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Internationaler Gewerblicher Rechtsschutz und Urheberrecht II

Teil 4 - Author's Rights

The US Copyright Law enumerates the exclusive rights of the author in 17 U.S.C. § 106. Any use of the work that is not included in the catalogue of this provision is not within the scope of the copyright of the author, meaning that the work can be used in every other way without any infringement.

§ 106—Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

 (image: https://hssm.hqedv.de/uploads/IntUrhRAuthorsRights/IntUrhRExclusiveRights.jpg)

The number of specific moral copyrights is limited. Solely the right to authorize derivative works (17 U.S.C. § 106 (2)) has a moral right impact but also a strong economic aspect. Only authors of works of visual arts have a more distinct moral position: they have also the rights to be identified as author, to hinder false attributions of works and to protect the integrity of the work (17 U.S.C. § 106A). In all other cases of infringements of the author’s personality or his relation to the work, the author has solely the actions of libel and slander (common law defamation rules).
The focus of the exclusive rights of the author is clearly on his economic position. All exclusive rights have a least an economic impact. As the US Copyright Law does not differ between author’s rights and related rights the catalogue of exclusive rights is applicable to all copyrightable works. To all economic rights there are limitations in 17 U.S.C. §§ 107-112 (see later) but some of the economic rights are per se limited in their scope:

  • The right to reproduce copies (17 U.S.C. § 106 (1)) includes only the “exact or substantial similar” copy. The border between “substantial similar” (Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986)) and “not so similar” needs definition by the courts.

“It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations. (…) Then the question is whether the part so
taken is "substantial," and therefore not a "fair use" of the copyrighted work; it is the same question as arises in the case of any other copyrighted work. (…)Even so, granting that the plaintiff's play was wholly original, and assuming that novelty is not
essential to a copyright, there is no monopoly in such a background. Though the plaintiff discovered the vein, she could not keep it to herself; so defined, the theme was too generalized an abstraction from what she wrote. It was only a part of her "ideas."
(Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2d Cir. 1930))

"Copying deleted or so disguised as to be unrecognizable is not copying" (See v. Durang, 711 F.2d 141 (9th Cir. 1983))

“Scénes à faire” are no similar reproduction and therefore no infringement Cain v. Universal Pictures Co. 47 F.Supp. 1013 (United States District Court for the Southern District of California 1942)“

  • The right to distribute copies (17 U.S.C. § 106 (3)) is restricted by the “first sale doctrine” (17 U.S.C. § 109 (a)):

“Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the
possession of that copy or phonorecord.”

Nevertheless, the catalogue of distribution actions in 17 U.S.C. § 106 (3) intends to include all possible forms of distribution.

  • The author has the rights to display, perform, show or play and communicate the work (17 U.S.C. § 106 (4)-(6)) but for public use. That means that the private display, performance or communication of the work is no infringement of exclusive rights of the author. What is meant by “publicly”is defined in 17 U.S.C. § 101 but as this definition is not all-embracing is also a case law question

To perform or display a work ‘‘publicly’’ means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

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