Re: Abolish Reproduction Right

On March 31, 1997, Bob Cumbow <cumbr[_at_]perkinscoie.com> wrote in part:
>
> The fact that reproductions "are no longer tangible" should make no
> difference. One of the requirements for copyright protection is that
> the ORIGINAL COPYRIGHTED WORK be "fixed in a tangible medium." I don't
> recall any requirement that an unauthorized reproduction has to be
> tangible in order to be an infringement.

I disagree. The Section 106 reproduction right grants only the exclusive right "to reproduce the copyrighted work in copies or phonorecords." The distribution right is also limited to "copies" and "phonorecords." Both "copies" and "phonorecords" are defined in Section 101 as "material objects" in which a work or sounds (respectively) are "fixed." Therefore, an unauthorized reproduction has to be tangible (fixed in a material object) in order to be an infringement of the reproduction right.

     There is legislative history suggesting that derivative works do not have to be fixed to be infringing, but I think that, in context, that history should be read as limited to uses that would violate one of the other exclusive rights: i.e., public display, or public performance (neither of which requires a fixation beyond the original work).

Tyler T. Ochoa
Assistant Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Tue Apr 01 1997 - 19:20:01 GMT