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Abstract:
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's landmark decision in Feist Publications, Inc. v. Rural Telephone Services Co. in 1991. Justice O'Connor's 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'Connor defined creativity by negative example, describing how an author's efforts in preparing a compilation might not satisfy the requirement. This Article, with the help of many post-Feist opinions, elaborates on Justice O'Connor's 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.

Feist, Copyright, Compilations

Abstract:
It is appropriate to ask whether there are any meaningful limits on the Supreme Court's deference to Congress in setting intellectual property policy after Eldred v. Ashcroft given the Court's statements about the authority of Congress under the Copyright Clause, its treatment of several prior statements on intellectual property policy and the Court's general reluctance to strike down legislation. Does Congress enjoy a carte blanche to legislate on intellectual property matters? Has the Court backed away from its posture regarding copyright law expressed in Feist to return to a relationship with Congress on copyright policy that is deferential to the point of servility?

The answer to these questions might be "yes." The Supreme Court's deference to Congress coupled with its reliance on the unbroken history of congressional practices granting term extensions and statements regarding differences between the patent and copyright monopolies have been of critical importance in recent decisions upholding legislation that provides for the restoration of copyright protection for certain works by foreign authors that had entered the public domain. Another court, relying heavily on Eldred, upheld the Copyright Renewal Act and the Berne Convention Implementation Act as well as CTEA. Appropriate deference to Congress also played an important role in several decisions interpreting anti-bootlegging legislation. The lower courts are split on whether this statute violates the Copyright Clause's "limited times" and "writings" limitations, and over whether it can be upheld under the Commerce Clause or the Treaty Power.

This article discusses several post-Eldred decisions, the expansive authority of Congress under the Copyright Clause, the meaning of the clause's limitations in the face of the Court's deference to congress, and the significant risk of encroachment on the public domain resulting from Congress' exercise of its power under the Copyright Clause. The post-Eldred decisions show that it may not be necessary for Congress to turn to the Commerce Clause or the Treaty Power in order to enact legislation that avoids limitations in the Copyright Clause. Given Congress' exercise of general legislative powers, the Court's deference to Congress' judgment in exercising its power under the Copyright Clause and its historic reluctance to strike down intellectual property legislation, the clause's limitations on congressional authority are becoming meaningless and this puts the public domain at risk.

Copyright, Eldred, Feist,

Abstract:
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's views known to the administration, the right of access to documents in the administration's 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.

EU, Due process, Right to be heard