights, notably privacy, freedom of self-expression, and freedom of access to insights and information. A court may avoid interfering with such laws or impairing such basic rights or freedoms by narrowly applying copyright law from case to case. For example, creative images of characters were lifted out of the French Asterix comics and then creatively critiqued in German parodies called Alcolix, Isterix, etc. To respect the parodists’ artistic freedom under the German Constitution, the courts adjusted their infringement analysis of these parodies. In particular, they had to take account of typical readers’ sense of the differences between the works parodied and the parodies themselves.[28] Parodies and comparable critical uses may also be allowed under our fifth principle.

 

    Finally, relief may be limited to have an author’s right proportionately achieve its aims in any one case. Basic rights or freedoms, as well as general principles of law, form parameters for such proportionality. Consider the case of photographers who, on that basis, challenged infringement awards and fines they had incurred for taking pictures at fashion shows without consent. In principle, the European Court of Human Rights agreed that, if disproportionately high, such monetary relief and sanctions could impair basic freedoms, notably that of expression.[29] General principles of law become especially pertinent when we shift from specific creations at issue in civil infringement suits, on the one hand, to criminal suits for mass takings or to self-help and other measures restricting network access, on the other hand. In particular, as explained under our ninth principle, courts may not impose liability arbitrarily or unforeseeably; nor may they enforce such self-help or other measures filtering or blocking access as they could not themselves constrain by judicial action.[30]

 

     How May Authors Share Rights? Others Exploit Them?

 

    Who initially obtains rights in creative works as these arise? Our response, in our first and second principles, seems simple: authors themselves. But this response calls for caveats when authors work together or for someone else. To whom may authors’ rights be subsequently transferred? Authors may contract with others to exploit their works. The law may also effectuate transfers of their rights. Who, then, may assert these rights?

 

7.  Allocation: Authors share rights in their own work among themselves, or with any principal, subject to the parties’ equitably construed consensus; authors may transfer economic rights to third parties through restrictively construed contracts or grants.

 

    Think, for example, of dictionaries, of feature films, and of software. Many authors might collaborate at once on such works, which are often made on someone else’s orders, for example, on the job or on commission. Whatever such circumstances of creation, our seventh principle holds to our first and second principles: flesh-and-blood authors themselves alone initially have rights in their respective works vested in themselves. How then to allocate authors’ rights in creations that arise out of their collaboration in pairs or teams or out of employment or other such relationships with other parties? Our seventh principle sorts out authors’ rights in such creations by equitably construed consensus to the extent that no contract clearly transfers such rights.

 

    Distinguish between a work made by authors alone and one made working for someone else. On the one hand, suppose a videogame or software created worldwide online by many authors over time. Assume no employer or other director of this ad hoc team, nor any explicit agreement among its members. Our seventh principle instructs courts to give equitable effect to this team’s implicit consensus in allocating its members’ rights. For example, informal agreements among members of the team, as well as contracts that are commonly used in network circles, could serve as evidence of the team’s consensus.[31] On the other hand, turn to a work made on the job for an employer, another party directing creative efforts, or a commissioning party: if no contract expressly transferred rights in the resulting work, equity would come into play. Economic rights would be reallocated according to how a court understood the authors’ underlying relationships with their employer, director, or other such principal. Of course, it would not be prudent to invest in an enterprise employing or commissioning authors unless their economic rights were contractually settled upon engagement.

 

    Authors may have their works exploited across an increasingly complex media universe. For this purpose, they may assign their economic rights all at once or piece-meal, grant licenses for uses more or less exclusively, or waive rights relative to other parties. There are multiple reasons why it can be hard to predict how works might be used in the future: for example, creations themselves are protean and can be reworked into versions that might appeal to unexpected markets, while media progress can also open up new markets unpredictably. Given the potentially diverse and often-uncertain future uses of creations, all contractual terms assigning rights or licensing uses to parties outside a creative endeavor, that is, to parties other than to fellow authors or to employers or other principals, are to be restrictively construed.[32] The burden lies on such assignees or licensees contractually to specify the rights in future uses for which, in negotiating, they bargained: otherwise, their contracts may not be read to alienate authors’ rights. By parity of reasoning, third parties claiming waivers of rights have to show the terms by which authors specifically renounced the rights in question.

 

8.  Chain of Title: A prior transfer of an economic right prevails over a subsequent transfer, subject to legally designated notice, but rightholders may not assert such rights in works licitly made public if they do not reasonably authorize uses.

 

    Copyright commerce keeps growing ever-more complex on an increasingly worldwide scale. To vindicate authors’ economic rights across borders, what must a claimant then show a court? To issue an order under our third and fourth principles, a court has to learn of specific risks of violation and of harm. The court should also call for the claimant to show its entitlement to obtain relief under the rights asserted in the suit at bar. For any final monetary award, these principles call for a claimant to demonstrate both unauthorized dissemination and resulting damages or profits. Under our eighth principle, to pocket such monetary awards, a claimant also has to show that she is an author vested with the rights asserted or holds such rights through good chain of title.

 

    What transfers forge such chain of title? In most jurisdictions, if a party owning an exclusive right transfers it to one party and then later to another, the prior transferee may exercise the right against everyone else, including the later transferee.[33] However, some jurisdictions allow a later transferee to prevail over a prior transferee if the later transferee gives prior notice to the public, notably by recording the later transfer on a designated public record as required before the prior transfer is thus recorded. Unfortunately, global media have not yet been used to build up a networked system for giving notice of transfers of rights worldwide, nor any regime adopted for harmonizing the legal effects of such notice. In addition to contractual transfers, such a system could record transfers that have been effectuated by legal proceedings, for example, by foreclosure, corporate succession, or inheritance. The fact that no such system is available today inhibits the global dissemination and enjoyment of works by making it often hard to find parties entitled to authorize uses.

 

    An open market presupposes that rightholders are available to authorize uses and that they do not arbitrarily refuse to do so. They may not thus abuse any dominant market position, even one that the rights in question would enable them to occupy.[34] Imagine a case of a so-called orphan work: for example, an author assigns all rights to a publisher to exploit the work which is in turn only briefly released to the public. Afterwards, the publisher assigns these rights to a third party who ceases to market the work and gives no notice of its claims or whereabouts to the public: prospective users cannot then find anyone with whom to deal. Recall that, under our fourth principle, prospective users, by contractually acquiring rights to exploit works, may avoid suit on authors’ economic rights. By waiting in the wings unknown, a rightholder fails to negotiate uses, leaving prospective users with no such means to avoid suit. Our eighth principle equitably estops a rightholder, if absent from the marketplace for an already released work, from suing on such uses. A prospective user of an orphan work, if she has diligently sought the rightholder but without success, need not then fear incurring damages.[35]

 

     Who is Liable? Under Which Laws?

 

    Digital technologies allow claimants to program media to control access. Further, as media networks globalize, different parties become implicated in disseminating works from authors, through intermediaries, to users worldwide. Who, then, in this increasingly complex media universe, may be subject to orders or awards for unauthorized dissemination? To which laws should they be subject as creations cross borders?

 

9.  REmedies: Authors’ self-help may not be enforced beyond the scope of their rights, nor civil remedies imposed for specific acts that do not foreseeably lead to infringement, nor criminal sanctions for such acts not specified in statute.

 

    Copyright claimants can technologically code access to works or notify network services of infringing uses. Courts may, if petitioned, back up such private measures, effectively enforcing them with the State’s public powers. Judicial remedies could, for example, stop the circumvention of technological safeguards or compel network services to make works inaccessible online. Under our ninth principle, in deciding whether and how to impose any such relief, a court has to comply with the same conditions as our first through sixth principles dictate for remedies. Thus authors’ rights may not allow for judicially enforcing self-help measures to bar dissemination that may not otherwise be enjoined by law. For example, the Australian High Court refused to preclude the circumvention of measures that kept users from changing how they played videogames.[36]

 

    Copyright claimants have most often sued private parties for the unauthorized dissemination of specific works. Networks now enable the redissemination of works en masse, notably via file sharing, leaving suits for taking specific works with little impact on resulting infringement.[37] Claimants may petition for remedies against network services that are more or less directly implicated in such massive redissemination, say, as effectuated by users’ file sharing. However, the criteria for imposing civil relief have to allow parties, such as network services or users, to assess the risks that their conduct might result in illicit and prejudicial acts. Indeed, courts may impute liability only for conduct that, if not specified by statute, parties could reasonably expect to impair rights and to cause harm under the circumstances of the case. Thus no monetary liability may arise in any case for failing to avoid unforeseeably illicit or harmful acts, including file sharing, nor onerous orders imposed to forestall such acts. Courts are now experimenting with remedies against illicit file sharing.[38]

 

    A court exercises the State’s coercive powers in civilly enjoining acts. It does so even more intrusively in criminally punishing an infringer or in imposing sanctions such as extraordinary damages out of proportion to actual damages. Accordingly, the conditions for imposing civil injunctions seem to form necessary, but not necessarily sufficient, conditions for enforcing any such effectively punitive measure. In addition, the State, pursuant to the principle of legality, has to warn citizens, in the letter of the law, of the specific acts that may justify what amount to criminal sanctions. Our first as well as third and fourth principles allow for civilly enjoining the unauthorized dissemination of protected materials if distinct conditions, among others, are satisfied. First, close copies or transmissions of the work at issue are likely to reach the public; second, such dissemination makes irremediable harm likely. The first condition is precise enough, but the second is vague, so that our ninth principle calls on legislators to detail it in criminal law. Such law has to specify acts of dissemination to any public sufficiently defined to warrant criminal sanctions for violating authors’ rights. For example, the law may stipulate the minimum number of persons constituting a public for that purpose.[39]

 

10. Choice of Law: The cross-border infringement of authors’ rights is governed by the laws respectively in force where the work at issue is or might be received, subject to internationally compelling public policies in the field.

 

    The mustachioed, not the bearded, Marx once quipped: “These are my principles. If you don’t like them, I have others.”[40] Indeed, besides the nine principles just adumbrated, what about others that underlie the variegated laws of copyright and of authors’ rights worldwide? Increasingly, creations are disseminated across borders, and courts have to ask which of such diverse laws ought to govern cases of cross-border copyright infringement or commerce. Courts then face conflicts of laws, notably between or among such laws of different jurisdictions as arguably bear on the same cross-border case. How could our principles help courts follow such guidelines as the international regime of copyright treaties provides for resolving such conflicts?[41]

 

    A court, taking a cross-border case, might well be tempted to govern it by its own law, which it knows best. Suppose, however, that many courts adopted this provincial tactic in such cases: they would thus invite lawyers to take their chances shopping for a court that, as best as counsel for a party could guess, would apply the law most favorable to her own client. To avoid such choice-of-law roulette, we refer back to our first through fifth principles that lead to protecting authors’ interests in controlling the dissemination of their works, along with users’ interests in conveying their critiques or information, to specific audiences and in specific markets, ultimately to the public at large. Consistently with the international treaty regime, our principles accordingly lead to governing any case of cross-border infringement by the laws of the jurisdictions whose audiences and markets are respectively impacted, or about to be impacted, by any infringement alleged in the case.[42]

 

    Suppose that a mime, a U.S. author, creatively improvised a pantomime work live on U.S. territory. Suppose also that this work were recorded, and the recording posted online, by U.S. parties, and thus made available worldwide, all without consent. If, in any suit the author brought for infringement, a court were to apply only U.S. law, because the claimant was a U.S. national or her creation released by U.S. parties from the United States, it could preclude copyright relief on the grounds that the author herself did not authorize fixing her own work, as U.S. law requires. If the court rather applied the laws of the countries where the improvised work was to be received worldwide, most of these laws would protect the work once it could be enjoyed, even without any fixation. But how may a court, applying diverse laws country by country, each law governing imminent or actual reception within a given territory, fashion coherent and cost-effective remedies in any one cross-border case? The foregoing principles, consistently with the treaty regime and internationally compelling public policies, may guide courts as they thus apply diverse laws to a cross-border case.[43]

 

     The Principles Listed

 

    Now that we have unpacked our principles a bit, let us take a look at them all together. Click on each principle below to return to explanations offered for it above.

 

 1. The Core Right: Each author has the core right to disseminate her own creations, but no one may exercise this right to restrain others from creating or disseminating their own works.

 

 2. Rightholders AND Subject-Matters: Each author has rights only in what each creates in any work that can be disseminated, but neither in techniques nor in materials or forms insofar as these are generated by techniques.

 

 3. Moral Rights: Authors may have themselves and their works respectively referenced when these are disseminated, be awarded actual damages for failure to so reference, and obtain equitable relief for impairments to integrity, notably for those made without creativity.

 

 4. Economic Rights: Authors may obtain orders against the unauthorized dissemination of their own works, even in marginally creative derivative forms if irremediable harm is likely, and may be awarded actual damages or profit shares for unauthorized dissemination in any form.

 

 5. Exceptions: Authors’ rights, save the right to reference, do not apply to any single redissemination that common sense finds necessary for critical or informational purposes, such as commentary, explanation, illustration, news reporting, archival access, research, or teaching.

 

 6. Limitations: Authors’ rights are to be legislatively limited in their duration and may call for equitably limited remedies over time; overriding laws may limit relief in order to avoid undercutting such aims as assuring privacy, free expression, or open communication.

 

 7. Allocation: Authors share rights in their own work among themselves, or with any principal, subject to the parties’ equitably construed consensus; authors may transfer economic rights to third parties through restrictively construed contracts or grants.

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8.  Chain of Title: A prior transfer of an economic right prevails over a subsequent transfer, subject to legally designated notice, but rightholders may not assert such rights in works licitly made public if they do not reasonably authorize uses.

 

9.  REMEDIES: Authors’ self-help may not be enforced beyond the scope of their rights, nor civil remedies imposed for specific acts that do not foreseeably lead to infringement, nor criminal sanctions for such acts not specified in statute.

 

10. Choice of Law: The cross-border infringement of authors’ rights is governed by the laws respectively in force where the work at issue is or might be received, subject to internationally compelling public policies in the field.

 

     Conclusion: Changes in View

 

    Mere principles can discourage neither media enterprises from monopolizing culture nor computer-savvy users from massively sharing creations online without due consent. Our principles can for now at least serve to suggest new perspectives to courts facing hard cases increasingly endemic in copyright law. But where should ensuing jurisprudential developments lead? Here are a few guesses, some speculating about legislative reform.

 

    We have called for so fashioning rights for any author’s core right that other authors remain free to enhance culture. Moral rights need no longer entitle earlier authors to censor later ones for reworking their creations. Rather, authors may have themselves and their creations referenced as these are recognizably disseminated, damages awarded for any failure to so reference, and other equitable remedies tailored for non-creative impairment. Economic rights need no longer entitle any author to have the dissemination of others’ creative derivative works indiscriminately stopped, but authors may in any event have the unauthorized dissemination of routinely generated instances of their works enjoined. They may also obtain actual damages or equitable shares of profits for the unauthorized dissemination of their creations, even when these are creatively reworked.

 

    Turn to exceptions and limitations to authors’ rights beyond those following from our initial principles. Critical and informational uses are currently exempted from liability pursuant to broad doctrines such as fair use or to complex sets of specific exceptions. To make such doctrines and exceptions user-friendly, we have sought to formulate criteria to allow users to assess how much of works to use and audiences to address by recourse only to their common sense. Further, not only do legislators have to fix terms after which rights lapse, but courts may take account of the waning of authors’ protected interests over time when they fashion relief. Finally, courts may cut back on remedies in specific cases where constitutional or other overriding laws limit copyright to assure rights such as privacy, freedom of self-expression, or access to insight and information.

 

    Next we asked who owns and may exercise rights. Suppose that many authors contribute to the same creation as a whole or that an author contributes to a creation working for another party. The consensus of the authors, along with any party for whom a creation is being made, may be equitably construed to allocate rights among them. By contrast, contracts or grants by which authors transfer their rights to third parties, outside any creative endeavor, are to be restrictively construed. Entitlements to pocket monetary awards follow provable chain of title from authors to claimants. A prior transfer of an exclusive right trumps any later transfer, subject to prior notice. Users who try in good faith, but in vain, to license creations may defend against relief.

 

    Liability may now be imputed for infringement in complex network cases. Courts may not enforce authors’ self-help measures that block such network uses as are not themselves enjoinable. Nor may they impose monetary liability for acts that do not foreseeably lead to the illicit and harmful dissemination of protected materials. Nor may they impose punitive or criminal sanctions for such conduct as statute does not specify.

 

    Creations increasingly cross borders. Our principles, in line with the copyright-treaty regime, guide courts as they choose laws under which to fashion relief in cross-border cases. Given our core right, the law of a country should apply to any dissemination insofar as it risks or is impacting the audience or market in the country.



*    © Paul Edward Geller 2016. For all my texts in the field, along with my terms for your disseminating any of them, including this one, see my résumé.

[1]    As of January 4, 2016, this text revises the principles originally set out in Paul Edward Geller, Beyond the Copyright Crisis: Principles for Change, Journal of the Copyright Society of the USA, vol. 55 (2008), 165. Please email me all comments on this work in progress, as you now see it.

[2]    See WIPO Copyright Treaty, art. 8 (1996). Under our third and fourth principles, distinct remedies, corresponding to such rights, are available depending on the case. But the core right would not apply to reproduction alone, say, electronic storage in itself, absent the showing of some risk of illicit dissemination.

[3]    We here follow Kant’s basic principle of law calling for the consistent exercise of rights across society. See Paul Edward Geller, Delimiting Intellectual Property: Distinct Approaches to Spillovers, in Spory o własność intelektualną: Księga jubileuszowa dedykowana Profesorom Januszowi Barcie i Ryszardowi Markiewiczowi, ed. Andrzej Matlak and Sybilla Stanisławska-Kloc (Wolters Kluwer Polska, 2013), 293.

[4]    For prior analysis, see Paul Edward Geller, Hiroshige v. Van Gogh: Resolving the Dilemma of Copyright Scope in Remedying Infringement, Journal of the Copyright Society of the USA, vol. 46 (1998), 39.

[5]    Japanese artists traditionally provided drawings, from which such woodblocks were carved and, on their instructions, colored. Resulting wood “plates” were used repeatedly for printing, often later by workshops other than that of the initial tirage. Thus, in the case of any such work-product, it would be a complex and subtle matter to disentangle creative from technical contributions in order to assess these respectively. See Rebecca Salter, Japanese Woodblock Printing (University of Hawai’i Press, 2001), esp. 11.

[6]    Over time, copyright law has come to include authors’ rights to relief from others’ works derived from their own works, for example, translations, transformations, or adaptations that others make of their works. In setting out our third and fourth principles, we explain how our first principle may guide courts in tailoring remedies for authors’ moral and economic rights relative to later works drawn from their own works.

[7]    A purely relative distinction is often drawn between authors and performers. On the one hand, musicians, actors, etc., may be considered as authors as they improvise creatively on scores, scripts, etc. On the other, they may be considered as performers as their creativity is more muted, giving works different tonalities, shadings, etc. Under our third and fourth principles, remedies may vary depending on the creativity in question. Is there then any need for separate neighboring or related rights in performances?

[8]    Our seventh principle governs the allocation of rights in any creation made by authors working together, notably as a team, or else working either individually or together for someone else, notably an employer.

[9]    For works as global signs, see Paul Edward Geller, Toward an Overriding Norm in Copyright: Sign Wealth, Revue Internationale du Droit d'Auteur [R.I.D.A.], no. 159 (1994), 3 at 49-57 [part II.3], also: Must Copyright Be For Ever Caught Between Marketplace and Authorship Norms?, in Of Authors and Origins: Essays in Copyright Law, ed. Brad Sherman and Alain Strowel (Clarendon Press, 1994), 159, at 183-90.

[10]  See, e.g., Baker v. Selden, 101 U.S. 99 (1879). The U.S. Supreme Court here refused to recognize copyright in accounting forms which followed a “plan” of “ruled lines and headings.” Reasoning that the overall effect of providing remedies for any replication of such forms would have precluded their use, the Court declared that the matter fell into “the province of letters-patent, not of copyright.” Id. at 100-02.

[11]  This principle does not imply our acceptance of the present regime of industrial property. Of course, we need some legal regime to protect innovative techniques and models in appropriate fields and at appropriate levels. But that regime, currently design, patent, and related laws, lies outside the scope of the principles set out here. For further analysis, see Jerome H. Reichman, Of Green Tulips and Legal Kudzu: Repackaging Rights in Subpatentable Innovation, Vanderbilt Law Review, vol. 53 (2000), 1743.

[12]  See, e.g., Telstra Corporation Pty. Ltd. v. Phone Directories Company Pty. Ltd., [2010] FCAFC 149. The Full Federal Court of Australia here declined to recognize copyright in telephone directories in which factual entries were “overwhelmingly” compiled by computer systems that effectively executed techniques.

[13]  Letter of February 1, 1890 (no. 850), in Vincent van Gogh, The Letters, ed. Leo Jansen, Hans Luijten, and Nienke Bakker (Van Gogh Museum and Huygens Institute, 2009). He also here spoke of “translating” other artists but feared others “bothering or obstructing me under the pretext that I’m manufacturing copies.”

[14]  See, e.g., William Eden c. Whistler, Cass. civ., March 14, 1900, D.P. 1900, 1, 497. In this historically key case, the artist Whistler had refused to deliver a portrait upon the demand of Lord Eden, who had paid to have the portrait made of his wife. The French Supreme Court allowed Whistler to retain the portrait, subject to the following conditions: to protect the commissioning party, the artist had to make restitution of all payments received from Lord Eden and to pay him damages for non-delivery; to protect the model, the artist had to make her unrecognizable in any eventual display that he might make of the painting.

[15]  Serra v. U.S. General Services Admin., 847 F. 2d 1045 (2nd Cir. 1988). The U.S. appellate court, while recognizing “that the sculpture is site-specific and may lose its artistic value if relocated,” did not find Serra’s freedom of expression so impaired that the work could not be relocated. U.S. law has since codified moral rights for artists, but without always entitling them to prevent the relocation of their works.

[16]  See, e.g., Svensson v. Retreiver Sverige AB, C.J.E.U. 4th ch., Case C-466/12, Feb. 13, 2014, paras. 18-32, [2014] E.C.D.R. 119. Because authors had allowed the open posting of their works online, the E.U. Court of Justice found no “new” market reached by others’ linking to these works. In this case, the Court precluded the authors from controlling such linking, though considering it to convey works to members of the public.

[17]  Our second principle defines a work as a global sign with such meanings. See, e.g., Authors Guild v. Google Inc., Case 13-4829, Doc. 230-1, Oct. 16, 2015. The Court of Appeals for the U.S. Second Circuit here declined to find infringement by scattered snippets of books put online. It did not find the snippets to “re-present the protected aspects of the original work, i.e., its expressive content.”

[18]  See, e.g., Queneau c. Boue, Trib. Gr. Instance, réf., Paris, June 10, 1997, J.C.P. 1997, II, 22974, translated in [2000] E.C.D.R. 343. The French trial court, on a preliminary motion, declined to prohibit a research team from making variations on protected poetry available to team members within a fire-walled intranet.

[19]  Compare Dickens v. Lee, (1844) 8 Jurist 183, and Folsom v. Marsh, 9 Fed. Cas. 342 (C.C.D. Mass 1841). In the one case, in a U.K. decision in equity, the publication of a purported edit of Dickens’ Christmas Carol was stopped as “piracy”; in the other, in a key U.S. decision, Justice Story permanently enjoined the publication of an abridgement of Washington’s letters, noting that such matters could call for “distinctions [that] are, or at least may be, very subtile [sic] and refined, and, sometimes, almost evanescent.”

[20] For analysis, see Wendy J. Gordon, Of Harms and Benefits: Torts, Restitution, and Intellectual Property, Journal of Legal Studies, vol. 21 (1992), 449, reprinted in McGeorge Law Review, vol. 34 (2003), 541.

[21]  See Warner Bros. Pictures, Inc. v. Columbia Broad. Sys., Inc., 216 F. 2d 945 (9th Cir. 1954), cert. denied, 348 U.S. 971 (1955). The U.S. courts decided that Hammett may use his key character in sequels to the novel in which he had contractually transferred copyright to the studio. Note that our seventh principle compels the restrictive construction of any author’s contractual transfer of rights to third parties.

[22]  See, e.g., Sheldon v. Metro-Goldwyn Pictures Corp., 106 F. 2d 45 (2d Cir. 1939), affirmed 309 U.S. 390 (1940). According to this U.S. decision, plaintiff may claim only shares of defendant’s profits imputable to what is protected in her own work, but defendant may have certain of its contributions to its own profits factored out of such shares, for example, the development and advertising costs of its derivative work.

[23]  Specific provisions may differentially govern institutional uses. The law may distinguish between, for example, a business enterprise providing repeated access to works to its employees, on the one hand, and a charitable trust gratuitously preparing and providing access to works to the visually impaired, on the other.

[24]  See Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), art. 13 (concluded 1994, as part of the Agreement Creating the W.T.O.): “Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”

[25]  Suppose that an online aggregator or file-sharer made a work repeatedly available to unknown parties. Such uses, meeting purposes that varied imponderably with the parties accessing the work, would resist assessment under the criteria proposed here. They could not thus satisfy any exception contemplated here.

[26]  For analysis, see Justin Hughes, Fair Use Across Time, UCLA Law Review, vol. 50 (2003), 775.

[27]  Plon S.A. c. Pierre Hugo, Cass. civ. I, Jan. 30, 2007, R.I.D.A., no. 212 (2007), 249. The Supreme Court here remanded the action, calling for inquiry into confusion regarding authorship and into distortion in any sequel, while stressing “freedom of creation” as an overriding consideration in the case. See Cour d’appel, 4th ch., Paris, Dec. 19, 2008, R.I.D.A., no. 220 (2009), 444. This court, on remand, allowed the sequel.

[28]  The Alcolix decision, BGH, March 11, 1993, GRUR 1994, 206, translated in International Review of Industrial Property and Copyright Law [I.I.C.], vol. 25 (1994), 605. See also the Germania 3 decision, BVerfG, June 29, 2000, GRUR 2001, 149. Here, to avoid impairing artistic freedom, the German Federal Constitutional Court dissolved an order stopping the publication of a play which creatively incorporated passages from Brecht’s works too large to be exempted as brief quotes. For analysis, see Paul Edward Geller, A German Approach to Fair Use: Test Cases for TRIPs Criteria for Copyright Limitations?, Journal of the Copyright Society of the USA, vol. 57 (2010), p. 553.

[29]  Ashby Donald v. France, ECtHR 5th sect., Jan. 10, 2013, App. 36769/08, paras. 34-44, [2013] E.C.H.R. 287. However, the Court of Human Rights confirmed the trial court’s exercise of its power to assess awards or fines in the case in question. It thus rejected the French Government’s argument that an infringement action could not interfere with the defendants’ expressive activities as long as it were limited to “obtaining compensation for the impairments” to the plaintiffs’ interests in any work at issue. Id., para. 30.

[30]  For an example of guidelines to such filtering, see the Electronic Frontier Foundation, et al., Fair Use Principles for User Generated Video Content.

[31]  For further analysis, see Axel Metzger, Transnational Law for Transnational Communities: The Emergence of a Lex Mercatoria (or Lex Informatica) for International Creative Communities, Journal of Intellectual Property, Information Technology and Electronic Commerce Law, vol. 3 (2012), 361.

[32]  For example, the arrangements between members of the creative team of a film and its producer, to the extent not subject to specific terms, would be equitably construed. By contrast, a contract for adapting a prior novel to film, as evoked at under our fourth principle, would be restrictively construed.

[33]  See, e.g., Griggs Group Ltd. v. Evans (No. 2), [2004] F.S.R. (48) 939 (High Court, Chancery), affirmed, [2005] F.S.R. (31) 706 (Court of Appeal). An author impliedly granted copyright in a work worldwide to a first party and later formally assigned the same rights to a second party who had notice of the prior transfer. The U.K. courts confirmed the first party’s rights in the work worldwide as against the second party, while taking account both of British rules and of foreign rules on point.

[34]  See, e.g., P.R.T.E. v. Commission and I.T.P. v. Commission (the Magill case), E.C.J., Joined Cases C-241/91 P and C-242/91, April 6, 1995, [1995] E.C.R. I-743. The European Court of Justice here compelled television stations to license, on reasonable terms, program listings in which they had claimed copyrights but which they had altogether refused to license to an independent television-guide service.

[35]  In any event, in the case of an orphan work, a claimant, failing to exploit a work publicly, would have no basis for actual damages, though arguably it could invoke prior investments as a basis for claiming profits.

[36]  Stevens v. K.K. Sony Computer Entertainment, [2005] HCA 58. The Australian High Court here stressed the need “to avoid an overbroad construction which would extend the copyright monopoly rather than match it,” especially given the “penal character” of the statutory scheme. This holding was later legislatively overturned, albeit for reasons that might not pass muster under the principles proposed here.

[37]  For background, see Peter Biddle, et al., The Darknet and the Future of Content Distribution, in Digital Rights Management Workshop 2002, ed. Joan Feigenbaum (Springer, 2003), 155.

[38]  Compare Scarlet Extended SA v. Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), C.J.E.U. 3rd ch., Case C-70/10, Nov. 24, 2011, paras. 46-54, [2012] E.C.D.R. 4, with EMI Records Ltd. v. v. British Sky Broadcasting Ltd., [2013] EWHC 379 (Ch). On the one hand, the E.U. Court of Justice precluded a blanket order obligating a network service to filter contents generally. On the other, the U.K. High Court ordered such services to block specific websites they knew to be enabling file sharing. One such site had been earning annual advertising revenues “between $12,525,469 and $22,383,918.” Ibid., para. 59.

[39]  See, e.g., Fox c. Aurélien, Cour d’appel, 3rd ch. cor., Montpellier, March 10, 2005. The French court here dismissed charges of criminal infringement, given evidence that the accused party shared downloaded recordings with a “few buddies” only. But see Decision 3228, Cass. crim., May 30, 2006, R.I.D.A., no. 210 (2006), 326. The Supreme Court reversed this dismissal in oddly requiring a “licit source” for the copies.

[40]  For his specific views on copyright, see Groucho Marx’s Correspondence With Warner Brothers (1946).

[41]  For a systematic guide, see Paul Edward Geller, International Copyright: The Introduction, esp. § 3[1], in International Copyright Law and Practice, ed. Lionel Bently (LexisNexis, updated annually).

[42]  See, e.g., Regulation (EC) 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations, art. 8(1), O.J. 2007 L 199. This E.U. law follows treaty principles to govern infringement claims by “the law of the country for which protection is claimed.”

[43]  For an illustration, see Paul Edward Geller, The Celestial Jam Session: Creative Sharing Online Caught in Conflicts of Copyright Laws, European Intellectual Property Review [E.I.P.R.], vol. 37 (2015), 490.