William Fisher, CopyrightX：第1.1講、著作権法の基礎：序論

[0:15] Hello. I am Terry Fisher. This is the introduction to a series of 12 lectures on copyright. My hope, in these lectures, is to provide you the following things: First, an understanding of the basic principles of copyright law; Second, an appreciation of the ways in which that law affects, for better and worse, creativity and innovation in a wide variety of artistic and technical fields. (To that end, I will be providing you, along the way, illustrations of the ways that copyright works in literature; music; film; photography; graphic art; software; comedy; fashion; architecture; and so forth.)

[0:57] Third, I will try to provide you a critical understanding of the main theories of copyright by which I mean, the arguments, developed over several centuries by economists, philosophers, and political theorists, concerning the purposes or functions of the copyright system. These theories are not mere matters of academic curiosity and dispute. Copyright law is changing very fast, in part in an attempt to address new technologies, and the lawmakers who are making the changes are influenced by and in turn help to shape the competing theories of copyright.

[1:33] So, to understand where the law is going and certainly if you wish to affect its trajectory you need to know a fair amount about theory. This bring me to the fourth and last of the ambitions: By the end of these lectures, I hope to have increased your ability and confidence to make informed judgments concerning how, if at all, the copyright system should be reformed. SO, TO SUMMARIZE: copyright law; its impact on creativity; theories of copyright; and ways in which the system could be improved those are the general themes I will be addressing.

[2:11] The themes are intertwined, of course, and I will try to identify, in the lectures, the relationships among them. The topics of the 12 lectures, in which I will be addressing these themes are set forth on your screen. This first lecture is called "the foundations of copyright law." Once I am finished with the introductory material, I will discuss three aspects of copyright that can be thought of as fundamental: --the concept of originality; --the crucial distinctions in copyright law between ideas, facts, and expression; --and the system of multilateral treaties that constrain the freedom of almost all countries when shaping and administering their national copyright systems.

[2:55] Along the way, I will discuss some current controversies that those basic principles affect. The 2nd lecture will examine and contrast two theories of copyright law specifically the fairness theory, which is especially prominent in countries (like Great Britain, the United States, and Australia) that have been influenced by the common-law legal tradition; and the personality or personhood theory, which tends to be somewhat more prominent in countries (including Continental Europe and Latin America) that have been influenced by the civil-law tradition.

[3:29] In the 3rd lecture, we will return to legal doctrine. Specifically, I will survey the kinds of original works that are subject to copyright protection. Some of these (such as novels, musical compositions, and films) will be unsurprising. Others (such as software, fictional characters, and three-dimensional useful objects) may be somewhat more eye-opening. The 4th lecture will concentrate on the most complex of the copyright theories: the welfare theory, an outgrowth of the philosophic tradition of utilitarianism.

[4:04] As we will see, this theory has growing influence, certainly among scholars and increasingly among lawmakers, in all jurisdictions in the world. The 5th lecture will consider the complex set of rules that define the term, "author" -- and identify the persons and organizations that qualify as authors. The 6th lecture, entitled "the mechanics of copyright," considers how the copyright system works in practice. I will discuss, for example, --what, if anything, an author must do to secure copyright protection; --the preconditions for bringing a copyright infringement suit; --how long copyrights last; --how the rights associated with copyright are transferred from one person to another; --and how the copyright system attempts to shield authors (or their families) against exploitation.

[4:58] The 7th and 8th lectures will examine in some detail the legal rights that a copyright owner enjoys. The primary entitlements, we will see, are the exclusive rights to reproduce, modify, distribute, or perform their works. We will examine the scope of each of those rights -- and the equally important list of specific exceptions and limitations upon those rights, which are designed to protect the public"s interest in enjoying and transforming copyrighted materials.

[5:30] The 9th lecture will examine the general defense to copyright infringement known variously as fair use and fair dealing. This is among the most controversial and unstable aspects of the copyright system. How this doctrine evolves in the near future will have a big impact on journalism, music, film, graphic art, and so forth. In the 10th lecture, we will return for the last time to copyright theory, examining an approach that seems gradually to be growing in influence in many countries.

[6:02] It goes by various names, but I will use the term cultural theory. In the 11th lecture, we will examine 2 important supplements to the set of legal rights enjoyed by copyright owners. The first of these is the doctrine of secondary liability, which enables copyright owners sometimes to control the behavior of organizations that do not themselves engage in copyright infringement, but rather facilitate the infringing behavior of others. (Included in this group are some quaint organizations, like flea markets, and some modern ones, like peer-to-peer filesharing systems.)

[6:41] The second supplement is the recent addition to the copyright system of prohibitions on the circumvention of technological protection measures. That cumbersome term refers to legal efforts to increase the ability of copyright owners to control uses of their works through encryption. Finally, in the 12th lecture, I will survey the legal remedies that are available to a copyright owner whose rights have been abridged. As is probably obvious, there is a color scheme to this list.

[7:14] The lectures described using a black font focus on copyright law and its applications. The lectures described using a red font focus on theoretical or policy considerations. When discussing details concerning copyright law, I will most often make reference to the rules currently in force in the United States partly because I know that system best, and partly because, for better or worse, US law is influential in many other jurisdictions. But I will also devote significant attention to the differences between US law and the legal systems in other countries.

[7:52] Now, a few words about the logistics of these lectures: Each will last roughly 90 minutes. A fair amount of graphic and audiovisual materials will company the presentations. Consequently, it will be best if you view recordings of the lectures on a computer or on a screen of some sort. You could, of course, just listen to them, but you would be missing much illustrative material. The most important of the supplementary visual materials will be two maps I have prepared. One covers the main features of copyright law.

[8:25] The other covers the main features of copyright theory. Because the maps themselves and my use of them are unusual, I will say a few more words about this feature. The heart of the first map looks like this. As you might imagine, the "plus" signs identify opportunities for expansion. If you click on a "plus" sign, it will open additional branches of the map -- like so. These icons identify links.

[8:55] Some of the links will open slide presentations that I have prepared. Others lead to copies of statutes or judicial decisions -- or to supplementary materials prepared by other scholars or lawyers that are accessible through the Internet. The second map, which examines Intellectual Property Theory, works the same way. Both of the maps were created using the Mindmanager software program, and I will be displaying the Mindmanager versions on your screens during these lectures.

[9:26] If you want to explore the maps at your leisure, you can gain access to them through the CopyrightX website or through my personal homepage, the address of which is: tfisher.org. If you want to edit the maps, for example, to add your own notes or to supplement the links you will need a software program of some sort. You can, of course, use Mindmanager -- which you can obtain from the website for Mindjet -- but it is expensive. Other programs that can be used to import and edit the maps include ithoughts, which is available for a modest price, and XMind, an open-source program that is available for free.

[10:10] Last but not least, if you want to explore the maps but not edit them, the easiest way to do so is to use the "flash" based versions, which are available on the CopyrightX website. To use those, you do not need any software at all; they will open in most modern browsers. Together, the two maps contains all of my lecture notes for all 12 of these lectures, plus links to a wide variety of additional materials. The result is that they contain -- or provide access to -- a large amount of information and commentary.

[10:43] However, it is important that you understand their limitations. In particular, you should not think of the first map as the equivalent of a treatise on copyright law; it is certainly not a comprehensive survey of the law, and it contains some opinionated material that would be inappropriate in a treatise. Rather it is a pedagogic aid -- a device intended to facilitate your understanding of -- and capacity to remember -- the main features of the copyright system.

[11:15] I modify both of the maps with some frequency. Most often, I do this to take into account changes in copyright statutes or treaties or new judicial decisions. But I also sometimes revise the maps when I change my mind on a particular issue or when another commentator deploys a novel argument. Accordingly, if you find the maps useful in the future, you should probably check the CopyrightX website to make sure that you have the most current versions. I will try to keep the maps reasonably up to date as long as I am able.

[11:50] Finally, if you have suggestions concerning the content of either map (bearing in mind, of course, their limited purposes), feel free to e-mail me using the address listed on the CopyrightX website. The same principle applies to these lectures. If you have suggestions concerning how they might be improved -- please let me know, by sending a message to the same email address. This concludes the introduction to lecture #1. In the next segment, I will take up the first of the substantive topics in the course: the concept of originality.