Re: Abolish Reproduction Right

I wrote:
>
> 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.

Mark Lemley replied:
>
> Actually, section 106(1) gives the copyright owner the right to control
> the reproduction of a work "in copies." This means that the same
> fixation requirement applies to reproductions as to original copyrighted
> works (because of the definition of a "copy" in section 101).
>
> There is some dispute as to whether the creation of derivative works
> requires such fixation; for an unusual attempt to resolve this issue,
> see Lewis Galoob Toys v. Nintendo, 964 F.2d 965 (9th Cir. 1992).

There is the additional problem of determining when an unauthorized use of a work, even if not a "copy," might be characterized as a "performance" of the work.

Bob Cumbow
<cumbr[_at_]perkinscoie.com> Received on Thu Apr 03 1997 - 22:56:28 GMT