United States Response to ALAI 2021 ALAI Questionnaire COPYRIGHT, COMPETITION AND INNOVATION Prepared by Pippa Loengard1, Joshua Berlowitz and Stephany Kim2 ***Please note that any references to the Copyright Act or the Act refer to the Copyright Act of 1976, 17 U.S.C. §101 et. seq.*** 1. INTERNAL ADJUSTMENTS IN COPYRIGHT LAWS Identify and explain any specific instances where market competition and innovation concerns have been specifically addressed by copyright law or caselaw in your country. This may include by means of: 1.1.- Defining (or interpreting) the scope of exclusive rights to account for competition and innovation concerns. Innovation in the copyright context encompasses the creation of original works and is closely tied to the idea of progress. The US Constitution grants Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” 3 Thus, the goal of spurring innovation is at the heart of US copyright law’s grant of exclusive rights and concomitant limits on competition. To promote innovation, Congress has limited competition. The scope of exclusive rights in the United States has several features that spur innovation. First, the constitutional requirement of originality ensures that exclusive rights attach only to original works of authorship.4 American copyright law then grants authors of sufficiently original creative works five exclusive rights enabling the author to control the markets for: reproduction, derivative works, distribution of copies, performance, and display. 5 The exclusive nature of these rights, by definition, limits competition. Nevertheless, Congress defined, and courts have interpreted, these rights to balance innovation and competition through alternately expansive and limiting language and readings. When confronting innovative technology in particular, courts have interpreted the Copyright Act purposively. For example, the Supreme Court has analogized recent innovations to technologies developed before the advent of the Act and regulated in the Act (such as cable television) to determine whether the challenged use falls within the scope of 1 Deputy Director, Kernochan Center for Law, Media, and the Arts, Columbia Law School. Joshua Berlowitz and Stephany Kim are members of the Columbia Law School Class of 2023, and are research assistants at the Kernochan Center for Law, Media, and the Arts. 3 U.S. Const., Art. I § 8. 4 Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 351 (1991) (“[O]riginality is a constitutionally mandated prerequisite for copyright protection.”). 5 17 U.S.C. § 106. 2 1 exploitations which Congress intended to limit competition in favor of the author’s exclusive rights.6 Moreover, American copyright law fosters competition by distinguishing between copyrightable works (expressions) and non-copyrightable elements (ideas and facts) and by imposing a requirement of originality. Non-copyrightable elements may be copied without incurring infringement liability.7 In Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., for example, a negative finding on a particular phonebook’s copyrightability led the Court to hold that a competing phonebook which appropriated names and addresses from the former was non-infringing because the original work did not have the requisite originality to qualify for copyright protection. 8 Works must bear a modicum of originality as well, although that bar is set purposefully low so to accommodate even simple works.9 The exclusive right of reproduction covers the making of a copy in any material form. The statute defines a copy as fixed in a “sufficiently permanent or stable” material form “for a period of more than transitory duration.” 10 The exclusive right to reproduction persists despite changes in technology: Reproductions coming within the scope of the author’s exclusive right can be fixed “by any method now known or later developed.” 11 Thus, faxed photocopies,12 RAM copies,13 and digital files containing sound recordings14 can infringe the exclusive right to reproduction even though § 106(1) (the provision setting out the author’s exclusive right to reproduction) predates the development of these technologies. In recent cases, rather than seeking an applicable statutory exception, courts have limited the liability of some novel forms 6 American Broadcasting Companies, Inc. v. Aereo, Inc., 57

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