Influence of Copyright on the Emergence of New Technologies: a North American Perspective

A thesis submitted to the Facuky of Graduate Studies and Research in partial fulfillrnent of the requirements of the degree of master.

Me MarbHel6ne Deschamps-Maquis

FacultyofLaw McGill University, Montreal November 1999

O Marie-HBldne Deschamps-Maquis, 1999 National Library Biblioîhèque nationale du Canada Acquisitions and Acquisitions el Bibliographie Services senhces bibliographiques 395 Wellington Street 345. Na WaiIigion Onawa ON KlA ON4 WONK1AW CMada canada

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1. CONCLUSION ,.-.-.-.!H Ce mémoire de maitrise étudie l'impact du droit d'auteur Nord Américain sur i'évolution technologique. Sa prerniin partie propose une vision large du droit d'auteur englobant la &alité canadienne et américaine. Suite à l'étude des différentes définitions légales de œ concept, de son origine et de ses justifications sous-jacentes, se construit une définition englobante du droit d'auteur en Amérique du Nord. La deuxième partie s'attarde aux differentes confrontations historiques entre le copyright et l'apparition de nouvelles technologies. Elle &tudie et analyse I'bvolution de la presse 8 imprimer, de la photographie, du piano mhnique, du cinéma, de la radio, de la tél4vision par câble, du photocopieur, du viddo, de la cassette audii digitale et du lecteur MP3, ainsi que la réaction des acteurs juridiques à ces dernières. L'ensemble de ces cléments permet de d&mniner l'influence du copyright sur le d6veloppement technologique.

This thesis studies the impad of Norai American copyright on technological development. The first section proposes a broad vision of copyright induding both Canadian and American le@ cmœpts. It analyses diint modem definitions of copyright, the minof the concept and its underiying justifications. The second secth! preJents the hisbrical relations between copyright and technologies. It studii the history of the printing pnm, the photognphy, the player-piano, the motion pidure, the radio, the cab TV, the photocopier, the videotape, the Digital Audio Tape and the MP3, and the legal challenge they repTB58nfed. Those etîmenb give us the opfmdunity to evaluate the influerice of copyright or\ techmlogical developmefit A Sunny Handa, pour sa patience, sa générosité et sa passion du droit ...

A Ysolde Gendreau, pour ses prédeux cunseils. ..

A Me André P. Casgrain, pour avoir cru en moi d&s mes ddbuts ...

A mes parents Marielle Maquis et Raymond Deschamps, pour leur présence et leur support.. .

A mon conjoint, Marc Tanguy, pour sa bonne humeur quotidienne...

iii We must take am to guard against two extmmes equally pmjudicial; the one, that men of abiliS; who have employed theri time hr the semice of the community, may not be deprived of theif jusf merits, and the rieward of thek ingenudy and /ahur; the other, that the wodd mây ndbe deprived of impmvement, nor the pmgmss of the ads be latarded- Lord Mansfield

In the 20th œntury, technologieal developments have changed the way we Iive. Our grandparents' letters took days ar even weeks ta arrive at their destination; now we can communicate by e-mail, and our messages arrive almost instantly. Twenty years ago, one had to lesm cornputer languages to use a personal cornputer; now we can easily surf the "Net" using sophisticated software.

Copyright protection has had to adapt to this new reality. Because such protection was çonœiveâ during the 17' and 1k centuries. it has not aiways been capable of addWng modem tedinological devdopment Through the ages, diirent appmaches have been ernbraced to campensate far this deficiency. Sommes tectiridogies have bæn rnodii to comply with intellectual pmperty rules, Mile at atlier times Copyright Acts have been extended to take into amttechndogical progriess. But has copyright delayed the evolution of technoiogy? Has it deprived the wwld of improvement as Lord Mansfield feared it would? As the new millennium nears, it is intefesting to address these questions.

Before beginning this study, it is important to detemine what will be consideted as "delayed technobgical devebpment". Judging how ideas present themselves to an inventor, or whether inventors would have aded diimntiy in the absence of copyright lm, is unmalistic. it is also difficult to evaluate whether inventors might have discarded ideas if such ideas had infnnged somdone else's copyright. Consequently, the objective of this study is not to detemine whether some inventions died with their authors, but whether copyright hindered existing- creation development

AIthough an inventor might conceive of a machine in one fom, copyright may limit the use of some of its features, and the product might appear on the market in another fotm, one offering less possibilities than originally intended. Limiting features of a device can reduce its popularity; if the device is less popular, manufadurers will be unwilling to invest in producing and marketing it. While some pesons particularly skilled in the field may have access to the machine, the population as a whole may be deprived of h This thesis evaluates access to new technology from the point of view of the mass population and considers Iower popularity to be included Win the definition of "delayed techndogical devefoprnent".

Consequently, for the purpose of this thesis, the expression "delayed technological development" means to affect negatively the distribution of scientifc or mechanical inventions, induding the diminution of a device's popularity .

To analyze copyright's influence properîy, it is also necessary to detemine what copyright actually is. Limiting the anaiysis to those copyright notions included in statutes would mislead our study. In some situations, the essetnœ of copyight might have aflected technological devebpment even without the application of vurittan law. In this second part, a study of the copyrights origin, definitions and justifications will lead to a valid definition of this privilege.

The thifd part is comprised of an histoncal study of the relationship between copyright and technologies. It examines how North Arnerican legislatures and courts have reacted to technorogical progress and dealt with the emefg8nœ of sophistiated systems of reproduction. Promotem of new techniques piayed an important part in this pmss, and thus their reactions ta legal obligations are also discussed.

All those elements will heip detemine the impact of copyright on technological development. In sum, this thesis attempts to answer a simple quesüon: Has copyright law delayd or stifid technological development?' To study the impact of copyfight on technological develapment, one needs to have a cornpiete picture of the copyright caneept. Limiting the copyright definition to statutary restrkîions wuld mislead this study: technological devekyment rnight have been ifluend by the copyright restrictioris inûuded in written laws, but it might alsd have been affected by the fear of an extension of the statutes. New technoiagy promaters might itve abred it to avoid the attention of copyright supportem. A valid analysis of the impact of copyright needs to adopt a brwd persm# and go beyond the sbtutes to undentand the essence of mpyfight. This part tries to pmtan ail-encompassing definition of the North Arnerican W*on of copyright

Another challenge of this part is ta present a unique North Amencan deiinitian of aapyright. Evm though they have the same origin and name, Amerban and Canadian copyright laws am diit.The definition given in this part must be large mughto indude both kgal regiriaes.

Because current definitions am a gmd way to min the study of any legal concept, this part first boks at the modem inbfpretation of mpyright. Themfk, it studies the origin of the concept and presmts an analysis of its underlying justifications. Thase diitelementg should lead ta a cfear pidure of the copyrÎgM reelity in North Am8rica.

This study begins by lodsing at the differsrit modem descn'ptiuns d apyfight American and Canadian statutes have their mm venions of mis nation. Courts, dicümries, and authors alsa have theit awn points of view. This secbon ampares the cornmon elémerits of the dÏffemt ddiditions. Copyright Acts portray the legislatures' understanding of copyright. Nevertheless, neither the American nor the Canadian statutes pmvide a clear explanatim of the notion. The general definition given in the Canadian Copyright Act ' only refers to the different sections of the statute: "copyright " means the rights described in (a) section 3, in the case of work, (b) secüons 15 and 26, in the case of a performer's performance, (c) secüon 18, in the case of sound recording, or (d) Won21, in the case of a communication signal?

This approadr makes it difticult to understand the Canadian statute's general position. By contrast, while the American legislation does not have an offrcial definition of copyright, Section 106 proposes a getneral view of the concept- The owner of copyright under this file has the exclusive rights to do and to authorize any of the Idlowing: (1) to teproduce the copyrighted work in copies or phonoreoords; (2) to prepare derivative works based upon the eoWngMed work; (3) to distribute copies or phonorecords of the eopyrighted wrk to the public by sale or other transfer of ownership, or by mtal, lease, or lending; (4) in the case of litmry, musical, dramatic, and choreographic works, pantamimes, and mation pidures and other audiovisual vvorks, to perfomi the copyrighted nrork publidy; (5) in the case of litemry, musical, dramatic, and choteograptiic works, pantomimes, and pictorbl, graphic, or sculptural worlts, including the individual images of a motion pidure or other auâii8ual work, b dispby the capyrighted wodc publidy; and (6) in the case of sound recordiryjs, to perfom the copyrighted wak publidy by means of a digital audio transmission?

The statutes give a concrette and pfacücal definition of copyright. A more the~r~calview is proposetd by the detinitioris elaborated by schdan and jurisprudence. North American courts have tned to explain the copyright concept. The two following examples nuance the statutory definition: The right to multiply copies of a published work, or the right to make the work public and still retain the beneficial interest therein.'

The exclusive right of multiplying copies of an original wok or composition, and conseqwntiy preventing &ers fmm ru, doing6

Dictionanes are another important source of legal definiüons. Black's Law Dictionary defines copyright as: The right of literary property as recognizetd and sanctioned by positive law. An intangible, incorporeal right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a speafied period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling M.' nie O&d English Dictionary is more concise: The exdusive right given by law for a certain term of years to an author, composer, designer, etc. (or his assignee) to print, publish, and seIl copies of his original worka

The sole legal right to print, publish, perform, film, or recocd a litemy or arüstic or musical wwk8

Schdars have proviâed a more elaboraîe definition. Coplnger and Skone James on Copyright states: Copyright ... is a pmperty rigM whidi subsists in a number of diff'emnt kinds of works, sound recording, films, broadcasts or

C-ght, 17 U.S.C. 9106 (1998) [haanrfter Amencan Cqyrighf Act]. 's Udnunnunters'Swvey Bmau v. hi-ë & Remicik,[l93~En C.R IS at 20. Chqpdl v. PurUby, (1845) 14 MW303 at 316. 7 H.C. Black, cd., BkkS LPIv Diclianary, 6* cd. (St-Pmi, Mirmcsota : West Riblishin& IWO), rv. *copyn-eht". ' Tk WEngIiskDicliauaty, cd,rv. "cmgW. 9 7k ~P~~Dictr*ay*~y,3d cd,zv. *copyti@f'. cable programmes, performances and the typographical anangement of publish8d edio~ns.'~

The reference 10 the property conœpt is also induâed in Kaplan's definition: "The protection of pmperty in the products of mind ... Il .11

Fox simply states: "Copyright is the right to prevent Wngor the issuing of copies to the pub~"'2But Piomrn and Hamilton rpesk about "[t]he individual right of an autha to dispose d his work in retum for nm~neration."'~

Even if they al1 seem to be different, aiese definitions shan cornmon etiements. The owner of copyright is refected to as an author or a creator, and the abject of the right, the worlc, has to be a creatiori, an intelledual product Most definitions refer to an exclusive ngM that testrains others from copying or distributhg the work. It is notewwthy that meschdars illustrate the rigM of the author in his creation by refening M the usual and wdl knom, property concept." At the end of mis part, aiese elements wil facilitate the understanding of the Nom Amencan mlity of -ght. But before this we mu& cornplete this portrait by studying copyright's origin and justilicaîbns.

The first part of the section explains the evoluüon of coWright hmits early beginnings to its crystalliiim in its modem fm. It also bnefty examines its evdution in North Amenca. Authors oRen begin their anam of copyright hisîory by refemng to the introduction of printing in ~ngland," forgetting thal manuscripts wen bougM and copied even befbre the printing press was inventeci." The seed fw the idea of copyright took mot in the baak industry.

Mile the Romans and Gmkswere cancerneci by tfre rigM of the author to be recognized as the creator of hi$ work, it appears that they were uninteresteci in Me wntrol of copies of the wok-" In modem tms. we can say that they were more interested in moral than wnornic rights. For example, they created the terni plagiarius. Latin anceetcr of the word p~agiarisrn,'~which means an abductor or a kidnapper. Even at that time, pretending to be the author of so-y dse's woik was eonsidwed as immoral and nriudulmt? HMW, no specik iights sum to have exkted br intellechal ~ilu.~The wfitings of the mmt famous legal sctiolar of that tirne, Justinian, do not mentiori any legal concept conc8ming Me right of the author to contiol copies of his wock?

Statutes dealing with copyright did not exist until the inmtian of the printing press. This kct can be explained by the littfe practical need for this kind of exclusive fight In the Miile Ages, the majaty of the papulahion was iliii anâ had na use for books. Also, the copying of manuscripts was a laborious and timeansurning task? The pradudion of books was limitetâ to the copying by monks of religious works for reiigious ordsn and the royalty of €urope.'l Such copies were written by hand, and it todc almost as long to copy the work as to mate it.

The earliest record of a copyright case dates back to sixth-century Ireland, where St-Columba, hile on a visit to the monastery of his teacher Abbot Finnian, copied the AbWs plter. Finnain dernanded that the oopy be retumed, and when he did not get satisfaction, he referred the dispute to the King. The rnonarch niled in his favar, stating " to every cm# her calf and wnsequently to every book its copy "?Anathet example of the arsumption of the right of the author in the copies of his work was the fees charged by monasteries to obtain permission to npmduce a book.*

German printer Johannes Gendeiscti, alias Gutenberg, invented the printing press in 1434" In 1450, he al= conc8ived the typogmphy technique th& facilitated the printing of numemus books. Those technologies, introduoed in England by ~axton? have rncoumged tho reproduction of workr and have increased the value of the creativity of an author as oOposed to the material copies of hi$ m."Prinling had an important impact on the iegal treatment of the book industry. In kt, if it was lawful ta make three copies of a work by hand, it was equally lawful to print four hundred copies of the same work. In 1483, a statute introduced during the mign of Richard IIP raspondecl favorably to the pnnting technology by encouraging the pnnting of books and their importation, At that tirne, only four presses existed in England and the King wanted to inmase the availability of printed books.1°

A more protectionist approach was adopted during the reign of Henry VIII. In 1533, the King sancüoned a statute repealing mat of Richard III. This gesture was omcially justified by the numerous printed works imported and by the capacity of the King's subjects to hsndle a pfinting press : [The King's natural subjeds] have givm themselves so diligentiy to leam and exercise the said craft of pnnting, that at this day there be within ttiis realm a gmat number cunning and expert in the said science w mft of pfinting as able to exercise the said craft in al1 points as any stranger in any other malm or country?'

It is important to note that this change of position was made the same year as the King's "great matter". He ddared himself "Mdof the Church", had his mamw with Catherine of Aragon annulieâ and married Anne Boleyn.' As Protestantism was by then the only religion permitted in England, it seems that the true purpose of this îaw was to pnvmt the^ importalion of Camdic It was also a way to increase distribution of books mento promote the new national religion.

This presumpüon is m&œd by üie ancspts of pfinting patents and printers' liœnwr, intmdmed in 1538.~ln the printing patent system, which was paralY to aie statianer's the S4vereign granted 8 pn'nting patent giving an

ZJ Sa Im~'iaiofBoob by Alions AQ 1 Ric. 3, c.9. Sec rlso GuMt. I~laes& [k* wtê IO at 32. M~ce~~n,~~IS~M 3LPninmcPdBinrLnsAcr,25HaL8,c. 15. " Sec D. Lolda Hemy YIadhisQlaeenr (ChMmiq, BdyBOO~ 1997) at 59-64. UTbis~ppvposcis~~inKap~~notel~at3. USa~att430n,~notelsat23. ~ccdso~imll,supcrmte1~at~6. exclusive right to publish a wrkS or a elass of works-a In case of mnflicts, mis right prevailed over the stationer's copyright.

On the other hand, a printer's liœnse was a permission by the œnsorship authorities to print a book. Every book required a iicense. This permission was rot coribrring any privilege to print" Pnnting patents and printen' liawar hsd the primary advantage of providing revenues to the Crown and permitting censorship "against heresiesn.'

In 1556, the Catholic daughter of Henry WII, Queen Mary, granted the Charter of the Stationers' ~ompany.~~Because the new monarch wanted to nstore Catholicism as the only religion in England, she used the book industry to prevent the propagation of Protestant ideas. The charter imposed severe restrictions on the publishing trade and the press. In the same year, a decree of the Star Chamber imposed a mction on prinüng contrary to "any injunctions, letter patents, otdinanœs, prohibitions or commandments set forth by the authorities or induded in any of the statut~s'*.~~

Elisabah I sueceeded Qum Mary in 1558." Tbnew queen was Protestant and ttied to reinstate her religion in the Kingdom. To that end, she used the same tools as her sister." She mfimed the Charter of the Stationers' Company and used the Star Chamber to regulate the manner of printing and the number of presses pmitted. Those restrictions were enforœd by the use of summary pmmr of search, confiscation and imprisonment

3s Somc pitaas, aimal "pmidaf, wac limitai to a spdcwork f9r a Iuiaisd paiod ofhmt, wdymen to tai yarr. Sec Pmerson, ibid at 79. " îhis type of primms patent wu ded"genemi" d wu gramcd for Iife on a clwof work such as iaw bookSand amuuCS. Sccibid " Sec ibid at 87. 3s Garaca. lames & DaMa, JYP~note 10 at 33 ;Part- ibià at 24. " sc~~unn~Juaa&~mqibidu33;~supanate 150 1853. ~orronr,itwrsia~iy1557. Sec Kapian, -a note 11 at 3. "Gunn James & Davics, ibid " SœLemtRokn2:câcri~vnmrSri~nanrr~pd,rv. "Ehbuh lm. The first Star Chamber Decree was adopted in 1566.~As authorities wen concerned by censorship and stationen were intefested in copyright ownership, both worked ainjointiy. In June 1586,~a new decree enkrcad the liœnsing of every book and prohibiteid the printing of: any book, work, or copy against the form or meaning of any testraint containeci in any statutes or laws of this realrn, or in any injuncüon made by Her Majesty, or Her Privy Counai; or against the true intent and meaning of any letten patent, ccimmissions, or prohibitions under the great seal, or amtrary to any allowled ordinarice set down for the goad govemment of the Stationers' compan y .'

This decree was to becorne the mainstay of œnsorship in England for the next t%y yean. It consolidated the Stationer's Company as the controller of the publishing system.

In 1603, the Stuart dynasty followed Queen 8iibetti's reign. The Shiarts continued her printing and liœnsing of book poiitics. 8ecause they were more interesteci in power than in the puMic interest, they strengthened the œnsorship system? This a- is illustratd in the Star Chamber Deme of 1637, which cod'ied those Iegai obligations."

In 1640, Charfes I abolished the Star Chamber. The next year, because of the Crornwellian revolution, the King also lost his siuthority and power, and al1 the previous legal rules maded by both those autfwith mre con- illega~.~ In 1642, the House of Commons made a surprishg order, recogniàng a fm of

It is ordemd that the Master and WaMs of the Company of Stationers shall be required to take especial Order that the printers do neither pint nor reprint anything without the amsent of the ~uttwr.'~

Unfortunately, mis order was not followed, and no action seams to have been takm on this basis." This change in the wght appmach appean to have gone relatively unnoticed.

It was not until the restmtion of the monarchy that 8ny evolution in aie copyright concept became apparent In 1682. the fint ücmshg Ad '' was adopW. It was the first statute to advKIwledge oftcially e rigM of prapefty on 'brain" prcd~ds.~This statute nguired that evay book be licenseâ and registenid with the Stationin' Company MmWng printed." Tha Ad also empawered the King's messengers, and the master and wardens of the Stationers' Company, to seize books suspeded of errntaining material hostile to the Chur13 or Govemment

This system lasted until May 1679. The kensitg Ad was a statute empowered for a ~Rdeterminedperiod of tirne. and it was not nmcmied? The dusive and perpetual rights be(onging ta members of ttie Stationers' Company had led to high pdcas and to a demaiad availability of books.s The dieof the Iicensing Act i662 was al80 due to emerging 'Yreebom of the pressnideas. In 1681, al1 the legislative protections having œased, the Stationers' Company adopted an ordinanœ goveming b memben.1° This decm stated that the ownenhip of a book was detemined by its inscription in the Company's register? The merhad an exclusive right to make copies of the work. and any members infn'nging on this exclusive privilege was required to pay a penalty. This system was based on the acknowledgment of a common law right of property for intellectual materials. Although the stationer's copyright was not new, Me ordinance ninforced a system that had existed sinœ 1556.~

In 1694, the ordinanœ of the Stationer's Company was refined. This version stipulated that, in case of death of a member, his proprietary right was bequeatheâ to his wife and children. It also stated that, if any members, without pemission, sotd or copieâ a book registered by another rnember, he woutd have to pay a fine of 12 penœ br evw copY?

It is difficult to discem the underlying principles of the stationer's copyright because the niles were made to accommodate business transacüons. The stationets copyright was stridly a right to publish a work. The copyright owner did not own the wark in question as such and was not entitled ta make any modifications to it. In kt,the author did not give up al1 his rights when h8 sold his manudpt to the staüomr. It was still aie author's exdusive right to alter his work." It is intmting that a kind of moral right was recopnized even in this primitive fom of copyright.

At the bginning of the 18' century, booksellers lobbkd Parliament to adopt a new Liinsing Act that would allow an exclusive printing right. They pieaded that, wiaiout protection of authors' es,the public interest would be harmed

~6 Sœ ibid; Biisryno note 15 at 78E Sec Bhd, ibid u 74. '' Sec ibid at 7i. J9~~~~&~a~swprrnote3at36. *See~anason,~notel~at9. because the number of bodo produœd wlddecrease. The philasapher John Locke, despite his opposition to a liœnsing system leading to a monopoly, alsa made representations, daiming a reward for aie time and effort invested by authors in the wtiting of a book. Numerous petitions were presented to the House of Commons. "

The first British Copyr@htAd was adopteid in 1709 and came into force on 10 April 1710.~lt enacted a nsw legal system based on the recognition of the value of the author's work. The statute recognized the author as the subject of copyrightu

The Statute of Anne introduced the priMpie of a limited term of pr~tectiin.~ The Statute gave authors of almady-printed books the exclusive right to print thm br twenty ~eam,*calailateci hom the date of enby into farce of the Stafute. Authon of baoks "not then printed" had the sale right to print them fat fourteen yean, from the date of publication. At the end of this tenn, the sole right to print or dispose of copies would retum to the author for another fourteen yean. if he was still a~ive.~Bdtm puôiici(ion. the We of üw wofk had to be registered with the Stationers' Company, and then nine copies had to be distributed to diirent librafies. The Statute established a penalty of a penny for every sheet copied, with the fine to be divided between the Crown and the cornplainant

The StaMe of Anne was the first law adopted by the Parliament dealing with copyright. Its purpose was to inmas8 the flow of works and to encourage ~earnin~.~lt was ako the fimt Act conming pfinüng rights not to be diredjy connected with censonhip. The Act expressly stated that it did not affed the importation or sale of books printed beyond the seas in foreign Ianguages; thus foreign authors were excludecl fmmpylight protection?

It is important to understand the Statute of Anne because its provisions fom the basis of the modem copyright law. Interestingly, the Act was based on the stationer's copyright The same mechanisms were used to obtain the right in both systems. The only changes were the limited terni of the right and the possibiliity for anyone to be entitled of it. The new concept in fact eliminated the monopoly of the publishers. who were the principal lobbyists of the legi~lation!'~

This approach changed the perception of copyright. Instead of being a publisher's right, it became an author's rigM because only the author had the ngM to a rendterm. Unfbrtunately, the few moral rights recognized by the stationu's were not preserved in the Statute of ~nne?'

The assumptiori that the awnership of the work bdonged to the author was sûwgthened by the repiesentations made by the stationerss in the "Batüe of the ~a6kselkm~1.~ln 1731. the exclusive rights of the Statimr's Company on matefials printed belbre th8 SaMe of Anne kgally qired. Tham rights Ming the basis of the industry. the printers tned to guard their monop~ly.Tney mnt to aurt against the new copy makers and argued that, bgsed on a natural right, the author, as a creator. had a perpetual common law copyright in his work. fhey pretwidsd that this Mht had bem assignecl to themselves. A 1769 decisionn agreed with thm. stating that there wsa cornmon Iaw iight of an author in the copies of his creation that the Stslute of Anne had not taken away. However. in 1774. the House of ~ords" overtumed this decision. dedaring that copyright was a statutory pmte.on -ted by the 1709 Act." The common right on published books had been extinguished by the Statute of Anne but it stilf existed for unpublished warks. The once-protected books were now in the public domain.

Therefore, four kinds of copyright existed at Uw, beginning of the 18* œntury: (1) the new statutory copyright created by the Act; (2) the stationer's copyright, which had been extmded for twenty- years; (3) the common law right regarding unpublished vmks; and (4) the printing patent right, which retained its status quo." lt smms that this iast type of copy~Qhtwas by then of iiie importance and Parliament has, to this day, chosen not to address it

The Statuts of Anne remaïned in force until 1842" Tho oopyright sape, hovuever, was extended. Musical and dramatic compositions were incorporated into the 1-1 dedinition of book as containeci in th8 Statute? Mer statutes were enacted to pmted engravingsn and sculpturesCBS"The duration of copytight was altered in 1814, and the tmr consecutive fourteen-year periods were replaced &y the term of aie authois lii or twenty4ght yean, starting from the date of publication." In 1833, Parîiiment odopted the Dmmatk Copyripht ~ct,~ which protected public performances of drametic wwks. From 1837 to 1842, labbying taak pface to extend the apyright sape. It was plesded that basing the protection terni on the natural life of the author was fundamentally unjust and denied the value of age and experienœ. On the other hand, it was argued that extending the protection terni afkr the author's death deprived Wety of free access to works without any real advantages for authon.

The 1842 Ad was a mpromise between those positions. It stipulatecl that copyright protedion would remain in efkt until seven years after the authofs death or 42 years follwing publication of the work, whichever was 1onge.O Registration with the Stationers' Company was no longer mandatory unless an action wa9 brought against infnngers.

British copyright is the source of bath Canadiin and American copyright systems. In 1832, the Legislature of Lmr Canada aâopted a copyright stat~te.~Hmer, buse Canada was a dominion, the British 1842 Copynight Ad applied daspite this legisiation." The Canadian 1832 Act was repealed a- the reunilication of the provinces by a nw law pmtdng authon living in the mm province." In 1887, the British Pariiamnt gave the dominions the pawar to IegisiiM on copyright mattem," and the fimt Canadian CdpynQht Act was enacted in 18dît was rep4ceâ in 1875 by the Oominh CopyrQht A&,* which was revised in 1906. On 1 Januay 1924 a new CopyrfQht Act came into fWg th& was largeîy inspird by the Btitish lmpbnàl Act of 191 1.

Sec Bisilipa aote 15 at 58; GPrant, l~ms& DMcs, ibid a 39. Sec Act ofI832, 2 2 W.c. 53. LS See Fox, svpro note 12 .a 30g: Sec abDvnad & Cie v. Lu PQtljL (1960). 20 Fox Fat C. 85(S.C.) at 92. 16 See Act* the -OR of Anrliars, 4-5 Vic., c. 61 (1841). * sec Brïrisk N& hrim AQ S-91, r 23- Sec Copyïigfir Act. 3 1 Vic., c. 54. 89 Sec Doninion Copyrigk Au, 38 Vi.,c. 54. 5a Sa Cm@ Act, RS.C. 1906, c. 70. 91 SCC 1921, C. 24; Cm@- Act, 1923. c. 19 S. 5. Patterson divides the American evolution of copyright into four stages: The stages are the states copyright status, the constitutional provision, the federal copyright Act of 1790, and the landmark case of American copyright law, Wheaton v. Peters, decided in 1834."

From 1783 to 1787, it was the states' responsibility ta adopt legislation regulatinp copyright." The constitutional discussions of 1787 gave Congress the paner over the copyright legislation," and in 1790 it adopted the fint feâeral Copyfight A&.# This statute was amenàad in 1802% and was replaced by the fi& general revision of the American copyright laws in 1831." Other general revisions were made in 187 O~ and 1909.~

Sorne underlying principles have justified the copyright system. They cm be classifiecl in four different categones: (1) natural right, (2) stimulus for mtbity, (3) just rewarâ for labour, and (4) social requirements. This section defines those types of justifications and studies their influence on copyright.

The "natuml right" phiiosophy holds that the author has an exdusive pmperty right in his works because it is the resuit of his labour. Consequently, he must have exdusive contrd over the publicati*on of his creations as well as a right to pmntany modifications or other attacks to his wmrk's integnty.lm The principal argument for mis position is that the fniî of one's mechanical labour is

" Panason, svpo note 15 at 180. 93 Sa ibid at 1838 Sec ibid at 193& 95 Sa Cm@ Act. 1 Star. 124. Sce &ut Pattaron, ibid at 197E 96SctCmghtAmmdhienrrAd,2S~ 171. "SaCqyïgkAct.4Sut 436[hacmiiftaRevisim 1834. SetJsoPUt~~mite15u201. ga SeAcr of h&8,1870, c. 230.16 Star.198. Sec iIso Praason, ibid at 213. Sec Act of Md1. 1909, c. 320, 35 Sut 1075, 17 U.S.C. 8 1ff [hacinriffer Revision 19q. Sec ah Paîmma, ibîd at 213. lmSec Ganiert. Jimes & &vies, supra note 3 at 29. ansidered as his ~wnenhip.'~'One's intaledual pcoduct should be his property as other kinds of labour produds are. For the supporters of this theory, copyright is not a statutory cfeation. The statutory provisions are only a recognition of a higher kind of right Moreover, copyright is a natural right entitled to protection by the common law.ln

Another way of justifying this natural right is through the extension of one's personality. The expression of the person is oonsidered to be as much a part of herself as is her body. Therefore, the author should have wmplete control over her expression. and this mntml should ba pmtected by law.lo3When intelledual property in a work is considered as a natural or innate right, as oppased to a statutory right, the legal protedon mcognized by the State should not require any fonnalities. Unpubiished and published works should be protected fmm the moment of their creation.

The "just reward for labour" philosophy implies that the author demes remuneration for the exploitation of his work. He is the one who has invested time and energy to wate it, and therefore the invatment has to be recompensed.'" According to this point of view. the right of an author over his intellechial -on$ is a teward for the amount of time and effoR he invested in his work. An important fadot in detennining its inclusion within the scope of copyright is the amount of labour invested in aie wwk, This justification can be illustrated by the "sweat of the bmWr thmy."

'O' Sa Goldsteb, s~pcrootc 17 at 26. See ah S. U- lk Madem Law of Cm&t in Cima& @. Jur. Thesis, Mod:McGiil Uiiivasity, 1W)[unpub- at 114. lm Sec Fox,supra note 12 at 2. Iw sa D. sohnston, D. ~obnston~t S. cemng ~ranrirkiMI=: ~hidentanrâng ~he Hi8my4y (Toronto : Stoddat, 1995) u 170. 'wSee~~liacs&~~aatc3a29. 'Os The "swett of the bmw" îkqwu ncmt~ydisaisred m tfn fono- dechions Tele-Dhcr v. Amerim i3usim.s IM-m [199i3] 2 C.F. 22 at 37ff maTele-hct]; Feist. v. Ruml Teleplwnie Service. 499 U.S. 340 (1991). oaliat: FeQapJiwww.nndlrw.a~~ (due accescd: 22 Septanber 1999)(haànatta Feisi]. The "stimulus to creativii point of view supposes that the rewards given to authors increase the numbr of works produced. The guarantee of protection, the passibiiii to contfal copying and distribution of oie work, and the nght to be paid for the work encourages creation and increases the number of works availab~e.'~The fundammtal assumpüon of Mis justification maintains that it is better to have access to a large number of works; this justification is not based on the quality but on the quantity of the mations available. This concept rewards the produdion of wrks without examining the effort invested in it or the product's attributes.

The "social requirement" theory maintains that authors should be encouraged to publish their works. A protection for authon is in the public interest and encoumges the dissemination of worb to the pub~ic.'~Basecl on this theory. the protection of a creation begins with the publication of the work or by its availability to the public. Because unpublished books do not coritnbute to the collective knowledge, under this theory they should not be piatected.

Rie copyright concept, as oppoMd to WJdroit d'auteur concept,'" tradiüonally uses socioeconomic arguments, which are the "stimulus to creativity" and the "social requirement!' arguments: In the United Kingdom, the justification for copyright legislation have œntemd histofically on the eammic and social arguments. Whiie the nemd to protect the natural rights of the author and to enauirage waüvity by pmtecting th8 products of his mind hsahys been mognised, as well as the need to erisure an adequate reward for authors and waters for their efforts, the copyright system aims to encourage the dissemination of ideas and kmwiedge to the general public. There is also a concem to balance the intetest of the author in protection of is wo

North American copyright has followled these rame princip~es."~In the United States, the inclusion of copyright provisions in the Consthdion was primarily justifted by xicioeconomic arguments. The plea for copyright was based on the promotion of leaming."' Intellectml p-, which pwnotes pmgress in the arts and science, was wated to inmase the number of works (stimulus to creativii) and to encourage authons to publisti them (social requirement).

Canadian copyright i also a pudy statutory cwicept."' The original purpose of copyright protection was to etmutage culture "by providing incentives to authors and artists to produce worttiy work, and to entrepreneurs to invest in the financing. production. and disbibuüon of wch ~ork."'~~Cwisequentiy, Canadian copyright protection is also esserrtially based on economic justifications.

What is copyright'? How do we define its essence? Because they have different evolutions and realities, it is unusual to use the same definition for bath Canadian and American copyright. This section compiles the information supplied by the differerit definiticms, historia11fads, and theoreticai justifications and tries to present a global pidure of Nofth American copyright.

Based on the definitions pcovided pioudy and on its historical evdution, it can be assumed that modem copyright belorigs to the author; protection is no longer initially attributed to prinbm or pu#ishers. The initial beneficiary of the

'O9 Ibid a! 30. 110 Scc Sohnston. Sohnstm & U ~~lpomtc 103 a! 170. '" See Pacem~sl(pm wte 15 ot t93. '" Sec Cdairal v+ ib@üsÜm Im (1954) 20 C.P.R 75 at 83 -a CdAhW. Se ahFox, sarpm aotc 12 at 2; RT. Flugba, HMon Cmght 41id Inr&caiol Mgn. loosdtaf (Tommo: Bunaworths, 1984). protecüon is the creator of the work, but he can assign his nght to sameone else.

However, in some situations, the Act initially grants the right to someone other than the author of the work. For example, the Canadian Copyright Act confers a presumption of copyright ownership to the Crown for woh wated under governmental direction."' Because North American copyright is considemi as a privilege attributed by the govemment, this exception is easily justifiable and stems hmthe royal prerogative of the 17" œntury.

The provisions of the Canadian Act attributhg the first copyright ownership to the employer of the a~tho$'~is more pmblematic. This provision is jusüfetà by the econmic philosophy supporb'ng the copyright attribution. Giving an intellectual privilege to the employer encourages private companies to invest in the cmation of mirks, ûecause campanies are usually wealthier than individuals, this exception might tend to increase the production of works. Thus this exception is explained by the stimulus to creatlvity justification of

Consequently, ccipyright wuld be a right habitually attributed b an author. However, it can also be attributed to someone else if it is consistent with the philosophy underlying the amœpt. Theiefore, copyright is not chamctefked by awnership.

The subject of the nght must be an intdlechral creation, a "brain" product, having originali. This characteristic was examined recently by both the American and Canadian courtrr."' busethis thesis considen the application of copyright for future technologies, the "works" definition should not contain technological requirements. As exposeci in the historical analysis, copyright was extended through the ages to indude new techniques, and it would be a mistake to crystallize the evoluüonary definition. For these reasons, the ''works" definition should include the originality concept and appiy to dons independent of their technical support.

The nature of the nght rnight be defineci as an exdusive protection against the distribution of works. This part of the definition contains two important concepts: the exclusive nature of the nght and the distribution conœpt. The exclusive nature of the right attributed ta the author is an important camponent of copyright It is illustrateci by the historical study of this notion and is evident in al1 the scholarly definitions provideci in this thesis. The conœpt of distribution is an expression used only in Mis study. Because the use of the word "copy" might be a technical restriction, this definition prefers the concept of distribution since it seems easier to include pubiic exhibitions and performances. The purpose of this appmch is to obtain a bmd definition of copyright protection that permits inclusion of althe rights linked with copyright

Moral rights are new to North American copyright1" 8dh the United States and Canada are now members of the intemational Beme Conmhbon, which obliges its memben to indude rommoral fights in thir copyright'" North Ameriean

1l? Sec Tele-Direct, suppa note 105 at 37E Fe&, supra mte 105. "'Sec Aide, supra me17 at 221fE RD. Gibbcns, "nit Mora1 Ri- of Artist and the Copyright Act Amaidmnw" 15 Cul Bus. LJ-441; 1. Berg, "MdQim: A Le& nistoriai d Amhropologicai Rtappraisain 6 I.P.J. 341; AR Rago, "The Mord Righs ofthe Author: A CompiritM SN^ 7 1 Dick L Rev. 93; D. Vava, "Authoh Mord Rigbu in raiuAim14 UC. 329; D. Vavcr, "Author' Moni Ri@ ad the Copyri* Law Rcview Comminee's Report: W(h)itaa Such Rigbu Now?" MdU.L. Rev. 284. lL9 Beme C-mfor ihc Protection offiferrpy dArfisfic Works, 9 Septanbu 1886.828 U.N.T.S. 221. an 6bk (I)lndepeademtyofthtuithdsea,llOmicri~tndevcnrttathtnrnsférofthesiid riehu, the author shdi hmth ri@ to ciaim autbontiip of the work and to object to asydisiOmo9~0ltotat&rmOdificmono~orotha~oryràoninrrlrtioa to, the said work which wddbe prejudiciai to his homir or cepuaion. copyright provides to the author a right to the integrity of his works and a right to daim or to avoid the patemrty of his creation~.'~~To undentand the influenœ of

(2) The rights gremed to the author in accordance with the preccding paragraph shaV &a his death k maintahal, at ledst until the atpiry of the eaiwmic rigtns and shaü be arercisable by the pasons or institutions authorizcd by the Iqisiation of the coq whmprotection is ciaimai Houmer, hr muaaies whose kgkhioq at the moment of th& rstification of or to this Act, dots not prowdc for the protection afts the deah of the mhrof aii the ri@ set out m the prsading puagaph may pmvide that some of these ri@ may. afta his death. ctase to be maintained (3) Thc mtuu of redress for srfiBuardine tbt r@hgrmal by this Anick sball be govemed by the lqislation of the cormay wkeprotection is ciaimai. Sœ ahAide, s~rprrrnote 17 at 221& Contrrrting Pmes of Tmes Ahnislered by iy0, ouiine: WW) chttp://www.wipo,o~~mainhmiydated: 22 Septcmkr 1999). ''O CdmCM@ An, supm note 1. S. M.l(I); Howmr, the American protection for moral righu is iimited to visual art, AmCm@ Act swpcr nMe 2.8 MA: Rights of cenain authors to attriion and intcgrity (a) Righu of Amikition and htcgrity. - Subject to don 107 ~d bdqauh of tbe ackrigtns providai in section 106, the author of a work of visual an - (1) shaU hve the ri* - (A) io daim authorship of tht work, and (B)toprrvcntibtustofhisarhaiumta,t&uhhorofuiyworkofvWuJart which he or she did not mate; (2)~bPntkrightmprrvemtheuscofhisorkauaeutiic~oftkworkof visuai an in the evan of a distortion, mutilation, or other modification of the work which wodk prcjudid to his or ha boaor or rrpuutioa; and (3) nibjeci to tbe limiutions set fonh in section 113(d), shall hm tbc ri& - (A) to pnvmtuiyimnmotuidist~nait;i.t;oqaoti~u modiacition of that work wfacbddkprrjudihalmhUorhahsaormnpititio9drnyintarcional distenaih7rtiaq or mUdincrtioa of tha wok is a vialrtiaa of ch ri@, aad (B)to prcvent any dertniction of a work of mqnid~untrr, Md my intentionai or grossiy W*gaa ciamdm oftha work is a viohion dtht ri@& (b) Scope rad Execiae ofiügb. - Wythe unbor oEi mrk af nnul art bu the rigbu codami by mbsectim (a) in Ihit warL whether or aot the authof is the copyright owncr. The Mhonafajoiatworkofvisuil M uecoowmsofthc rigb!scontLmd by subsection (a) m tiia wock. (c) Exqtiom. -(l) Lhcmodificitionofa worlrofvisrul in whicbir adtofthe passage oftirnt or the inhacm na~cof the maauis is not a &onion, anrtüation, or othcr modinatioa daaikd m aibseeàoa (aX3XA). (2) The modifieaaOn of a wodc of Mdan which is the nailt of cmemfioa, or of the publicprrsemia'toq ~l~rnd~ofihtworkUnotodaüuction, distonion, daion, or der modifidon desuibed in subsectim (4x3) unies the daWnYmi#ibygross~eeaa. (3) Thc rigbts deseniin pinienphs (1) and (2) of nibaecwa (a) SMaot apply to any rrproduaig depinion, poctnyil,orotkruseofaworkiq upa~ormanycomweaOn with any itan daaikd in subprnsraph (A) or (B) oftk ddhitio11 of "work of visual ut"in~n101,rndanywch~dcp~pmiS,orotharutofr work is m a datrucri- distonion, mutiitcion, or ohm dcatioo desrri in prnsnph (3) of arbaeclioa (a). (d) DumioaofRi&s. -(1) Wnhrrspcctto worksofvisurlactcrwtai on orrAatht effictM dm set fonh in don6lqa) of the VIArtlsu Kgb Act of 1990, tht copyright on the technological evolution, the moral right concept must be included in the copyright definition.

Finally, the definition of copyright used in this study will be: an exclusive right against the distribution of an intellectual creation given to an author or to someone else. The attribution of the right to someone else should however be consistent wth the justifications underlying the copyright concept or with its history. The copyright privilege also includes the following moral rights: the right to be recognized as the creator of the work, the nght to remain anonymous, and the rigM to the work's integrity.

This definition does not pretend to be the official general interpmtation of copyright in North America. Canadian and American copyrights are two different and complex systems. Howeve~,this deiinition, based on the common features of both systems, provides an interesting picture of the North American reality of

rigtns confimd by subsection (a) shail endure for a tm coasisting of the life of the author. (2) With rcqxct to worlrs of visurl ut creatd Won the &&ch date set fdnh m section 61qa) ofthe ViAM Righu Act of 1990, but title to which hu not, as of ~cffictive&e,beai~tiomthtuithat,thcrighucanfandbyJubsccti~ (a) shaiibebeauivewith, andshaüexpireatthesamctimcas, thtrigtnscanfand by &on 106. (3) inthecueofajointumk prepnd bytwootnwrrc authon, the righu caafimd by subseetion (a) sidinidure for a twcoasis&ing of tbe kfé of tbc Iast s\inmiing author. (4) Aiitermsoftbcn$hueonfwredbynibwecion(a) nmtotheeadoft&crIaduyar in which they would othawWc expire. (e) Tmsk and WUver. - (1) The ri@ confmsd by subdon (a) my mot k wm&d but thor ri@ miy bc waivaî âthc author cxprusty agrcu to nich wahm in a wrincn inrmimcm si@ by tht author. Such inaumm SMspedaüy idemify the work, aad uses of chat work, to which the derappiics. anâ the waiver sidi appiy only to tbc work ad u# so idemifiai. in the cuc of r jaim work prepued by two or inore autban, a &er of ri@ under this paragaph deby ont such author wh sucb righu tbr aii aich authon. (2) Owaaship of tùe rights cdkaiby sribseciion (a) with mpsct to a worlr of via14 art is âistinct fiom owmdip of any copy of thrt work or of a copycigh~or aiiy exclusive right unéa a ~*ghtin tiut wdc. Tmsk of owacnhip of any copy of a work of- art, or of a coMght or any achisive ri@ unda a copyright, shall wt coastibdtr~ofthtrighucaafarsdby~(a).Eirccptumryotbawisck agreaî by the author m a written insmmiem igacd by the author, a waive of the rights confandby subsection (a) withrrspect to a wokof visuJ in sban mt amfimea work protection. It will be the basis for understanding the influenœ of copyright on the evolution of technology.

Since the introduction of copyright, new technologies have emerged. lnventors have found new ways of reproducing works, and authors have atternpted to extend copyright to protect against such reproductions. Many tirnes, copyright has been forced to address new technologies- This chapter examines =me of the most influential technologies having appeared during the last century and analyzes copyright's response to their existence. The devices desuibed herein were chosen because, when created, they introduced new ways of wpying. Some technologies, like photogmphy, wem algo a new fom of work.

This chapter first looks at the evolution of each technology. This factual study might be surprising in a law thesis, but it is essential for a complete understanding of copyright law since it permit$ us to grasp the prooess by Mich a work is wpied or transformed and the social impact of each nwdeviœ.

The description of each machine and its invention is followed by the ressponse of North Amedcan copyright, which most often originated in United States, but sometimes also appeared in Canada. This study evaluates the most influential reaction to the technology being examined, no mattetr in whieti country it happened.

In the 15" mntury. the need br documentation increased. Govemments were extending their jurisdiions, their administraüon was becoming more comptex, and more ûade was developing. Scribal monks, sanctioned by the Church, had overseen the maintenance and handcopying of sacreci texb for cerituries, but

transfcr ofowmship ofany copy of tha wo& or ofowaaship of a copyright or of any exciusive nght unda a copyright in that work .* they were unable to keep up with the demand. Consequently, the secular world began to foster its own version of the copyist profession, and many new wnting shops opened.

Johannes Gutenberg, a businessman from Mainz, in southern Gemany, borrowed money to develop a technology that wuld addtess the growing need for rapid and cheap production of wriüen documents. He developed the printing press by combining features hmmachinery usxi to produce textiles, paper and wine, His most signifiant innovation was rnovable metal type: Each letter was carved into the end of a steel punch which was then hammered into a capper bknk. The copper impression was inserted into a mold and a mbiten alloy made of lead, antimony and bismuth was poured in. The alfoy amied quickly and the resulting reverse image of the letter attacheci to a lead base could bet handled in minutes. The width of the lead base varied according to the letter's sire (for egmple, the base of an "i" would not be neatiy as wide as the base of a 'W'). This emphasized the visual impact of words and dusters of words rather than evenly spaœâ hMm. This prindpiet lent an ametk elegance and sophistication to what seerned to rnany to be the magically penct mgularity of a printed paw. 12'

Gutenberg's strong market was the selling of indulgences, those slips of paper affering written dispensations from sin that the Church was selling to fund its projects. He also designed a Latin print Bible, whkh became his most famous work. Despite the drarnatic success of his invention, Gutenberg defaulted on his lm, and so he last his printing establishment and his techniques wero made public;19 this situation qiains the rapid and wid8spnsd use of his invention.

In 1476, William bx!on estaMished England's fint printing press. Caxton had ben a prolific transistor and found the printing press to be a good way to promate popular literature. Caxton printed and distributed a wide variety of

"' G. RubiiGtrtdrg rad the HM1Ckini9m in Wmm EraopP. onk: Communication ad Monnation Technologies courx (ünivasjr of Safia (Bulgarie))

Stephen Daye brought the first printing press to North America in 1638. Based in Cambridge, Massachusetts, Daye and his sari Matthew, a pnnter's apprentice, printed a broadside and an almanac in their first year of operation. In 1640, they praduced 1700 copies of the Bey Psélm Book, the first book to be printed in the

The historical relation between the pfinting press and copyright protection has already been presented in the first chapter and thus will not be discussed again hem.'" However, it is important to underline that the machine was so popular and useful that a legal system had to be creafed to regulate the copying of works.

Gutenberg's printing press had an important influence on copyright history because the appearance of the machine created the need fm the conception of copyright. But copyright also iniluenced the deviœ's distribution and utiliion. For exampie, in 1533, when Henry Vill sanctiined a statute preventing the printing of bodts in England by kreïgn printers, he certainly influenced the utilization and disîribution of the printing

tn Seibid Sec ibid; G.F.Hmdasoa, "Cmtüa~CW@t Law in the Cmext of Amaican-Cmadïm RdPtionsw (1977) 35 C.P.R. (24 67. '* See Part Pz, abow. '= sœ soct-on 22, abovc. North Arnerican copyright, which is based on British copyright iaw, also controlled unauthorized copies of copyrighted However, when copyright began in North ~merica.'" the printing press had already existed for more than three hundred years and was a well developed and widely disseminated apparatus. Therefore, it was late for North American copyright to delay the device's development.

Moreover, the use of the device was enauraged by the American legislature. In 1891, the American govemment amended the Copyright Act to include foreign authon within the copyright sape, on the condition that the work be typeset in the United statedD This pmvision pmbably encouraged the use of the printing press in North America, annulling the negahive eflect of the printing limitation inherent within copyright provisions.

Consequently, considering the degree of development of the technology and the provision of North Arnerican copy@ht, it can be assumed that the latter did not delay the deveiopment of the prinüng press. This coridusion is illustrated by the well developeâ publishing indurtry existing thmughout the 20" œntury.lM

Photography, the first technology ta challenge modem North American copyright, wmbined two distinct scientifc processes already having been in existence for hundreds of year~.'~'The (ht of these pmaare?r was optical (the dark rom system also named Camera Obscurs), Mile the second was chemical (=me substancm change color Wh I~~M).'~

The first successful pidure was produced in 1827 by Nicephore Niepce, using a material that hardened when exposed to lightlu The pidure required an exposure of eight hours. On 4 January 1829, Niwdecided to begin a partnership with Louis Daguerre. Niépce died four years later, but Daguerre continued to expriment. &on, he had diacovemd a way of developing photographic plates that reduced expure time hmeight hours to half an hour. He also discoved that an image cauld be made permanent if immersed in salt

Daguerre named the process "dagueneotypeF9.This process was expensive, and only one copy of eabi pictun cwld be made.'" From a copyright point of view, that could be regardeci as an advantage: the merof the portrait could be certain that he had a piece of art that could not be dupliated. If, however, hua copies were quired, the only way of caping was to use two cameras side by side. Them was, therefon, a gWng need for a means of copying pidures that "daguerreatypet" cwld never satisfy.

The answer to this problem was provided by a rival of "daguemtypel', "calotype". invented by William Henry Fox alh hot." "Calotype" used the papa negative, which haû becorne available in August 1835. The great advantage of Talbot's rnethod was that an unlimited number of pasitive prints couid be made. Howevef, the mgath was small and of poor quaiii mpared wiai the images produced by the daguerrentype process. Nevertheless, by 1840, Talbot had made some significant improvments.

'" Sst K. Micsowrn, Behind rhr! Screon: îkHisrary adTecktques of tk Moicm Picm(New York: Dtlrconc Rus Book, 1965) at 40. '= Set ibui at 42; Leggit, supa note 13 1. Set tesgq ibiù; ibid rt 43. '" Sec idid; Maqowan, siqno mte 132 a 42. The expansion of photographie establishments reflected photography's growing popularity. ln 1850, there were already 77 photographic galleries in New York alone. The demand for photographs was such that Charles Baudelaire, a well- known poet of the period and a critic of the medium, commented: "[O]ur squalid society has nished, Narcissus to a man, to gloat at its trivial image on a scrap of metaPx

Talbot's photographs were on paper, and inevitably the imperfections of the paper marred the image. Several photographers experimented with glass as a base for negatives, but the proMem was to make the silver solution stick to the polished surface of the glass. In 1848, a cousin of Nicephore Niipce, Abel Niepce de Saint-Victor, perfeded a process of covering a glass plate with egg white sensitised with potassium iodide, and washed with an acid solution of silver nitrate.'37 This new proces made Ibr veq fine detail and much higher quality. However, it was an extremely slow process. Photographs printed on this substance were usually of architedure and landscapes because portraiture was simply not possible.

In 1851, a new era in photography was introduced by Fredefick Scott Archer, who developed the Collodion proces~.'~This promss was much faster than conventianal methods as it reduced expmre time to two or three seumds. In addition, the Collodion process was much cheaper than "daguemotype". However, this process required a considerable amount of equipment on location. Moreover, there wem various attempts to preserve exfmed plates in wet candii kr deveiopment at a mmconvenient time and place, and the preservatives used lessened the sensiüvity of the material.

Leggat, ibid ln Seibid '" 'ïbiX The next major improvment came in 1871, whm Dr. Richard Maddox discovered a way to use gelatin instead of glas as a base for the pfwtographic plate.1a This lad ta the utilization of Me dry plate pcaaas. Oiy piates could be developd much more quickly than any previous technique. The introduction of the dry plate process marked a turning point. No longer did one neeâ wet plates or a darkroom tent.

Celbkid was inventeô in the mrly 18601s, and John Carbutt persuaded a manufadurer to produce vely tbin celluloid as a backing for sensitive material." 1his improvement Idto the introduction, in 1888, of the box camefa by George Eastman. Specialized knawledge was not requited when taking photographs.

It twk forty yean for North Amencan copyright to to to photographie techndogy. In the eariy 186b's, phatography was a lucrative business. People wanted picaires not mly of tfiemselves but also of celebribies and pditicians. Wth the evolution of the art, it was now possible to make numetous perfect copia of a picAure. Considering those mnditions, phatagraphers pieaded for copyright protection.

The United States legislature was the first to mpmd and, in March 1865, Cangress amended the CopyrQht Ad ta indude photogtaphic prints and negabm in the dam of copyrightable works.'" The -on given to photography wsthe same as for other types ofwork, and the Act procedeci by induding photognphs in Me gcrrieml list d pfotwed S.'^

'19 see ribd SCt 1baL "' S4C An Act Sppk1110nlaita am Act enbenbfled"An Act lo Aiirrd îkkrak Acls hplïngCcip&k 13 US. Stat at L. 540 (1865), S. 1. The C.nnnriirn kgisIitor b11owed m 1868. Acre cmccmm Iri propiepropiedhimin? et mhtiqwc. 1196, 31 Vk, c. 54, ut. 3. Sec Y. Gcndrny La pwrrrh dis phorogrqks en &t d'mmrmmèriaàm, briihpaiip et dm(Pwk Bibüodhp dt droit 1994) at 4 19 [baciadta PrcEieerion ck-1; Gùdste mpnotc 17 at 58- '"~dt~roaech'~&phq@n& ibkit3. in 1885, the American Supreme Court addressed the constituüonality of this protection in BumwGiks Lithogmphk Co. v. S8myYiuNapoleon Samny was a wellknown New York photogmpher wtio had taken pidures of Oscar Wilde. Bum-Giles tithographic Company had reproduceâ one of these pictures and had sold 85,000 copies without the photographets consent. Samny sud the pinter for copyright infringement.

The defendant pleaded the unconstitutionality of the legal disposition. His fi& argument was that because a photograph is an image, it cannot be inciuded in the definition df "wriüng" mentioned in the Constitution. The Supreme Court dismisecl this argument. The Court examined the first CbpytQht Act of 1790 and the Act of 1802. 60th proteded not only books but also maps, &arts, designs, engravings, etchings, UJ&,and other prints. The Court underiined Bat, upon the men who participatecl in üte tedadori of aiose Mutes, many were memben of the convention that framed the mstitutional disposition conceming copyright Bas& on the broad interptwWosi oiey gave 10 'Wing", and considering that this amchhad not been âiiuted during a penod of nearly a century, the Supreme Court conduded that the constituüonal provision was not limited to books only, or wtiting, in the lirniied s8nse of a bodr and its author.'"

The Court interpreted constitutional prot9dion for 'Wing" as referring to the literary produdons of auaion, induding ail forms ofwrib'ng, printing, engravings, elchings, etc., by whieh the ideas in the mind of the author an given visible expression. The Court condudeci that the only feason phobqraphs uiere nat induded in the extended list in the Act of iûû2 was simply because the techndagy did not w'st at that tirne. Therefoce, the Court stated that the Constitution was broad enough to cover an Ad auaiofizing wmht f9r photographs, as hgas works made using this technobgy wre the original intelledual conceptions of the author.lu

The second argument of Burrow-Giles Liiographic was that a phohgraph is a mirror of reality without original input by the author. The Court again held in favor of the plainüft The third finding of facts says, in regard to the photograph in question, that it is a 'usefui, new, hamonious, characteristic, and graceiùl picture, and that plaintiff made the same ... entirely from his own original mental conception, to which he gave visible forrn by posing the said Oscar Wilde in front of the camera, seleding and arranging the costume, draperies, and other various accessories in said photograph, arranging the subjed so as to present graceful outlines, arranging and disposing the ligM and shade, suggesting and evoking the desired erqxession, and hm such disposition, arrangement, or representation, made entirely by plaintin, he produced the picture in suit' fhese findings, we think, show this photograph to be an original work of art. the produd of plaintiffs intelledual invention, of which piaintiff is the author, and of a dmof inventions far which the canstitution intended that congnws should secure ta him the exdusive right to use, publish, and sell, as it has done by secth 4952 of the Revised statutes.'"

The Supreme Court decided unrnimwsiy in favor of the pho(ographer.'47 This stmg decision secured copyright protedion for phatography, but one douM still remainad: Can a commercial product be pmteâed by m~iight?'*A long line of decisions had supposed this restridion, and since photographs were mtly made for mmmercial purpoaes, a kgal unœrtainty existed.lu

"' Sec ibid rbid '" ~otan atp~uiraioaof the cmrpptorch see W. ~urn. T- cimnge anti ~tan~tory Imapmriioam(1968) 2 Wc. L. Rev. 556. '" SaGdIdnein, mpm note 17 at 60. '* Se ibid at 60. Sec also T& MdC's, lûü U.S. 82 (1879). The Supreme Court in 8ieisiein v- DanaMson ~ithogmphing'~anmcid thit question in the affirmative. The plaintiff, George Bleistein, was a printer. His employees had designeci advertising posters, bas& on pich~ms, for the promation of a cireus. The posters contained a portrait of Wallace, the circus proprietor, in the corner, and Ilettering &ring wme slight relation b the scheme of deeoraüon, indicating the subject of the design and the fact that realily auld be seen at the circus. The defendant, ûonaldsbn Lithographing, had copieû, in reduced fom, three of the posters. Bleisbin sued Oooaldson for apyright infringement.

The trial artand appeels court rejmthe plaiMi's pretensions on the basis that it was a commercial product and that commercial products were not protected by copyright.'" The supra me^ Cnvt stated differenüy, underiining that a picture used for adverüsement is neverttreless a pidure, and thetefore a subject of copyright. Exduding from the copyright sape pidures made for advertising irnplied exduding worlrs based on their wbject. The Court guarded against mis subjechve appruach, stating:

It wouM be a dangercus undMaking far persans trained mly to the law to canstihite thanselves final judges of the wrth of pictonal illustrations, outside of the narrowest and most obvious limits. At the one m,some works of gmius would be sure to miss apWation. Their very noveAty would make tfiem repulsive until the public had IeaW the new language in which their author spoke. ît may be mare than daubted, for instance, whether the etchings of Goya or the paipaintingsof Manet wuM have been sure aï protedion when seen for the first time. At the other end, Whtnrcxild be demiad ta wtiich appealed to a public tes educated than the judge. Yet if they command the interest of any public, they ttave a oommcial vaiue,-it WOU# be bord to say that they have not an aetsthetic and edwonal value,- and the taste of any public is nat to be treated wiai eontempt. It is an uttirnate faet for the mament, wha&ver may be Our hopes for a change. Tbat these pictures had th& worth and their su- is sufficiently show by the desire to reproduce them without regard to the plaintMi$ righ?dS2

The Bleistein decision secured aie commercial use of pictures. Photographers became interested in the populat use of their art and subsequently increased production for ad-sing carnpaigns and the like. The BumwGiles and the Bleistein decisions confirmed that photography was entitled to receive copyright protection in North America.

At first copyright seemingly had no influence on photographie technology. For forty years, copyright ignored the new technique and photographs wre taken and copied without restric?bn. The consecration of phatographs as a piece of art, or a copyrighted work, pmbably increased the popularity of the technique by giving it-a type of nobility, of racognkabi~ity.'~It certainly afforded more rsairity to photographers by giving them exdusive contrat ovef their creations and distribution of sudi woks. Those detments contributed to the popularity of the developing medium.

Howiever, the greatest impact on the use ofthe photography was probably made by the Bleisfein decision.'" which mfirmed protection for photogmphs Dken for commercial purposes. The decision in- advantages in producing pictures for ad~e~sements.Hih-ievd photographers became more interested in supplying pidures for promtbmf purpases since they muid control the distribution of their wok. AdWsers were ready to pay more for high qualii photographs because they muld Wusively use the work. A lucrative industry was cretated. Photographs wen seen and known by the general public. Consequently, wnsumers became aware of tfte technoiogy and manto use it

In mi In Sec sripnrr note 14 1 and acco~taa. 'U~svpomte150indoeawpanyingtext.

It was Elias Parkman Needham who originated the idea of the perforated sheet of paper allowing the release of musical tones as the perforations passed over the ~penin~s.'~In 1886. George B. Kelly developeâ the slidbvalve wïnd mdor, and this device was universally used to rotate the drive spool holding the roll of paper music in p~a~er-pianos.'~~ ln the United States, W.B. Tremaine and his son began manufacturing automatic playing musical instruments.'" Their distribution of the "Pianola" was a great success, and soon it became a generic tmapplied to all types of player-pianos.

The bwinning of the 20" œntury saw the standardization of roi1 sizes and perforation sgsang, pemitüng a mas penetration of the market'" The interest in this type of technology is easily understandable. Befom this device, the only way to have access to music was by buying sheet music. Consequently, acçess to musical entertainment was limited to those who could play the music or 989 e public perfomanœ. With the player-piano, everyone, musically skilled or not, could listen at home to the sounds they Iiked at the moment they wanted to hear it. Teenagers and young adults were buying al1 aie latest popular tunes. It was the beginning of the music industry as we know it today.

The next step was to reproduce al1 ttie nuances that the hurnan artist couid put into hi$ playing. The Weite Organisation of Freiburg, Germany made the Weite- Mignon expression piano, and by 1905, the cornpany was gedting various composers and pianists of the day to record paper rolls having not onIy

'" Sec Hisrory ofpiam Roi4 ibid IJ9Sec ibid; HoiWy, sripo note 157 at 3. lmSce Hisros, afhRd4 ibid Sce ibid; Hollidry, svpa note 157 at 4. perforations recording the notes played, but addiional perlorations to record the aitist's expression in his interpretation of the piece played.lq

These expression player-pianos, where they remain operational, are historically very significant as they are Men the only means for today's generation to hear the performances of some of the musical giants from the tum of the œntury. These player-piano perfonancer are still umd to pmduce ~0s.'~

The Great Depression marked a decfease in the sales of player-pianos as people were no longer able to afford this type of private entertainment. However, with the deveiopmerit of silent movies, player-pianos were used as an ampniment." This utflizaüon Id to an extension of the player-piano, which, with pipe organs and efkts made to mate other sound effects, was now able to recteate the moud of the film. But even this use declined wtren movies became "takies" as music now came with the film and was usually replayeâ thrwgh elaborate ekctrical nproducüon devictdM

North American copyright proteàed tradiinal sheet music hm 1831 onwards.la How8ver. them wem no similar provisions for mechanically- reproduced music. Was a piano roll a reproduction of music and thus a copyright infringement? It is one thing to consider that a exad copy of a book infn'nges copyright, but it is sornething dse to retcognize that the piano dl, a sheet of paper with tiny holes, is a reproduction of a copyrighted music sheet. In 1907, when the popularity of the player-piano was at its peak, the American Supretm Court was &ad wilh this questi~n.'~ WhiteSmith Music Publishers, representing the composen of &le Cotfon Dai@ and Kentucky Babe, two pieces of music that had already been published in the fom of sheet music, sued Apollo, a dealer of piano players and perforated rolb of music, for copyright infringement. The prwf disciosed that certain of the defendant's rolls, used in connedon with the player-piano, reproduced in sound the two alreadycopyrighted pieces.

White-Smith Music Publishers alleged that the reproduction in the perforated rolls infringed copyright, and Apollo argued that it did notaThe Court first defined the technology: Without entering into a detailed discussion of the mechanical construction of such instruments and rolls, it is enough to say that they are what has become familiar to the public in the fom of mechanical attachments to pianos, such as the pianola, and the musical rolls consist of perforated sheets, whkh are passed over ducts connecteci with the operating parts of the mechanism in such manner that the same are kept sealed until, by means of perforations in the rolls, air pressure is admitted to the ducts which opme the pneumatic devices to sound the nates. This is done with the aid of an operator, upan whase skill and experienœ the sueeess of the rendition largely depends. As tfte roll is drawn over the tracker board the notes are sounded as the perlorations admit the atmospheric pressure, the perforaüons having been so ananged that the effect is to produce the melody or tune for which the roll has been cut.

Speaking in a general way, it rnay be said that these rolls are made in three ways. First With the score or staff notation before him the arranger, with the aid of a rule or guide and a graduated schedule, marks the position and size of aie perforations m a sheet of paper to conespond to the order of notes in the composition. The marked sheet is then passed into the hands of an operator who cuts the apertures, by hand, in the paper* This perforated sheet is inspected and corrected, and when corrected is called 'the original.' This original is used as a stencil and by passing ink rollen over it a pattern is prepared. The stencibd perfOlations are then cut, producing the master or templet The master is placeci in the perlwating machine and reproductions theteof obtained, which are the perforated rolls in question. Expression marks are separately copied on the pedixated music sheets by means of nibber stamps. Second. A perforated music roll made by another manufacturer rnay be used from wtiid to make a new record. Third. By pîaying upon a piano to which is attached an automatic recording deviœ producing a perforated matrix fmm whid a perforated music roll may be pr~duced.'~

The Court reviewed the jurisprudence and conduded that, even if the question was never pmperly asked, existing obiter dicta unifomly considered that the piano rolls were not a copyright infringement It dso remarlsed that Congress was aware of the situation and had chosen not to alter the Copyright Act.

Moreover. the Court stated th& the 8eme ~onventhn'~did not pmvide protection against the mechanical reproduction of a work. Because the United States provideci miprocal protection to foreign countries, the Supreme Court cancluded that "it could not have been the intention of Congress to give to fareign mens and composen advantages in ouf country which, according to that convention, were to be denied to our mensabr~ad.""~

Based on the fact that copyright is a statutory right, the Supreme Court emphasized that a music21 composition is an intelledual creation that first exists in the mind of the composer, even thougti he cornmunicates it for the first time on a musical instrument. This -on is not ptoteded by copyright until it is put in a form that others can see and reed. fhe Court underîined that the statute does not provide for the protedion of the intellactual conception, however valuable such conceptan rnay M.It orily proteds a composer of a tangible work against L unauthorized publication and dupli~ation.'~'

The Court also wondeced about th8 nature of the perforated mils. Testirnonies revealed that even those skilled in the making of piano mils were unable to read

la lbid 169 See &me C-O, supnr note 119. White4mith.spra note 167. ln See ibid them as musical compositions, cdntrary to staff notations read by pefformers. Therefore, because it was not in a form that others could se8 and read, the Court stated that piano rolls were not protected by copyright Based on this finding, the Court concluded that even though perforated rolls were part of a machine and that, when duly applied and properly operated in connection with the mechanism to which they were adapted, they produced musical tones in harmonious combinations, they could not be considered as copies of original musical works within the meaning of the Copyright Act.

Conscious of the economic consequenœ of its decision, Justice Day, writing for the majority, added:

It may be tnie that the use of these perforated rolls, in the absence of statutory protection, enables the manufactursrs thereof to enjoy the use of musical compositions for which they pay no value. But such considerations properfy address themselves to the legislative, and not to the judiaal, branch of the govemment. As the Act of Congress now stands we believe it does not include these records as copies or publications of the copyrighted music involved in these

The message was heard by Congress, which endorsed a bill the following year that induded piano rdls in the copyright sape and reStrided unauthorized mcrchanicsl reproductions of musical cnnporition~.'~Fearing the mation of monogolies in the music industry, the bill submitted the rigM ta a campulsary license: Once a copyright merauthorized the mechanical reproduction of his musical composition, any other mpany was free to make its own recarding of the composition simply by paying the copyright mertwo cents for each record

ln Ibid in Catida, the Court of Appuis mrdt a srnilu decision Sœ v. Wiitgiu, [[19001 1 Ch 122. Sec aisct FgJVPO mtc 12 at 178. ln Sa Revision 1909. nrpcr note 99. Sec ah Goldstein, supu note 17 a 67. in Cdprotection for piano mih was induded m the C+gh Act of 1921. ~panote 91, S. 3(1)(d). Sec rlso Far, rbid at 179. 1 pmduced.'" Alm. North American copyright was exlenâed to protect aganst unauihorizeâ copies of a musical work in a piano roll f~n."~

In scnrtinizing the history of the player-piano, it is not until the Great Depression in 1929 that a diminution of the deviœts popularity becornes evdent.ln Until this went, interest in the piano-player was growing and irnprovements were continually made to the device. The indusion, in 1909, of piano rolls in the copyright sape appeacs not to have afktded, either pasitively of negatively, development or availability of the instrument

The obligation to pay myaities to arnposers for the utildon of their works surely increased the cost of producing piano rolls. Piano-player manufaetUren had to negotiate with the amposer Wom adding the mgto Beir repertwy. This imptied ihat more time, energy, and maney had to be investeci in the produdion of "hW.

Hwwer, sinœ the player-piano was already highly popular, the costs wre probably covered by the pria consumers were willing to pay fOr piano mlls. Because aiey had already invsdted rnoney in the instrument, consumers were still interestecl in buying piano mlls even if it was at a higher price. The technoiogy was alreaây known and widely distributeci. The growing market pmbably decreased the initial pnce of the rolls and, at the same tirne, annulM the inflation resulting fmm copyright protedon. Moreover, the protechn given to piano mils probably also canœkd out the negaüve eaeds of Wding the reprodudion of musical oompsitions. Therefore, it appears that copyright did not ifluence player-piano technology. The economic depression and the technological evolution were the major factors influencing development of the invention.

In 1839, because photography was gaining popufarity, the scene was set for the creation of motion pictures. The concept of moving images as entertainment was not a new one. Magic lanterns had already been employed to pmject images printed on glas slides, and the us8 of levers gave the impression that these images wn m~ving.'~AnomcN availabie mechanism. the "phenakistiscope", consisting of a disc that contained pictures of successive phases of rnovement cwld be himed to simulate m~vements."~ The "zoapraxiscopel' was afso a device that pmjectd a series of images in successive phases of movements. Thetse images were obtained through the use of multiple cameras. A fundamental prinapie of mobjon-picture photography and projection is that the pidure must, for a Monof the second, be motionless behind the objective during exposition and projedion, to then pass by in phases. The human eye recognises and preservm the pidure in that fraction of the second, with the film rolling on and the objective opening up again, and this impmion or visual phen- vividly lives on in the human brain although no new impression is rnade on the retina between twrr pictufes or two phases of motion. The human eye, hawever, compensates for this by pereeiving thmotion to be in continuity and not in phaseS.ln

The motion pictun system began with the invention by Thomas Edison of a camera capable of recording successive images. In 1888, Edison filed a caveat with the American Patent Ofliœ desaik'ng his ideas br a device that would "do for the eye what the phonograph does far the eaf: record and reproduœ

ln Sce Macgowm, supa note 132 at 26. 'm See ibid objects in motion.'" Edison called the invention a 'kinetoscope," using the Greek words "kineto" msening "movement" and 'lscopos'l meaning "to watch."'"

After a lot of experimentation, a prototype of the kinetoscope was completed in 189î.la It consisteci of an upright wooden cabinet, 18 in. x 27 in. x 4 ft. high, with a peeptioie with magnrfying lenses in the top ...lnside the box the film, in a continuaus band of approximately 50 feet, was arranged amund a series of spoois. A large, electrically driven sprocket wheel at the top of the box engaged corresponding sproclret holes punched in the edges of the film, which was thus drami under the lens at a continuous rate. Beneath the film was an electric Jamp, and between the lamp and the film a revdving shutter with a namrw slit, As each frame passed under the Iens, the stiutter pemitted a flash of Iight so brief that the -me appeamd to be fmam. This rapid series of apparently still frames appeared, thanks to the penistence of vision phenornenon, as a moving image.lu

For the new invention to be poputar, films were needed, and thus Edison decided to build a motion pidure production studio. The studio had a roof that could be opened to admit sunlight for illumination. To keep it aligned with the Sun, the building was mounted an a rotatirtg pivot. The first motion pictun made in this installation was deposited for copyfight at the Copyright Office in August

The next step was the invention of the projector, which was more economically feasible since only one machine was needed to show the movie to many spectators. This device was first presented publicly in April 189~.'~

That same year, two brothers, August and Louis Lumiere, from Lyon, France, patented the machine that would revolutionize the motion-picture industry. Their "cinematograph" was able to peiform three actions: making moving picture photographs, projecting them, and making prints from the negative. The new machine was made public on 22 March 1895.Iw

The first North Arnerican copyright case conceming motion pidures was filed by Thomas €dison.'" One of Edison's mployeets had msde a movie about the launching of Kaiser Wilhelm's yatch, the Meteor. Lubin, a rival of Edison, capied and distributed this movie without Edison's pemiission. The trial court refused to grant copyright protection on the ground that motion pictures were not expressly covereâ by the Capyn@htAct. In 1903, the Court of Appeals reversed this niling, stating that motion pidures stemmed hmthe technolagy used for phatography. Therefore, the indusion by the Arnerican Congres of photography in the Copyn'ght Act encompassed motion pictures. Another interesting problem was the adaptation of a protected work for ~inema.'~Some movies had plots barn on an already published novel or story. North American copyright had already recognized a copyright iniiingement in the translation or dramatization of a work without the permission of the copyright owner.lg Howevet, the Ad and case law were silent regarding cinematographic adaptation.

In the same year that the Court of Appeals decided the Edison case, the American Supreme Court addressed the question in Kalem v. ~erper~ms.'~ In this case, the Kalern company was producing motion pictures, and the company had employed a man to read Ben Hur and to write a screenplay adapting the novd for the cinema. Kalem, based on this adaptation, took negatives for moving pictures of the different scenes, from which it produced films suitable for exhibition. It advertid aiem under the title " Ben Huc Scenery and Supers by Pain's Fireworks Company ". The film was sold and public exhibitions soon

The Supreme Court first addressecl whether the public exhibition of this moving picture inftinged any rigMs under copyright law By Rev. Stat. 4952, as amended by the Act of March 3, 1891, chap. 565, 26 Stat. at L. 1106, U. S. Comp. Stat. 1901, p. 3406, authors have îhe exciusive ngM b dramatize any of th& works. So, iithe exhibition was w was founded on a dramatizing of Ben Hur, this was infiin@. We am of opinion that Ben Hur was dramatizeâ by what waa done. Whether we consider the purpose of this dause of the statute, or the etymoiogical history and present usages of language, drama may be achieved by adion as well as by speech. Adion cm tell a story, display al1 the most vivid relations between men, and depict every kind of lg~~aiitymtht~d~wutodanmintwhowutheanhordthwork See genm D. Litoumeau, Lo Mtd'auteur & I'~ovLsvef:une cufm et un &oit en evohrùort, (C-e, Quikc: Yvoas Bi41995) a 2l$ Y. Likrge. "La ootioa d'man et le droit d'auteur au cinmu :apequ historique, juridique a said- (1997) 38 C. de D. 831; R-M.Pay, "Copyri& in Motion Picnuft and Otkr Mschmal Coatrivuw;am,5 C.P.R (24 256 it 273E lmSec Stme v. Thus,23 Faisil Cws201 (0.R 1853); Gd- qmnote 17 at 57. lgO See 222 US. 239 (1903) orirmc: Fe

Thus, the infringers were the exhibiton of the film, not those who produced it, But in this case the defendant was the producer. Justice Holmes resolved this

But again, it is said that the defendant did not produce the representations, but merely sold the films to jobbers, and on that ground ought not to be held- In some cases wtiere an ordinary article of commerce is sold nice questions may arise as to the point at which the seller beeomes an mmpliœ in a subsequent illegal use by the buyer. It has been held that mere indifbrent supposition or knowledge on the part of the seller that the buyer of spirituous Iiquor in contemplating such unlawful use is not enough to mnect him with the possible unlawful cansequences (Grave8 v. Johnson, 179 Mass. 53, 88 Am. St. Rep. 355,60 N. E. 383), but that if the sale was made with a view to the ilkgal male, the pria could not be recavered (Graves v. Johnson, 156 Mas$. 211, 15 L.R. A 834, 32 Am. St Rep. 446, 30 N. E. 818). But no such niœties are involved hem. The defendant not only expeded but invoked by advertisement the use of its films for dramatic reproduction of the story. That was the most corispicuous purpose for which they could be used, and the one kr which especially they were made. If the defendant did not contribute to the inftingement, it is im-ble to do so except by taking part in the final ac& It is liable on principlee recognllsd in every part of the IW?

19' Sec ibtiï '92 Jbid Consequently, in 1903, the jurisprudence established copyright protection for works created by the motion picture technique and protected existing woks against cinematographic dramatization. The Amencan legislature seems to have agreed with this interpretation because it took almost a decade More it madifiecl the Copyfight Act to speaiïcally indude motion pictures under its pmtection.'s3

As with photography, motion picture developrnent seems to have been positively affected by the inclusion of the deviœ within the scope of copyright The investrnents made in motion pictures were secured by its inclusion as a copyrighted work The legal security to create a cinematographic production that could not be copied without the copyright owner's permission encouraged producers to invest more money in original produdion and led to higher quaiii movies. Also, the possibility of having exclusive distribution contrads perrnitted investors to increase revenues generated from motion pictures. Thus, those elements increased both investon' interest in motion pictures and motion picture production, leading to more diversity for consumers and to a higher populanty of the medium.

On the other hand, the duty to pay fees to authors raised production costs. The cinematographic adaptation of a popular novel without the copyright owner's permission was no longer possible. Because this right might be acquired on an exclusive basis, it inmsed the rnonetary value of the script. The higher produdion costs of motion pidures probably dirninished the interest of some entrepreneurs in this industry.

" SaAct OfAug, 24, 1912. ch 356, M.L. No. 62-303,37 Seit, (put 1) 4811-90-S& akGddaM, supm note 17 at 243. It was mchided m the Canadian Act in 1921. Sec Copyright Act, supu iwtc 91, ss. 3(1)(e) 8 Z(4. Sec Plso Fox, mpu note 12 at 171. For infiidon rbaut the smlutory protection of cmcmatogmphic production in Unitai States. se Staiing, =pu me182 nt paras. 4.24ff:and for Canada 14tStdngat~lfl4.IIff: The indusion of motion pidures within the $cape of copyright might have compensatecl for the negative effect of pmventing unauthorired cinernatographic adaptations. OvefaIl, copyright seerns ta have had a positive impact on the device's development, Today, motion pidures are one of the most popular types of entertainment in North ~merica.'~Hollywood pmducen invest millions in the production of movies and seIl their exclusive reproduction rights to international distributors. The maciopoly of the tatter and huge marketing promotions have led many consumers to pay the high pnces associated with seeing cinernatographic productions.

It is difficult to examine the history of radb wittiuut first acknowledging the mle that the telegraph played in its development. In 1838, KA. Steinheil of Munich showed that one of the nive wires used in overland telegraphy ald be dispensed with by using an earth ground. He was hopeful that eventually the second win would alsa be diminated and 'suireless" teiegnphy wuld be passible. Twenty-five years later, Mahlon Lmis reafized this dream by transmitting wireless teiegraph mssagea betwieen twa mauntains in Virginia. ln 1872, he received a patent from the United States Government for a fom of wireless communication.'"

In 1898, Guglielmo Marerrni inWMthe wartd's first commercial radio seMa on Raaifin Island, ofl the eaa~tof Ireland, and a year later he equipped ttiree British mhipwiih widem radio.'* The same year, Nalhn B. Stuôôkîkld used the medium to transmit voiœ messages. In 1900, Reginal Fessenden thearized that an ittemator muid generate an electromagnetic wave capable of carrying voice and music. He wed a spark generatar to send the human voiœ a distance of about one mile."'

In 1904, inventor Emt Alexanderson was assigned by the General EMc Company to build a high-fquency machine that would opérate at high speed and produce a cantinuous-~mveemission. After tw pars of expwirnentation, Alexanderson finally constructed a twcMcilawatt, 100,000-cycb machine, which was installed at Fesserideri's station in Brant Rock, ~sssachusetts.'~For the first time, on Christmas Eve 1906, Fessenden's station bmadcast speech and music to surpisecl ship opmtors.lm The pmgramming indudeci a female voice singing a Christmas card, a vidin saIo by Fessenden. and an invitation ta report on the program's mœption. Nine yean later, human voices were braadcast amthe Atlantic Ocean. between Arlington, Virginia and the Eiffel Tower in paris?

On 2 November 1920, Frank Conrad and Donald Little bmdc8st electoral retums fmm 8:OO p.m. uitil after midnig~~'an eWthat gnatly increaed interest in radio techndogy. Dirent radio sîaiims begsn to offer more diirsified content, and it soon becante passible to hear religious services and bedtime st- on the air. In 1921, speakers began to rephheadphones, making radia program ableto mare than one listener at a tirne. Aceessibili was also spurreâ on by falling radio prices rssulting from growing competiüon. By 1922, 537 stations were broadcasting pmgrams, and 100,000 radio sets had beecr rnanuihdured- The cornmercialkation of the radia realiy began men, on 28 August 1922, at 5:15 p.m., WEAF in New York first offered airtime to ad~ertisen?~

In 1923, WEAF, WJAR, and WMAF linked by phone to produœ the first network broad~ast.~~'The rame year, Edwin Armstrong invented the fint "portable" radio as a wedding gift for his wife. In 1924, the AM band was assigned. By then, over 1400 stations were broadcasting and 3 million radio sets were in use in the United States atone. As radios became more cornplex, the radio repair industry developed.

In 1926, an Arnerican court dbded that the Secretary of Commerce had the power to issue Iicenses but rat to regulate broadcasting. At the same time, "Pay Radio" began in Philadelphia. Plad in retail stores, these big radios cost a nickel for 5 minutes of Iistening time.

In 1932. the fint car radios were ii~oduoed. next year, several phonograph companies start labeling records "na Iicensed for radio broadcast" to protect their copyrights. In the eariy 1940Js,jacks on the back of new radios allowed televisions to be plugged in. The FM band gained public interest as noisbfree high fiddity bmdcasting grew?

In 1947, John Bardeen, Waiter Brattain, and William Shokley invented the transistor, allawing radios to stirink in size- Over 800,000 FM receivers were produced. Miniature tubes, rectiiiers, transfomien, and printed circuit boards were now used in the production of meivers. In the 1950as, more than 90 million radio sets were in use in the United States. The marketing of radio transistors also began?

American copyright had already recognized a copyright on public performances for profit." This nght genefated royaities. in the fwm of licensing fees, that were received by the American Society of Composers, Authors, and Publishers (ASCAP)

The introduction of radio interested ASCAP b8cawe of its potential market for licensing." Radio stations wem broadcasting mposersl music without paying fees. Listeners were aMe to enjoy new music -out paying for records or access to performanœs. The new medium wscreating a precedent in shating freely with a large public eapyrighted wrks.

ASCAP engaged in a bath with radio The first step was for the court to legally recogflize that public peribmiances induded bmadcasting sinœ it was for the public and for profit. Thus, ASCAP would be in a position to -ive royalties from radm stations.

To make its point, ASCAP sud Barnberger, a department store that operated and sponclorsd pmgrams on a New Jersey radio station?' Reiying etmsiveiy on the Hedd v. Shenley Supreme Court decision, the District Court ruled th&: Adopting the language of Justice Hdmes [HeM decision], the defendant is not an "ebmosynary institution." A department store is conducteid for profit, which leads us to the very significant fact that the cost of the broadcasüng was charged against the

'O6 Sec B. Chris, "1950-1959 - Coming of A&' (1999) oaliac: Surhg the Ader

Next we have the fad already referred to that the defendant sells radio -ving instruments and accessories. Whether a profit has resulted from such sales is not material in determining the object. It is within the realms of probabilii that many departments of a large store at time show losses rather than profits. Paraphrasing the comments of Justice Holmes, "Whether it pays or not the purpose is profit and that is enough." While the defendant does not bmadcast the sale prices of its wares, or mfer specifcally thereto, it does bmdcast a slogan which appears in al1 of the defendant's printed advertisement "' Judge Lynch concludeci that radio broadcasting by the depaRment store was a public performance for prolit. Respmding to the defendant's argument, he added: The defendant argues that the plainüff stiould not complain of the broadcasting of its song because of the great adverüsing service thereby adedthe copyrighded number. Our own opinion of the possibilities of adverb'sing by radio leads us to the belief mat the broadcasting of a newiy copyrighted musical composition would greaüy enhance the sates of the printed sheet But the copyright owners and the music publishers themselves are perhaps the best judges of aie method of popularizing musical selecüons. There may be various mefhod of bringing them to the attention of music lovers. it rnay be that one type of song is treated differently than a mgof anather type. But, be that as it may, the method, we think, is the privilege of the owner. He has the exdusive ngM to publish and vend, as Wl as to perform.

Thus, American copyright choset to include radio in the definition of public performance. an almady unauthodzd type of production.^'^ lt wru, an easy way to make the nsw medium fall within the smpe of copyright. The decision was not brought to appeaf and, follom'ng this vidory, ASCAP forced broadcasting stations to pay .lor a linse.

"'Se lieben, nrppa note 207. '"~ora~auaâianpaspective. set~ox,mpmaoie ltat40QE At Vie beginning, the fh were relatively low, and the stations agreed to the licensing. But, as radio became more successful, ASCAP used its monopoly to increase aie pria of the licenses, arguing mat music filled the rnajonty of the broadcasting time and that broadcasting musical wrks decreased sales of records and sheet music. The broadcasters disagreed, arguing again that the free advertising tfiey wre gMng incmaseâ saIes of sheet music and records. The discontent of bmadcastefs was escaiaüng. ASCAP'S Iicenses were set to expire on 31 December 1940, and the radio stations were expeeti'ng an exeassive fee augmentation. Thus, the broadcasters decided to compte with ASCAP by ereating their awn iiising sw-

In September 1939, the radio stations announced the creation of Broadcast Music, Inc. (BMt), a wrpamüon ownd exdusively by broadcasters. The new entity had to cmte a catalogue of works it wuld liœnse, a dMcult task sines the rnajotity of artists were atready induded in ASWsrepertory. However, the broaâcasters persevered and concenfrated theirs efforts on Latin Amencan music and new mposers.

From the ôeginning of 1940, radio stations, except krme of aie smaller ones, only broadcast Latin music or music in the puMi domain, like old ciassical music. AdVBCfisers stwd by the bmcbstm in this battle against ASCAP'S monopoly. In autumn 1941, ASCAP capitulated and agreed to new ticenses with more rearonsbie prime? In f&t, ASCAP mba had sem tf'ie impact of radio an sales of their disks and sheet music. They were now eager to be bmadcsst b the public"5

The inabiiii to broadcast "hiCs" eertairily diminished the paputarity af ü18 radio. Popular music, wtkh appealed to young aduits and teenagers, was a large part of radio prograrnming. When such music was no longer available. the younger generation lost same of its enthusiasrn for radio. However, this situation only existed for a short period of time, hmspring 1940 to autumn 1941, and did not prevent the invention of the radio transistor in 1947. As illustrated by the history of radio, in the 1950's radio's popularity was still growing, and an average of two radios for every home was counted in the United states216

Consequently, copyright scarcely affecteci radio's popularity. The right by itself did not have any influence; it was included within the scope of copyright in 1927 without affieding radio's evolution. The real delaying factor was ASCAP's utilkation of the right, which created a minor setback in radio's populanty. After this incident, radio went on to becorne one of the most popular mediums of modem time."'

In the 1940'~~the television broadcasting industry was in its infancy. For the most part, televisiori 0 sWms wre Wngurban areas with relatively low powered transmitters, and viewers could receive satisfactory pictures with rabbit ean. Away from urban centers, the signals weakened considerably, and viewers needed iarger rooftop antennas mounted at heights of 30 to 100 feet abve the mean tariin to receive good mœption?"

Pennsylvania is generally considered as the first region in North America to offer cable W. In the late 1940's. ciüzens of a small town situated in a valley just outside a large city wanted to have access to television technology. The closest city had a new television station but due to the valley, its signals did not readr the tom. fird of the situation, a decision was made to build a tower on the mountain to receive the signals and transport them down the mauntainside to the homes below. The citizens were mrded with exceptional reœption of the broadcast for their new television sets2''

As the number of television mivers increased rapidly and television broadcasters augmenta the quaiii and quantity of their pmgramming, the desire for television senrices intensifiecl in the urban areas. In Oregon, in 1948, Ed Parsons installed some antennas and an amplifier to boost the weak signals he teceiveci. He fan a transmission cable into town and conneded a few of his friends and neighbors to the system, bringing them N signals not norrnally available in that area. Afte~much trial and emr, Parson's improved his system's miiabiiii and expandeci his service area. Soon other cities and towns followed Pamn's example, and the number of cable systems gwrapid~~.~

In Ontario, Canada, ablea1 was intmduced in the early 1950's.~Canadians were intemsted in matking television programs, but no television stations were bmadcasting in Canada. StiII, television sets were beginning to appear in some Canadian homes. In order to receive American signals from Cleveland, high powered antennas were developed to pick up the distant stations' broadcasts. The cabsystm pamW Canadians to join the television en.=

Cablmiioa

The court decided that copyright existed only for a fixed work. As the fatbail games were bmadcast live, there was no fixation of the work. Therefote, Canadian Admiral had no expectation of copyright. The Court also analyred the dation between the cable transmission and the legal concept of public performances. Redifussion, Inc. argued that it was not perforrning the work, only transmitting it, thereby enlarging the audienœ. After examining the jurisprudence, the Coutt reMed the argument, stating: 1 have no hesitation, therebre, in reaching the conclusion that the rediffusion of the film telecasts in question by the defendant in the manner which I have desaibed constiMed a "performance" of the plaintiWs wok.

That, hanaver, daes not condude the matter ; mere performance is not enough ; in order to find that the defendant infnnged the plaintifPs right, 1 must find that the public performance was "in public". The Act does not define "in public1*and it would be undesirable br me to attempt to do so except to state that 1

tU Sec CdmAcbnitul, ~vpnote 112. Sec ahY. Gdmu, Tk CUIRi&: Cm@ adtk W@tsicm of Wwb by Cable (Oxford : ESC. 1990) at 5; W. Füipiuk, The Canadian Admirai Case: CdsLaw of Un6ir COmpaimw (1958) 29 C.P.R 31; D. Moqan, 'Cabi~Compncrs, Copyright and Canadian Culture" (1986) 2 W.J. 69 at 76 N. Tamuo. "La bonne lecnirr dim mauvais ~alamaunistlscarrrd'unbonrrrètoupwquoiIamaasom~i~privisdeniilli~w& doh en rertcvanccs pour Ir ciblodisaiiou de lm oeuvres?" (1991) 4 CS.L 71. Srmol~~mof Rqdties tu Be Cdeciedjiw k Pe- ar k C'mby TeIi?ammüariliar. in Crinrirkr of Mrcsicai or ~~~caiWO& (27 October 1999). Tariû 22 (C.BD.)[hacmpfer TM 22l.Tbt fint Amriam decision dahgwith appeucd ody in 1968. Sec FamgMy v. Unitcd AnisLÎ TekvMon. 392 U.S. 390 (1968) onlinc: FUldtaw

The judge examined other cases and after some analysis canduded that none of them suggested that a performance in a private home where the performance is given, heard, or seen only by members of that household could be ansidered as a public performance:

As to the character of the audierice in homes and apartments to Wich the telecast of the live films were "rediised" by the defendant, there is no evidence whatever except that they wre seen by the defendant's subscribers, presumably only the householders. The character of the audience was ttrerefore a purely domestic one and the performance in each case was not a performance in public. Counsel for the plaintifF, hmver, submits that even if one such "view" in the privacy of the owner's home does not cocrstitute a performanœ in public. He says that from the point of view of the owner, a large number of such performances would constitute an interference with the owner's right of making copies of his work and might cause him to lose part of his potential market I am unab to agree with that submission. I cannot see that even a large number of private perfmances, soldy because of their numbers, can becorne public performances. The charader of the ind~dualaudiences remains exacüy the same; each is private and domestic, and therefam not "in public". Moreover, in teiecasting the films, I think the plaintiff desired to have the tdecast seen by as many -le as were within range and pmmeâ the necessary -viw equipment in order aiat aiey might be informed of its produd; so that I do not think that what was done by the defendant in sa far as the private homes and aparbnents are concemed, interfered with his potential market in any way. It was stated and not denied that the films, induding the commerçial announ- of the plaintfi were redifhW as a m. Therefore, the Court conciuded that the perlonnance in the hanes and apartments of the subscribers of the defendant company wem not pubtic perftmnamsrn

"Ce Ahid, mpm note 112 at 97. f'brd at 101-102 This rppdwas used by the US Suprune Court. See Fm-, spnote 224, Tekpwmp&r- v. CBS, 415 U.S. 390 (I%8); P. MaxweU, "Cabie and Copyright: Thc Victor kioqs ta the Spoils" 13 For many years following this deasion, North AmMcan copyright did not protect authors against the cable transmission of their wrks. Provisions conceming transmission rights were finally included in the American Comht Act of 197p8 and in the Canadian Copyright Act in 1988 when the Canada-Uniteci States FmTmde Agmmnt lmplementation Act was ad~pted.~

Because the new invention was not pfimary induded within the scope of copyright, North American copyright daes not mmto have had a negative influence on caMe development When the legislatutes finally decided to protect authors against this type of transmission, the technology was already fully developed and established, and consumers were aware of the technology and had access ta it

The inflation of prices mat probably follawed the techmiogy's inciusion in the copyright sape had no impact on the alteady welt estabiished industry. Cable technology had already reached the commercial market, and the consumer had corne to depend on it. Nawadays, cable ia still widely used by North ~rnericans.~Conwguentiy. it appetars that North Amen copyright did rot delay cable development.

C.PK (2d) 39at 261; B. Wdc "ET-c Mus Mcdi. ind Copytight m Canada and the U.S." (1989) 1 I.P.T.O.S.269 n 292; WüLcnoq JUPRJ aotc 221 a 128; S.C. aThe Cable Tdevision Provisioiu of the Rcvised Copyi@ Actn in G9.Bush â RH Drcyfius, ais., TMogvrmd C'ght(Mt. Ajr. Marykad: lnwnd Books, 1979) at 275. Pub. Sec Cm& AaqfW6 L. 94-553. . . m~~~ 1~8,~.6~.~serlso~iendrau,~mc224~1;~.~eadrrui"~~~~enaa~murrion Right: A Rality a LM&" (19û9) 4 LP.J. 397 a 408. For igommemi paspsEtM on the issue. sa gnieriiny F. Woadt, Ln cdblo&cdmtion et le duit d'meur :&nmu 1réfrexian (Quibcc, Ministère du communications, 1983) at 1; Fmnr GY1nbrrg ro Teli&m: A P-r an Cqyn@ (Oruw Consuma and Corponte AfFUn Cuuda 1984). For an Andau paspcctivc, scr ibid; J.K. Milia. kT&o CqynoWnghPeminiau: A Gvidc ru kmttng PermLssim m Rrion Pet$wm. ad TitTeIèvisim f'mgnms Yidwqxd~rhcAir (Friday tfrubof: Cm& Inhmion Savices, 1989). " In 1997, 10.4 milIion houses wac xMd by cabte m Caadr. Sec Cd& Teloskm Inrbrffst oaline: Statistics Cd

Chester F. Carlson, who eamed his Bachdor of Sciertw degm in Phpics at the California lnstitute of Technology, invented the tectinalogy. Carlson started his career in 1930 at the eledronics firm FR. Mallory Company, where he woiked fw the patent departmentm Ao a patent analyzer, he was required to prepare paprwork submii to the patent office when regi~t~nginventions and ideas-= Becsus8 the patent office requind multiple copies of al1 documents, he had to copy them Mer by sendiq the patents out to be phatagraphed or by wrib'ng addiional mpies by hand. 60th methods were very expensive and time consuming.

Using his seientific background, Carlson tried to solve mis problem, and so he tumed his attention to photoccrnductivii, a relativdy new process diseoverd by Hunganan physiast Paul Selenyi. It seems that when light strikes the surface of certain materials, its conductivity inmases. Carlson anticipated that if the image of an original photograph or document was projected ont0 a photoconduetive surface, "current wuld only flow in the amas that Iight hit upon (and not in the areas of darkness - the print)il . 234

Carlson's first lab was set up in tfie kitchen of his apartment in Jackson Heights, Queens in New York City. He applied for his first patent in ûctober 1937.~ Later, his laboratory was mwed to a mmin the back of a beauty salon in Astoria, Queens, and he hired an unemployed Geman physiast named Otto Komei to help him. It is in this laboratory that the first photocopy was made: So, one day Otto took a zinc plate and covered it with a coating of freshly prepared batch of suffur. He then wrote the words "10- 22-38 Astoria" on to a rnicmcupe slide in lndia ink. The room was darkened. The suifur was nibbed with a handkerchief to give it a charge. The sliâe was then plaœd on top of the sulfur and placed under a bright Iight for a few seconds. The slide was then removed and the suifur surface was oovered with lycopodium powder (the waxy spores hmclubmoss),

With one giant breath of air, the lycopodium was blown off of the suhr surface. And there it was - an almost exact mimr image that said - you guessed if - "10-22-38 Astana". The real tri& was in preserving the image. Carlson twk wax paper and heated it over the remaining powder. The wax mled amund the spores and was then peeM away- 'Y

The process was not yet cornpiete, but at Ieast Carlson's theory was confimed. Because continuing the researeh required more money, Carlson began looking for investon. Surprisingly, the new technology did not interest anyone. Between 1939 and 1944, Carlson was tumed down by more than twenty large corporations, induding IBM, Kodak, General Uectric, RCA, and the ~ike.~~

Ibid; SiIvermm svpro note 232. Sa ibid =md "Scc ibid f inally, in 1944, he found a partner. The Battelle Mernorial Insütuw, a nonprofit research organization, concluded a royalty-sharing arrangement with ~arlson.~ Satteite assigned the projecl to Rdand M. Schaffert, a research physicist and a former printer. Because it was during the Seand Worid War, American researchers and mney were mpied with defense efforts. Thetefore, Schaffert was the only person working on this proie3 for almost a year. At the end of the war, Battelle prwided Waffert with a small group of assistants to impmve the pro ces^.^^

Schafïert's teem made sevefat improvements to photocopy techndogy. First, they developed a new photmnductive plate to replace the sulfur plate that Carlson had used. The new plate was covered mth Wenium, a much better photocondudor. They also created a coron%wire, which applied the eleçtrostatic charge to the plate and transfemd pawder from the plate to the paper.

The most important irnprovement made by the tearn was the use of dry ink: Carlson's use of lycopodium powder and other materials produced a somewhat Murry image. Battelle researchen substituted a fine iron powbr for dry ink and mixed in ammonium chioride satt and a plastic m-al. The ammonium chloride is induded to dean up the image (i has the same charge as the metal plate, so in the areas where there is low charge (areas of no imaget), the iron particles stick to the salt and not to the plate. The plastic material is designed to meR when tieated and fuses the iron partides to the papér. They celled this rn-al tonw, sinœ one can very simpîy use diirent tones of developer to produce any color desired (three superimposed colors could be used 10 pmduco full color copies)?

In 1947, Wlesigned a Iieensing agreement with a smali compariy known as Habid. At the time, Haloid was rnanufkturing photographie proâucts and was

Sec Silvunm, ibtd; Hoit, -a note 23 1. Sec Silvamm. ibid. UO~ looking for a new tectinology to develop- In 1948, th8 new partners publicly demonstrated the electro-photography device, and that same year, they aiso rnarketed the 6rst This new pmdud was rot a commercial success. The whale process was inefficient and was not practical when making many copies. Fourteen different steps had ta be completed by the user, and each copy took at least 45 seconds to be produced.

To irnprove the product, Haloid replaeed the Mt plate system with a simpler one with rotating drums. The company also came up with a better name ftir the proœss. Because ektmphologtaphy was not a very catchy name, it was changed to xemgmphy, which stems from the Greek words xems for ''dw and gmpb(br 'rwn~*ng"~~Haloid named the fimt genwation of mis photocopier the XemX Model A.

The first commercialiy successful, fully autornated photocopier was produced in 1959. It was named "Mode1 914" because it could handle paper up to 9" x 14in ske. By the end of 1W1. Haloid. now na- XWOX," had ndy10 million in revenue.

This new technology was particularly usefui to libraries wishing to copy artides from specialited joumals. For example, the United States govemment's National Library of Medicine was phabapying tens of thousands of artides from swalked medical journais aedi yemr wiîhvithwt payment and pmnissioc~~~For Williams Passano, president of Williams a Wtlkins, one of the more important medical journal edîîrs, it was unacceptable. He decided to make it his personal

'" Sce ibüi '" In 1958, Haloid cfianeed its nunc to Hiloid Xcm~and theD in 1961 to Xaon Ssc ibid; Onfine Frpcfbmk H,istur~calHijgMghts onik Xaos Corporation

As we have seen, copyright law has been regulariy extended to indude new technologies. Hawever, the photocopier introduced a nerw problem. In mntrast to the radio. pn'nting press, or piano mil, it was aimat impossible to cantrol the saurce of the copy as photocopies were being made in ofkm and libraries around the world." and thenfore, it uns alrnwt impossible ta Ibnse or contml the copy making. Furttiermore, the royaîty per copy was low and thus it was difiicuit to jusofy invading the privacy of weryone who migM mske

In 1968, Williams & Wilkins initiated a lawsuit against the National Library of Wicim and the Nationai Institute of ~ealh~~kause the gmment was involved, the action was brougM foward in the Court of Claims. James F. Davis was the mmissioner assignecl to the case. The lawyer of Williams 8 Wilkins, Atan Latman, divided the lawsuit into two. In the first part, he attempted to demonstrate the copyright infringement, while in the second part he tned to demonstrate the damage. This sttategy was adopted to avoid having to prove the mdpart The govemmmt, king coWrigM liability, would probably setlie for having a license to copy al1 the Wiliiims & Wilkins' publications.

The debate eentered around the fair use issue. Sinœ most of the copies wwe made one at the time, the question was: Can the photdcllpying of a single article be defined as copyright infnngementir In 1935, before the invention of the

"Set tbM U6 sec RC. barp p. *L- tht eh~foeopia"(1980) 62 CP.L1% a 1%; V. ~hbui* L~S WW~~C~PIX moyens de repmduction, pipias. sonores, QidiovWcis ' (1986) 46 R du B. 739 a 752; Kmg Restarth k.."Summay of Librry Pbotocapyiag in tbe Udd Sata" in G.P. Bwh & REf. Dryfum. ais.. Teclmdogy md Cwght (ML Airy, bfaryhk Lomond Be1979) 355; M ijne B D. Wood, "Ttie E& ofa WpScdt Fhotmpyiq Scrviœ on lorunil Sllanin G.P. Bush & RH Drryfius. eds. Tecladogv d Cqyrr-ghf (Mt. Airy, Mzuylrad: LodBooh 1979) 375; E Vaa Toagcrm, The Effecto€a~ePbor~SancconJdSaM"'nG.P.Bush& RH. ûmy€h, ah., TècMogy umd C~~J.TQ@(Mt Aay. Maqhk Ldmaad Baah 1979) 387. "~œ~o1dst~m,~notc17at81. w~ccibidat82 photocopier, libraries and publistiing mpanhhad canduded the Gentlemen's Agmemnt abut Vie rigM to make copies. This agreement stated that: so long as a library made no pmfd Rom ihe praetice, it could make a single pbtographic reproduction of copyrighted maMa1 for a scholar who stated in wnüng that he wanted it in lieu of Imn of such publiatbn or in place of manual transcription and solely for the purpose of researchzN

Photographing documents was expensive and time wnsuming, and so publishem had signed the Agreement But, with photocopying, the teality had change&

Because the fair use docbine is bas& on custom, this Agreement was a mal problem for Williams & Wilkins. In addition to the Gentlemen's Agmment, the Public Health Service had included in its poli an express provision stating that, beginning on t July 1965, the govemment had a non-8xclusive royalty-free Iicense to copy or use publications in other ways as a remît of a Pubiic Health Senice ~rant.~This pmisbn aWed Me rnajonty of articles published in Williams & Wilkins' joumals.

In 1972, Ccrnmicisioner James Davis decided in fevor of the publishfl' and febîed the Fair use theory: Tt18 pho&@î are exact duplikates of the onginal artides ; and serve to diminish plaintif?$ potential marlset for the original artides since aie phatacapies are made at the request of, and Ibr the benefit of, the very persans who eonstitutes plainüff's marketiu This decision, sixly-three pages in length, examined al1 the aspects of the case. It was, however, appealed.

Denying the Davis decision. libraries nfused to pay royalty fees? Instead, they decided not to renew thein subscriptions to Williams & Wilkins' joumals. Sinœ the National Library of Mediine's decision net to mew it subscription meant not being indexed in the Index Medicus, the publisher had to agree to the iibraries' demands. In ûctober 1972, it sent a letter to the libraries stating that it was withdrawing its daim to royalty fe8sm

In 1973, Judge Oscar Davis of the Court of Claim expressed the coues de~ision.~~~He reverseâ Commissioner Davis' decision, affirming : First, plaintiff has not in ouf view shown, and there is inadequate reason to believe, that it is being or will be hanned substantially by these specific pradces of NIH and NLM; second, we are convinced that medicine and medical research will be injured by holding these parücolar practices to be a infringement; third, since the probbm of accommodating the interests of science with those of the publishers (and authors) calls fundamentally for legislative solution or guidance, which was not yet been given, we should not, during the penod bdhcongressional action is forthmin& plaœ such a risk of hann upon scienœ and medicine.

Afraid of the impact of this decision on photocopying pmctîœ, other publishers decided to join Williams & Wilkins in its efforts. They created a fund and presented an appeal do the U.S. Supreme COUR In May 1974, the US Supreme Court agreed to hear aie appeal in WIisms and Wilkins v. The United States.

Zn For a bmer undemaadhg of th hariad position, se L üoqk "LibrPnra+ Copyright, ad fechnology: The Grawtb ofAcchiml in tk Quiet Rof&nn (1991) 6 CPJ. 377. ZH Sec Goldstciu, svpm note 17 at 104. SaCyiifiamsand Wilkins v. îkLhrt?edSmq 487 F.2d 1345 (1974). 256 ibid at 348. In 1975, after having hearing arguments for both sides, the highly antiupated Supreme Court decision was made public. it was a one-line decision: "The judgment is afirmed by an equally divideci ~curt.''~This simpk lino was the end of a seven-year saga.

Following this decision, on 19 October 1976, the Arnerican legislature passed a bill modifying the CopylipM Ad. 2s This modiion included in the law a specific exception to copyright infringement for photocopies. It detennined the conditions of this exception. such as the number of copies penitted. 254

Photocopiefs became a commercial success in 1959. However, the first definitive reaction by a legal body to the technology took plaœ sucteen years later, in 1975, with the American Supreme Court's decision. In those years, even though some uncertainties about the legal use of the device existed, the general public and libraries continued to use the photocopier. This interest in the deviœ pemitted the technology to be widely distributeci, and the commercial success it enwuntered permitteci Xemx to impmve its machines.=

Sec Williams mid midkns v. 7ne UmtedSIP1ES, 420 U.S. 376 at 376 (1979. B. Fry, H Whitt & E Johnson, 'Scholariy and Reseirch Sourds: Survey of Publisha Recàces and Ruent Attitudes on Autfiorized IodArticle Co- uui Liceasmg' m G-P.Bush & RH De&, TahndogV and Cmghr (Mt.Airy, Maryiand: Lomond Books, 1979) 355. Supnr note 228 at titie ï, $101. 19 Octokr 1976; Dulins, ibki at 11% Gd&& supm aote 17 at !43. For di&rea w8gutions on how to deaI with photocopy tahnology, sec Shirp mpnote 246 at 2CW S. Brrya. "Ttw Uneasy Case fOt Copyi@: A Stuây of Copyright in Books, Photaapies. and Cornputers Rograms* (1970) 84 Ham. L. Rev. 281 at 329; L.B. Hdprin, Cwght adPhormqying Pqmson Ptoblemr ami Sdirtionq Drragnfi a CleclneclnnshovJe,da Bibliogrqdiy (&himorr: Coiitge and Liirary and inf9don Services Univasity of MarSand, 1977). 239 No particuiar disposition was made in Canada concaMag the use of photocopiers as long as it was wRhin the tirnits of "fur usew. For a Canadian paspaive on the photoGopia problan, see V-NabhPn, "Les nouveaux moyens de qnuduction, papiers, somrrs, audiovisuds " (1986) 46 R du B. 739 m 752ff; V. Nabhan "La photocopie a le dmii d'auteur au Cd"(1978) 19 C. de D. 881; M Paré Ta reproduction de pages ou de parties de journaux ou autres p&ioQ'ques a la loi du droit d'un- du Canadaa (1983) 1 RC.D.A 7; D. M Camema & S. K DimodS "Copyright adCo- Michiats* (1987) 4 Can Comp. L. Rep. 186; S. Martin Ta copie privée" (1989) 2 C91 27, D. Darlmg, "Rcproenphy Cokivcs in Canida: ïk Impact on Educatiod Usew(1992) 9 C.WR 104- 260 Sec xemr Raeamh ad fi- oaIinr. Xaox

In the 1990's, photocopiers continue to be useful to students, scholars, and professionals. The deviœ has beeil constantly developed to be faster and easier to use." Wth history behind us, it is possible to affirm that copyright did not delay the tectinological development of the photocopier.

3.8. Wdeo Tape Recorder The first known patent for the use of magnetic recording to store pidures was granted in the late 19201s, by the British patent office, to Boris Riicheouluff of London. This pidure mcorder was based on a machine developed in Denmark many yean earlier." Amund the rame tirne, German engincm Eduard Schueller, working in Hamburg for Telefunken, filed for a patent avwing a tiNo- headed helial recorder." Neither technique fuffilled its potential. and the evolution of magnetic pidure recording only happened thirty yean later.

In 1950, the newiy established electronic division of Crosby Enterprises was Qing to develop a magnetic N recorder. They pmduced some prototype recorders mat uwd hed hidr, and high tape spwds? Meanuihiie, RCA's engineers were working on a simiiar project Their efforts resulted in a longitudinal, high speed videotape recorder (WR) that duplicated monochrome and color pictures. It was presented publicly in 1953. RCA felt confident enough with this advanced color machine to make some program dmnstrations at NEC in late 1955. It was even used for about two minutes on the air.=

The B8C also saw the potential advantages of a visual magnetic recorder. The research, begun in 1952, led to the creation of the Vision Electronic Recording Apparatus (VERA).~This apparatus was pub difbrent from its contemporaries, and many of the developments achieved in this recorder served as departure points for the subsequent helical videotapes that were developed.

However, the commercial beginnings of video recording technology occurred on 14 April 1956 when Ampex demonstrated its videotape recorder. At aie National Association of Radio and Television Broadcasten (NAB) Convention in Chicago, Ampex pmnted the fint practical quadraplex m~:~

Lodge made his prepared presentation with what seerned like a pregnant pause at the end. Suddenly, the monitors in the room were showing what must have seemed to the audience as an impossibiiii, for they wre looking at an instant playback of the Lodge speech, with an image darity indisünguishable ftom the original they had seen a few minutes earlier. There was a hushed silenœ as those in the room tried to relate this assauit on their senses, with aieir priar knawledge that TV images couid not be immediately repested by any knm device. Cheers and applause then broke out.

There was no available monitor for the Ampex team behind the curtain to check the playback befare punching it up on the TV screens in the Ocher part of the room. As a resuit, they had to operate on the blind faiih that everything was warking well. That short silenœ at the beginning of the playbaclr seemed like an etemity to Ginsburg, Dalby, Anderson and Pfost

The station executives crowded in around the VTR, trapping the operating personnel against the machine, Mile they pushed, el- and stood on chairs to get a glimpse of this latest video marvel. The VTR crew, who just a few minutes eariier were holding their bmth in the fond hope that his hastily assembled contraption would perform on cue, were now busily answering questions from excited inteqators who were naturally cunous abcut performance. pria and availability.'

The historic first bmadcast via videotape was the CBS airing of the Douglas Edward and the News pragram on 30 November 1956 hmNew York. CBS Television City in Hollywood replayed the broadcast three hours after it was received on the West Coast. However, confidence at CES in the new machines was not al1 that high, and for a month the network ran a backup kinescope in case of a breakdown.

By 1957 many -ans had reCBjVed their first vidm recorders, but it twk a while for the deviœ to overtake the kinescope because stations did not completely trust the new technology, and most engineers were unfarniliar with its complicated circuits. Eady video riecorden suffered from a number of problems. "Skewing, scalioping, venetian blind eniea and incortect quadrature" became common tems among the new brsd of vide0 engineeo." As the industry became awan of the problems, solutions wmdevelopeâ, one at a time.

During the 1958 NA6 Conference, Ampex unveiled a modified VR-1000 that pmduced color pchiresresn' RCA Wbmd later thaï year with a modiCed videotape recorder that permitted color recording. Neither recorder, however, provided very good cdor reproduction. Hm,in 1958, CM aired the first totaiîy VTR-producad pmgram, Playhouse 90.~

In 1963, Sony identifid a new opportunity in the home consumer market and introduced the first home videotape. Six yean later, the company intmduœd the

TF Reading Tedinology,sirpnr note 263. * Ibid Set ibid first videocass~tte,the "%-inch UMatic one-hour tape1'? For the fimt tirne. Sony allowed other manufacturen to seIl machines that could play the cassette, and thus succeeded in establishing a world standard far the %-inch vide~cassette.~~By 1972, the videocasette formats wefe sold by RCA, Sony, Arnpex, and Avco, which al1 sought to develop a new consumer market for home videa cassettes recorders ()CR)."

Still leading the home videotape market, Sony introduced, in 1975, the Betamax consumer VCR console only for $2295 and a one-hour '%inch tape cassette for 515.95." The mpany attempted to mate a standardized format by gettüng seven other companies to agree to produce machines that would play 6eta ca~~8ttes.Z"

The following year, JVC inttoduced in Japan the VHS format videotape for ~885.~In mponse to this new pmdud. Sony introduced a Baamax deck for $1300 and began agg-ve advertising, daiming that it could "actually videotape something off one channei while you'te watching another Channel" and that you could "build a library of your favorite showslm . 27B

In 1977, RCA annwnced it waild seIl VHS vidso mcordws with Chour tapes21 Two yean later, Sony introduced Betascan in April, which alloHled a visiMe pictun Mile fast-f~wardin~;~'in 1983. it manufactured the &ta Hi-Fi VCR L with hiahqualii FM Sound? Sony introduced an 8-mm format in April1985. The same year, the VHS group, led by JVC, brought out a compact version of the VHS recorder, known as WS- C. that recordecl for 20 minutes." Finally, in 1986, Sony lost the batüe of the formats and withdraw the Betarnax frorn the market.2w At that time, North Americans possessed twentpeight percent (28%) of the videotapes distributed w~rldwide.~~

Sony's aggressive marketing of home videotapes in the 1970's disturbed the owners of copyrighted television programs. Advertisements promoting the copying of their work did not go unnotlced. Before videotape recording became commonplace and despite the Supreme Court% decision in WIIiams and Wilkins, Universal Studios and Wak Disney decided to file a lawsuit against the Betamax producer.

They bmught forward an action in th% Federal District Court?= alleging that videotape consumers had been reccrrding copyrighted works exhibited on commercially sponsored television, thereby inftinging their copyrights. They alleged that Sony was Iiable kr the copyright infringement because it marketed the video cassette recorden. Copyright owners sougM monetary damages, an equitable aecounting of proth, and an injunction against the manufaduring and marketing of VTRs. The District Qurt denied al these demands, holding that noncommercial home rewrding of malerial bmadcast over the public aimves was a fair use of capyrighted works and did not constitute copyright

"See Schomhar, supra note 274. z84 See ibid sec D. ~wnns.k~~ion& ~set&~en~t d'au@ur(~e~ève: Librairie Droz, 1986) a! 18. m6 See Cbnw1~11Cify Snr

The Court of Appeals for the Ninth Circuit reversed the DiMd Court's judgmentVzM holding that Sony was liable kr mnhibutory infnngement It ordered the District Court to fashion an appropriate reliefm

The action was bmught bnore the Supreme Court," whid rendered its decision on 7 January 1984. Afkr much disc~ssion,~'and with a majonty of only five, the Supreme Court ddared that the sale of the VTR's to the genefal public did not constitute contributory infnngement of Wait Disney or Universal Studio's copyrights:

(a) The pmbdion giwn to copyrights is whdly statutary, and, in a case like this, in which Congress has not plainly marked the cours8 10 be fdlowed by the judiciary, th& Court must be cimmspect in wnstruing the sape of rights creafed by a statute that never amternpiated such a calculus of intefests. Any individual may teproâme a eopyrighted work for a "fair use"; the copyright mer does not passess the exdusive nght to such a us8. (b) Kalem Co. v. Harper Brathen does not support respondents' novel theory that supplying the "means" to accamplish an inffinging aeüvity and encwmging mat Wity thrwgh advertisement are sunicient to establish liabiiity kr copyright infringemerit This case does not faIl in the category of those in which it is maniliestly just to impose vicarious liabiiity becam the "contributoff infn'nger was in a position to mtrol the use of copyrighted wohby athm and had authoriz8d the use without permission fmm the eapyfight m. Hem, the oniy contact between petitioners and the uwn of the VTRs mrreâ at the moment of sale. And aiere is no precadent far imp'ng vicarious

See Sony Disnier Cm.ibid zn Sec Univerd City Sev. Sary Corp. ofArnrericcr. 659 F.2d 963 (eCir- 198 1). U9~~~~~u~~vidia~~t~~~uitciu:~~~dcvrnt~~aurt~~~~ (1983) 14 RGD. 449. a0 Sa UnWd City Sadm v. Sony Corp. of ARlQrica. 464 U.S, 417 (1984) aalnie: FuiciLaw -4ütp:fhwww.findiiw.coml~nrpnme.W(date seccJscd: 4 Sepember 1999) ) fbaanattcr Sonyl. "'Numer~1~~onswaeùeidamongtkhisaccs.S&GoIdacin,arpmnote17at t4W. liability on the theory that petitioners sold the VTR's wiVi constructive knowfedge that their customers might use the equipment to make unauthorited copies of copyrighted material. The sale of copying equipment, like the sale of other artides of commerce, does not eonstiMe contributory infn'ngement if the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of wbstantial noninfnnging uses. (c) The record and the District Court's findings show (1) that there is a anifkant likeiihood that substantial nurnbers of wpynght holders who Iicense their works for broadcast on free television wuld not objed to having theif bmdcast time-strfied by private viewers (Le., recorded at a time when the VTR owner cannot view the broadcast so that it cm be watched at a later time); and (2) that then s no likelihood that time-shifting would cause nonminimal harm to the patentid market for, or the value of, respondents' mpyrighted works. The VTR's am therefon capble of substantial noninfnnging uses. Private, nommercial timeshifting in the home satisfies this standard of noriinfnnging uses both because respondents have no right to prevent other copyright hoiders fm authorking such time shifting for their pmgrams, and because üie District CourYs findings reveal that even the unauthorid home timeshifting of respondentsdpmgrams is lagiomate fait use?

Judge Stevens, wnting brthe maprity, first lmked at the findings of both parties concerning the use and effea of the Betamax, The copyright mersand Say had wnducted sunreys of the way the Betamax machine was used by ownm during a sample pemd in 1978. 60th survsys showed that the primry use of the machine for most owners was "tirne-shiRingU and that programs were later erased. The time-shifting practlce embM viewers to see pmgrams they otheMnse would have missed because they were nat at home, were ocaipied with other tasks, or wem viewing a pragram on another Mon. HOWBW~,both surveys also shawed that a substantial number of interviewees had accumulated liùrarh of tapes. Sony's suwal= indicated that over 80% of the intemiewees watched at letast as much regular tdevision as they had before owning a 8etamax Walt Disney and Univemal Studios offèmd no eviâmce of decreased television viewing by 8etamax owners- Ah, Sony intraduced considerable evidence of television programs that couid be copied without objection from any copyright holder, with special emphasis on sports, mligious. and educaüonal programming. lts survey indiited that 7.3% of al1 Betamax use was to record sports events, and npresentatives of professimal baseball, football, basketball, and hockey testified that they had no abjection to the recarding of their televised events for home use.

Universal Studios and Wait Disney Productions ofbred testirnonies of experts concerning the Mure impact of the unrestricted sale of VTR's on the commercial value of Meir copyrights. Howevef, based on the District Court's findings, the Supreme Court eonduded that they had failed to pmve any Iikelihd of Mure harm fmthe use of M's ïor timeshlng."

The Judge then discussed the respandents' arguments on the contributory

The tmJ resporidents in this case do not seek reiief against the Bgtamax users who have allegedly infringed their myrights. As was made clear by their own evidac8, aie capying of the respondents' programs represents a small port*on of the total use of VTR's. It is, hawever, the taping of respondents' own uapyrighted programs that provides them with standing to charge Sony with contributory infn'ngement 10 prevail, they have the burdm of pmving th8t users of the Betamax have infnnged th& copyrights and that Sony should be Md responsible for that infringernerit"

Stating that the Copmht Ad daes not expmaly rerider anyme IiaMe for an infnngement committed by another, the Cwrt debated the application of the Kalem Co.v. Harpsr Brothem case:" Such cireumstences ufere plainiy present in Kalem Co. v. Harper Brothers, the mgM decision of mis Court on which respondents place aieir principal relianœ. In Kalem, the Court held that the producer of an unauthorized film dramatization of the copyrighted book Ben Hur was liaMe for his sale of the motion picture to jobbers, who in tum arranged for the commercial exhibition of the film- Justice Holmes, wtib'ng for the Court, explained: "The defendant not only expeded but invoked by advertisement the use of its films for drarnaüc reprodudion of the story. That was the most conspicuous purpose for which they could be used, and the one for which especially they were made. If the defendant did not contribute to the inftïngement it is impossible to do so exœpt by taking part in the final act It is liable on principles recognized in evqprt of the law."

Walt Disney and Universal Studios argued mat Kakm pribpased that supplying the "means" to accomplish an infringing activity and encouraging that activity thmugh advertisement are suffisent to estaMiah liability for copyright infringement. The Court disagreed with them. stating that it was an argument resting "on a grosr genmiiition thot cannot withstand -ny"? The Court observed that the producer in Kahdid not merely pmvide the "means" to accomplish an infn'nging adivity, he had supplied the work itself, but in a new medium of expression. However, Smy âii not supply Betamax consumers with Universal Studios and Wait Dis*$ works, they did that themsdves. Sony only supplied a piece of equipment generally capable of copying the entire range of programs that may be televised: aKlso that are uncapyrighted, those that are copyrighted but may be copied without the objedion of the copyright holder, and those that the apyright holder unxild prefer rtot ta have capied. Because it was possible ta use the Betamax ta make auaiarirsd or unauthorid copies of copyrighted works, the Court held that the range of its potential use was much braader than the pmticular inïringing use of the film Ben Hur involved in Kah. Therefore, the Court conduded that the Kakm case did not support Universal Studios and Walt Disney's theory of liability."

r)6 Sony. supra note 290. 291 See ibid In conduding this point, the Court Wed that if vicarious Iiability was to be imposed on Sony in this case, it must rest on the fad that it had çold equipment with the knowledge that wstm wuld use that equipment to mske unautharized copies of copyrighted material. &cause then was no precedent in copyright law for the imposition of vicarious liability on such a theory, the Court refused Univemal Studios and Walt Disney's argument '

The Court finaliy stated that the sale of copying equipment, tike the sale of other articles of commerce, did not constitute contributory infn'ngement if the pmduct was merely capable of substantial noninfnnging uses. In the case of the Betamax, Judge Stevens declared that the sale of the produd did not canstitute mpyn'ght infn'ngernent because the noncommercial tirneahifhg practice satisfied this standard: It does so both (A) because tespandents have no right to preverit other copyright holders hem authariu'ng it for their programs, and (B) 4ecause the District CourYs fadual findings mlthat even the unauthonad home timshifting of respondents' pmgrams is legitimete fair use.

The Court decided mat Universal Studios and Wak Disney had no right to prevent other copyright holders frwn authorizing îhe tirne-shifting practiœ for their programs. Evm if they did own a large inventory of valuab copydghCs, in the total spednim of teievision programming their comibid market sham was wll below 10%. Momver, the District Court hdd thet tirne-shifting might enlarge the total viewing audieme and that there were many important producers of and local tekvision programs who found nothing objedioriabia about it.

Judge Sbveris also dam that unauttiorired timeshiftit~gby Wmax awrrers over the resporrderits' TV shws was fair use. Because timeshifting expsnded public amto free tetevision programs, it yidded societal benefits. ln the Court's point of view, this prernise supparted an interpretation of the "fair use" concept that required the copyright holder to demonstrate same likelihood of ham before he could condemn a private act of time-shifting as a violation of federal law. The Supreme Court cancluded that Sony had demonstrated a signifiant likelihood that a substantial number of copyright holdets Iicensing their works for bmdcast on television would not object to having their programs time-shifted by private viewers and that the respondents had failed to prove that time-shifting would cause any likelihoad of non-minimal harm ta the potential market of their copyrighted works. Based on this assomption, Judge Stevens decided that the Betarnax was capable of substantial noninfnnging uses and that Sony's sale of such equipment could not constitute contributory infringemant of copyright.-

Following this decision, the American legislature decided not to regulate the VTR."' and Canadian copyright adopted the same attitude? ThefefO~. follctwing the spirit of the Wlkins & Wilkins decision, North American copyright decided not to inciude videotape technology within its scope. This decision illustrated a change of attitude in the treatrnent given to Mure technologies.

Because the American Supreme Court and both the Canadian and Arnerican legisMures decided not to regulate the use and distributh of VTRs on a copyright basis, it can be afhed that North American copyright did not delay

'99 Ibid 3M For ninhcr commcm on bis ataiir, sec [àvies & Huq, supra mte 293 at 206-20T Goldstein supra nate 17 at 144-157; V. Nabhan *Quelques aspects des probltws juridiques posis par la vidéoproduction: Panaire üaamf (1981) 108 R L D.A 25; Mutin, supra note 258 at 491f; CD. Van Dyck,m "Past- Forward: A Caaadian Perspective on the &tamsx Controvasy" (1984) 16 Onawa L. Rev. 506. Frdin Pierce Law Center!~5hmh BiemIPndInleIIernsol Rqmy S'em Majw Pm6I.ConfCrence: Digitai Technalog).cpd Cqyight: A itaecrt w A CWImgc? (1999) 39 J. L. & Tech 291 at 305. 'O' Sec ibid Sec TiHopb'm Imonrrdiimut v. WdI 8t Re&@ Mty, (19841 5 W.W.R 555 (B.C. SC); B.K Green "Copyight in Vidcotape: TiHopkins i"rmti~tv. Wdt & Re&@ Reahy" (1989 1 LP.J. 180; S. W.L. Hryhunt. "Copyright md tk Copyhg Mrhllic: the AdCue" (1986) Can Bus* L.J. 331; S. Shanel & W. Krasüovsky, in2F Busines of Mtlsic (New Yok BiIIboard Publication, 1985) ai 144; S. Bdi, "Wü1 &tamox k Bwai?"in G.P. Bush â RH. Drrynus, eds., Teciadogy rad Ce@ (Mt Airy, Mary&nd: Lomoad Book 1979) 3 17. the development of videotape recorden. If %ny finally stopped pducing the Betamax, it is only because the Company lost its commercial battle with the VCR format3w The videotape recorder has been constantly improved, and nawadays, the device is still widely used in both Canada and the United tat tes.^

3.9. Digitai Audo Tape The next technology to challenge copyright protection was the Digital Audio Tape (DAT). The study of its evolution pmits us to look at the history of the music industry.

In 1898, Valdemar Poulsen, a Gman, invented the first magnetic tape recorder. The deviœ used a steel wire to record magnetised pulses resulting from encoding sound waves. lmprovements to this techndogy produced the magnetic tape, which was a thin plastic tape coated on one side with magnetic mide. Sound was recordeci by a microphone that transfomied =und waves to small eledrical pulses. The magnetic tape was drawn over a recording head that registered a signal in the magnetic oxide. This signal could be heard by passing the tape over a playback head that converteci the signal to eledrical pulses, which were electn*cally amplified and transbrmed into sound waves by Ioud speakers. The quality of the sound reeording depended on the width of the tape and on the speed at which it passed over the heads?

It was not until afkWorld War II that North Americans becarne inbmed in this new technology. The first major Amencan carporatiin to develop high quaiii magnetic tapes was the 3M Company (Minnesota Mining and Manufachring). Its engineers produced professional tape recorders, which becarne the alternative to direct recorâing onto wax or acetate.=

An important innovation of the new medium was its reclsabiiii. Never before had the possibility of using the same materiel for production of different recordings been availabfe. Momver, the mrding quality of thet tape matched and surpassed that of the old direct recording process. Due to those advantages. high fiddity magnetic tapes became the industry standard?'

The next step was to enter the consumer market. In 1964, Phillips marketed the first encaseci audio tapes, and within a féw years eight-tradr caRridges emerged as the front-nrnner in a market that included four-tracks and cassettes. The commercial battle was won by the "cumpact cassette"." This now ammon fom of magnetic tape enciosed the tape bobbins in a fixed housing, making it portable. The populanty of the deviœ was based on its maIl sin,even through the small width of the tape reduced the ncording qua~it~.~In 1969. Dolby Noise Redudion answered that praMem by reducing the unpleasant hiss that was heard when listming to such tapes."*

In 1987."' Sany introâuœd the Oigitsl Audio Tape (DAT) and irr recorder to the semi-professional and prafessiial recording studio market. The technology was a combination of the hdical-scan recording technology used far videa signais and the latest audio reccirding rnethods. The deviœ, which offered 3 hours of digital sound on a tape half the size of an analog cassette tape, did not use data compression. Therefore, as with compact disk technology, the entirety of the signal was retained. The analogue sound waves were sampled at a high frequency and converted to digital data, which were then stored and manipulated by mmputers312Once in digital fmat the data cwld be stored more reliably on magnetic tape. The digital signal was then converted back to an analogue signal to pmduce the vinyl master disc."'

The quali of the digital tape fmat was such mat professional studios very quickly adopted it and made it the digital standard for recording. In 1992, 80% of recording studios were using this type of machine."" Momver, DAT features permitted indexing, faciiitating the listener to locate any place on the tape, and extremely fast rewinding, which permittecl the listener to easily access any part of the rec~rdin~."~

An important charactefistic of the DAT was its capabilii to make copies. Cantrary to the compact disk, it allowed consumers to produœ copies having a crystalline sound quality and, unlike analog tapes, the user muld make copies of copies without losing the high qualii sound.

With the imminent introduction of the technology to home consurners, record companies fead that flawless copies would decrease sales of their products. In North America, the Recording Indu- Association of Amena (RIAA)"~ws

'" For more iaformafïm on the diniwaya of convercing hmanilague CO digitd, sec Staüng, qmr note 182 at 36E For a look at problcms cree!ed by the manipihion of digiul sound, set U. Dcjardius, Téchnntilloaaage du son ai disitJes a le droit d'auteur au Camdr" (1991) 3 C.P.1 205; MG. QuaiL "Digital Samplcrs: Can Cap-ght Rotect Music hmthe Numûers Gune?" (1991) 7 I.P.J. 39; I.-C. nie DewIqmtent of Digitai Tecmiqirps: A Tinnriig Point* UecWnrC MVplc? (paris IRCAM, 1978). ''' Sec "DATWorid", pro note 3 1 1. ''' Sce History of hd supa note 305. "' Set "DAT Worid*, supm note 3 II. In f 999, the RIAA cepcesemai mughly imü a dozen major record co~*esand titc artifu on thàr labels tbat comrol appro.X;mady ninety percent ofthe disuiion of dedmwic m the United States- RoCdRjing v. DI- U.S. 9' Ci. (15 Iune 1999) onimt: Fdaw emmining ways to prevent the distribution of DAT ~codem."~The W 1900's saw the introduction, in the Arnerican House and Senate, of bills reqwsting the incorporation of a copyguard system for digital recording equipment sold in the United States. After the National Bureau of Standards reported that no system wuld effectively prevent the copying of copyrighted work without impairing the sound quality or obstructing the recording of unncopyrighted works, the bills were dr~ppad.~'' bcause they needed the record industry's coo-on to produce popular prerecorded digital tapes, DAT equipment manufadurers were open to discussion with their opposition. In summer 1989, record companies and consumer electronic company representatives met in Athens, ~reece,~"where they reached a compromise on the DA1 problem: the Seriai Copy Management System (SCMS) would be integnted into non-professional DAT recorders, allowing the machine to copy an original prerecorded cassette but blocking it (mm making a copy of a co~.~The original prmrdedtape cwld be copied endlessly. This agreement had to be implemented by legislation.

The Athens Agreement conciliateid Amencan record companies and equipment manufadurers' positims, but did not take into account composers and music pubiishers' interests. In 1990, when a bill requiring the adoption of the SCMS standard for digital tape recording was presented to the Amencan Congm, songwriten and music publishers opposed it because the bill had no provisions conceming royaitim. They pleaded for a royalty to compensate Ibr the loss of revenues created by home taping. Negotiations began kmeen the National Music Publishen' Association, the Recording Industry Assoaation, and

~-Jl~w..nadlaw.COmlscnpICIUCXaCCh.pl?C~cti0a=ticblinggcourr~(date d: 5 S emba 1999) [herrinrfta Dim. "Tor mm information about the poposal mabod IO pmeathe mpyri@t kfkin- by the DAT. sec E. Fl&imiaim *T& [mprct ofDigit8i Tscbmlogy on Co- Liw" (1988) 70 J.P.T.O. 5. "%lu spnote 17 u MO. "9~ibdat160; DnRcs&Hun&~note293at112-113. 'm~a&Ehmgibidat113&203. equipment manufacturers. They finally reached an agreement mat required not only the incorporation of the SCMS standard in DAT equipment but also a statutory levy of two percent of the sales prie to be paid by producers of blank DATs and of three percent to be paid by DAT equipment produec~s.~'

This agreement led to the American Aud'no Hom Reading Act of 199~,~ signed into law by Preciident George Bush in October 1992.~The levies colleeted wem deposited to the Copyright Ofiiœ, whem they wete divided into funds to be distributed annually, nive-thirds to the Sound Recording Fund and onathird to the Musical Works Fund. The Sound Recording Fund was divided between the background musicians and vocalists on the recording, the record company and the featured recording artists. The Musical Works Fund compensated the publishem and mitersu'

The Audb Hom Recording Act of 1992 " prohibits judiaal adions against copyright infringement by a private noncommercial copy of a prerecorded tape, also known as home copying? Ewn though the Act does not exdude the OAT hmcopyright protection and home copying can still ba considered as copyright infringement, no action can be initiated since the Adrequires that levies be paid to the Copyright Office to compensate for mibieloss of revenues.

Contrary to expectaüons, DA1 t&nokgy was not popilar." Them am numemus explanations for this. It could be due to a la& of preiecorded

"' Sec Goldsrein, mpm nate 17 at 162; Davies & hg,ibid at 115 & 202-204. '= See Anrm'am CWgh Act supra note 2, c. 10. See Davies & Hung, supra note 293 at 201-202. '" Sec ibid at 204-207. 323 Set Amerium Cm@ Act, ~vpomte f c 10. For a Cmdim pnpscaive on homt copying, ssc PD. Ha- "Homt CaWing rnd Authorintion" 67 CJR (2d) 27 rnd S. Murin " LI mumaion pour copie pnMe" (1998) 11 CP1.327. 327 Sec Hinory of Sowid svpo note 305. in 1994. da of wwiad recordhg d&cu otba tbau CDS and dogtapes wnc tao srdi to k in the Cliudiin Staidcs. Sec Roeme~in rhc somd J'ee inrhmy onk StatiSncs Ca~da Qntp://www.slltcm.cl/~~idCuiturdrrut8.btm>(&te accu& 3 Novemba 1999)- tapes?' Popular tities mu& be available to the public (iK it to be~interesteci in the technology. Another explanation could be that consumers were not willing to invest in new equipment since this would have invoived buying favorites tapes again and investing in a technology that might not be available for the long terda

Chances are that the implementation of the SCMS in the device had a negative impact on the technoiogy's popularity. The principal concurrent of the DAT was the compact disc, which pemiits random amto its content. The DAT, even though it allows the listener to index the tape and to rewind at an extremely fast paœ, implies going through the whole tape to find a particular Song. One of the advantages of the OAT was its ability to make copies, and limiting this feature certainly lowered the popularity and consequenüy the distribution of the device.

Another negative factor might have been the levy on blank DATs end DAT equipment This tuincreased the pria of aie equipment and tapes. This additional obstacle rendered the commercial barn wiü~the compact disk more difficuît to win.

But is copyright mspansible for the emergenœ of thoset difficulties? The legislation is based on a commercial agreement mat was made possibie because the RlAA had an exdusive rigM to record some popular songs. The DAT equipment manufaduren wanted to produce pre-recorded DAT tapes with those songs. Therefore, the parties reached a cornpmmise because of the copyright characteristics

Even if copyright ddi dot diredy deiay DAT tectindogy, Îts indirect influence might have contn'buted to the diminished poputarity of the device. This is one example where North Amefican copyright seems to have hindemd technological

ln the late 1990'~~anather tecording technology chatlenged ocrpyright. The MP3 format is a digital audio compression algorithm used mostly on the Internet. The primary chara~sticof this system is its ability to cornpress large files into a more manageable size without any recognizable lm of q~alii.~~One of the leaders in developing this new fmat was the Fraunhofer Institut in Denmark, wtiich used the compression COOEC (MPEG-3) for television and radio bmadcasts of the Wïnter Olympia in ~lberhrilte.~'

Before the compression algonthm, the Internet was impmdial for distributhg music because of the great sire of the digital files. hmloading a song from the Worfd Wide Web took many houn, and saving this information required several floppy disks. Wm wm~ion,which m&es "an audio file 'smallet by limiting the audio bandwidt~'." digital audio filets can be transferred quickly and stored more effkiently. Due to its avaiiability to the general public, uniike its cornpetitor copyrighted algorithms, the most popular web based compression algorîthm is the MPEG-1 Audio Layer 3, also named "MP3". It an reduce the size of files by a factor of twelve without notaMy atfecb-ng round quality.=

Witti cable modems, it is possible for the average user to download on his personal cornputer a hiih quality audia fik within a few minutes, or evsn seconds. Sang the oppartunity, same organizaüons began to make music availabte through the Intemet: To utilize these tools, the first MP3 audio groups were created. Here is where the MP3 sane thdes will differ- As one of the first people in the groups: OMA and CM, I know which was the absolutely first group. However, many opinions within the scene will differ. DMA, Digital Music Audio (now defunct), was the very first MPEG-3 Audio group. Existing from approximately January 1995-Summer 3995, DMA was the first group to adually rip tracks off an audii CD and make them available via an FTP site.

How do 1 have such knowledge? I was one of the first people to do so with Toad The Wet Spmcket's "Al1 I Want)'. ûespite being the first MP3 group, DMA was very Iimited and never officially opened its' doors to an MP3 sœne. This is where CDA comes into play.

Public announcement breeds growai. When CDA released the first publically, group-teleased mp3's, it bmd many other groups. Neffradc, the original leader of CDA, ran the group well, and in time, such highly regarded groups to the liking of Rabid Neurosis (RNS) and Digital Audio Crew (DAC) began to see the IigM of day .

Wth the many different groups ffiat came out of the MP3 scene, there were many diffennt sgecialiations. Rabid Neurasis, for example, was known mainly fireleasing the rareluncammon, yet quality nps, whereas DAC and CDA wuld release more "mainstream" material?

Various pitate websitas b8gan to Mer ftee dawnloads of apyrighted material; a single pirate site eauld distribute thousands of pirated audio computer 618s. However, before 1999, MP3 users wre Iimited to Iistening to their downloaded songs through their personal computer, playing them from their hard drives. This restricted use of the MP3 Iimited the formats popularity.

But then Diamond Multimedia Systems produced "Rio", the first portable MP3

The Rio renders these wP3] files portable. More precis81y, once an audio file has hem downloaded ont0 a amputer hard drive fiom the lntemet or some other source (such as a compact disc player or digital audio tape machine), separate computer

"Genacide, supra note 330. software provided with the Rio (calld "Rio Manager") allows the user further to download the file to the Rio itself via a parallei port cable that plugs the Rio into the cornputer. The Rio device is incapable of effecting such a transfer, and is incapable of receiving audio files from anything other than a personal computer equipped with Rio Manager. Generally, the Rio can store approximately one hour of music, or sixteen hours of spoken matenal (e-g., downloaded newscasts or books on tape). Wth the addition of flash memory cards, the Rio can store an additional half-hour or hour of music. The Rio's sole output is an analog audio signal sent to the user via headphones. The Rio cannot make duplicates of any digital audio file it stores, nor can it transfer or upload such a file to a computer, to another device, or to the Intemet. However, a flash memory card to which a digital audio file has been downloaded can be removeâ from one Rio and playd back in another?

Sinœ the format appeared in the mid-1990s, the Recording lndustry Association of America (RIAA)~*has been attentive to the MP3's evolution. The Association has fought a constant battie against Intemet piracy, monitoring the Internet daily and routinely shutting down pirate websites by sending cease-anddesist Wrs and filing lawsuits. The appearance of the first portable reader alarmed the RlAA. Using the Audio Home Recording Act of l~Si2,~'the organiration (Aed a lawsuit to prevent the manufaduring and distribution of the Rio. The recording industry argued that the Rio did not meet the requirements for digital audio recording devices under the Act because it did not use the SCMS feature, which limited copying of cepyrighted materiaLP" The RlAA alw wvght payment of the royaIti8~seemingly due by Diamond as the manufacturer and distributor of a digital audio recording device.

The Amefican District Court denied the iecording industry's motion for a preliminary injunction, holding that the Association's likelifiood of success on the

f3s Diam4 supra note 3 16. 3M Sœ Section 3.9, above. 3" Sec American Cm@ Act, supnote 2, chrp. 10. 33a At tbt rime tht pnlunmary ïajunuion was sou@ and denid, the Rio madine did not incorpofate SCMS.Whüe the decision was pcnding. Diamond hcorporated the man hotht Rio Mampr softwarr but not into the Rio device itJdf. Sec Dirtinad sqnr note 3 16. merits was mixed and that the balance of hardships did not tip in its favor.jj8 The RlAA appealed this decision.

The recdrding industry argued that lntemet distribution of serial digital capies of pirated wpyrighted material woufd discourage the purchase of Iegitimate recordings. They evaluated losses due to digital lnternet piracy at $300 million more than what was allegedly lost annualîy due to other more traditional fonns of piracy. This anticipatecl financial loswas mtradicted by Diamand's lawym, who maintained that willingness to downtoad illicit files far ftee did not necessarily correlate to lost sales. Just because a person was willing to accept an item for free did not mean that she would purctiase the sarne item, even if it were no longer freely available. Mareove?, they argued that the Internet supported burgeoning trafic in legitirnate audio cornputer files. Many unsigned artists distributed their music from their own websites. Some record labels sold and provided fme sampies of üwir artists' work online for marketing purposes. Ah, a new industry promoting the purchase of mail order mrdings or recordings available for dired dmloaâ were using the MP3 distribution taetics.

On 15 June 1999, the American 9th Circuit Court of Appeals rendered a decision in Remrding lndustry Assoa'atim of Arne& v. ûi8mOnd MuMmedia ~ysfms.~The COUR adopîed a pragmatk appmeeh and limited b analysis to wheaier the Rio portable music piayer was a digital audio recording device subiect to the mtriûions of the Audb Home Recoding Act of 1992.

The Court obsewad that the Ad does not Wiy prohiba digiil serial wpying of copytight protected audio recordings; it places testrictions anly upn a specific type of recording device. The Ad provides that no me shall import, manufacture, or distribute any digital audio mwding device that does not conform to the SCMS or a system having the same charactenstics. The Act also states that no one shall import into and distribute, or manufacture and distribute, any digital audio recording device except a person who records the notice specified by the Act and deposits the statements of account and the applicable royalty payments. Therefore, the Court stated that to fall within the Audio Home Recording Act of 1992 scope, the Rio must be a "digital audio recording device".

The legal notion of "digital audio recording device" is defined in the Act through a set of detïniüons: A "digital audii recording device" is any machine or device of a type cornmonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copiecl recordirng for private use, except for : (A) professional mode1 produds, and (8) dictation machines, answering machines, and other audio mcoding equipment that is designed and marketed pnmariiy for the creation of sound recardings resulting hmthe fixation of nonmusical sa und^.^'

A "digital audio copied recording" is a reprodudion in a digital recording format of a dgital musical Wing, whether that reproduction is made direct& from another digital musical recording a indindly nM> a tmnsrni~sbn.~

Consequently, to detemine whether the Rio was included within the jurisdiction of the Audb Home Recording Act of 1992, the Court of Appeals had to analyze whether the machine was able to reproduce, either directly or ftom a transmission, a digital music recording. The Court first msidered whether the Rio was able to reptoduœ a digital musical recording directly from another digital musical reeording. The definition of a digital musical reccirding is:

A "digital musical recardingn is a material objj (il in which are iixed, in a digital recording format, only sounds, and material, statements, or instructions incidental to those fixed sclunds, if any, and (ii) from which the sounds and material cm be perceived, reproduced, ar otherwise comrnunicated, either directly or with the aid of a machine ar device. A "digital musical recarding" does not include a materiai objecî - (i)in wtrich the fixed sounds wnsist entireiy of spdcen wod reoordings, or (ii) in which one or more amputer pmgrams are bed, e=Pt that a digital musical recording rnay contain staternents or instructions canstituüng the hed sounds and incidental material, and staternents or instructions to be used directly or indirectly in order ta bring about the perception, reproduction, or communication of the fixed sounds and incidental material?

The Court observed that the typical cornputer hard drive from which a Rio directly records is a materi'al objed. Haivever, thb hard drives contain much more than "only swnds, and material, statments, or instructions incidental ta those fixed wunds.'* The Court also obsewed that cornmon hard drives contain numemus cornputers programs and databases that are not incidental to the wund files that may be stored on them. Therefore, the amputer hard drive from which the Rio records does not qualify as a "digital musical recarding" because the Act expressly excludes ftom the "digital musical recording" definition a material objed in whii one or more amputer prognms are W. Even though this finding already excluded the Rio from directly reproducing a digital music recording, the Court secured its position by justifying this exdusion with the legislative history of the disposition. The Senate Report states that "if the material object contains computer programs or data bases that are not incidental to the fixed sounds, then the material objed would not qualify" under the basic definition of a digital musical recording. The Senate Report further states that the definition "is intended to cover those objects commonly undemtood to embody sound recordings and their undeflying works." A footnote makes explicit that this definition only extends to the material objects in which songs are normally fîxed: "[tlhat is recorded compact discs, digital audio tapes, audio cassettes, long-playing albums, digital compact cassettes, and mini-discs." There are simply no grounds in either the plain Ianguage of the definition or in the legislative history for interpreting the term "digital musical recording" to include songs fîxed on computer hard drives.

RlAA contends that the legidative history reveals that the Rio does not fall within the specifc exemption mm the digital musical recording definition of ''a material o@ct in which one or more computer programs are M."The House Report describes the exemption as "revisions refiedihg exemptions for talking books and computer ptograms." We first note that limiting the exemption to computer programs is contrary to the plain meaning of the exemption. As Diamond points out, a cornputer program is not a material object, but rather, a iiirary work that anbe fixed in a variety of material objects ("Literary works' are works . . . expressed in words, nurnben, or other verbal or numerical symbols or indiaa, regardless of the nature of the material objects, such as books . . . tapes, disks, or cards, in which they are embodied.").

Thus, the plain langu- of the exemption at issue does not exclude the copying of progtams hmaverage by the Act, but instead, excludes copyïng from various types of material objects. Those objects include hard drives, which Mirectly achieve the desired resuit of excluding copying of pqrams. But by its plain language, the exemption is not limiteâ to the copying of pmgrams, and instead extends to any copying from a computer hard drive.

The Court stated that under the pbin meaning of the Ads definition of "digital audio recording", computer hard drives are not digital audio recording devices because their primary purpose is not b make digital audio copied recordings. The Court observed that unlike DAT machines, whose primary purpose is to copy digital audio recordings, the primary purpose of a computer is to run various programs and to record the data necessary to nin those programs and perform various tasks. Consequently, the Court conduded that the legislative history of the Audio Home Reading Act was consistent with its conclusion that personal computers should not fail within the definition of "digital audio recordingl'.

Based on the Act's definitions, the Court eancluded that the Rio did not make direct copies from digital music recordings, and thus would not be a digital audio recording device under the Audio Home Rmrding Act of 7992 unless it were to make copies hwn tninsmissions.~

In viewing computers as nondigital audio recording devices, the Court also conduded that they were not required b comply with the SCMS requirement. Judge O'Scannlain, who wriote the majonty decision, stressed that, in practice, the majority of MP3 files do not even cary codes providing information used by the SCMS device to detemine copyright and generation status. Therefore, the incorporation of SCMS into the Rio would allow the Rio to copy MP3 files lacking SCMS codes so long as it rnarked the copied files with an original generation status. In fact, without SCMS the Rio inherently allows less copying than SCMS pemits. The Rio does not allow further copies to be made because it cannot download or transmit the files that it stores, but, the SCMS system would allw an SCMS device to make unlirnited copies of an original generation file.

The Court also analyzed the Rio's capacity to reproduœ a digital music recording from a transmission. This abifi could still qualiï the Rio system as a digital recarding device. The term "transmission" is not defined in Act, although the use of the term in the Act implies that a transmission is a communication to the public. (placing restrictions upon "[alny person who transmits or othewise communicates to the public any sound recording in digital format") In the conta of copyright law (frorn which the terni appears to have been taken), "[tlo transmit' a performance or display is to communicate it by any device or proas whereby images or sounds are received beyond the place from which they are sent." The legislative history confirms that the copyright definition of ''transmission" is sufficient for Our purposes hem. The Act originally (and circularly) provided that "[a] transmission is any audio or audiovisual transmission, now knm or later developed, wbther by a bmadcast station, cable system, multipoint distribution service, subsuiption servics, direct broadcast satellite, or other fonn of analog or digital wmmunication."

The RlAA and Diamond did not dispute the definition of transmission, but rather, whether indirect reproduction of a transmission of a digital music recording was covered by the Act. The RlAA argued that indirect reproduction of a transmission was suffiCient for the Rio to fall within the Audio Home Recording Act's scope as a digital audio recording device. In response, Diamond asserted that the adverb "indirectly" modifies the recording of the "digital music recording" rather than the recording "from the transmission." Diamond argued that the statute should be read as covering devices that are capable of making a reproduction of a digital musical mrding, whether that reproduction was made directfy ftom another digital musical recording or indirectly from a transmission.

The Court obwed that hile the Rio can only directly reproduce files from a computer hard drive via a cable linking the two devias, which is not cansidered a transmission, the Rio can indirectly reproduce a transmission. The Court gave the example of a radio broadcast of a digital audio recording recorded on a digital audio tape machine or compact disc recorder and then upio8ded to a computer hrd driue. In this situation, the Rio couki indirediy reproduce the transmission by downloading a copy from the hard drive. Consequently, if an indirect reproduction of a transmission were to faII within the statutory definition, the Rio would 4e a digital audio reeording device. Analyzhg both parties' pretensions, the Court stated that even though the RIAA's interpretation of the "digital audio capied recording" definition initially seemed plausible, a closer analysis revealeâ that it was contrary to cornmon sense. The focus of the statutory language was on the two means of reproducing the digital music recording, either directly from that recording, or indirectly, by reproducing the mrding from a transmission. The Court underlined that the RIAA's interpmtation of the Adwould aniy cover the indirect recording of transmissions and would omit restrictions on the direct recording of transmission from the Acis sape. The Court reiused 10 adopt this interpretation, arguing that it would significantly redw the protection afbrded by the Act to transmissions, and that neMer the statutocy language no: 3tnieture provided any reBson for the Act's protection to be so limited. The Court added that it made lime sense for the Audio Home RBcoTding Act to mstn'ct the indirect recording of transmissions but to allow unreaûicted direct recording of transmissions. This interpretaüon of the Act wouîd allaw untimited direct mrding of songs from the radio, but wMlead to regulation of second-hand recordings of such songs. The Court conâuded that the most logical reading of the Act extends prateetion to di& copying of digital music recordings, and to indirect copying of digital music recardings Rom transmissions of those r8cordings.

However, to suppart this interpretatiori, and because of the ambiguity of the provision, the Court also anaiyzed its legislative histwy. After examining the Senate RepoR, Judge O'Scannlain conduded that the recording of a transmission need mt be indirect to fsll within the scope of the Acf and interpreted indirectly as moding the verb "is maden. Consequently, the Court concluded that because the Rio cannot make copies hmtransmissions but instead can only make copies frorn a cornputer hard drive, it is not a digital audii recording device, and it is not irtduded in the scope of the Au& Home Rmrding Act. The Court of Appeals also observed that Rio utilkation is consistent with the Act's purpose, which is the faciliitation of the personal use of wofks. Refem'ng to the Sony V. Univemal u tu di os^ decision. Judge û'Scannlain argud that Rio users merely make copies in order to render portable or space-shift files already contained in their personal wmputgrs' hard drives. Because this copying is for non-commercial personal use, the use of the Rio is consistent with the purposes of the Act. The Court concluded: For the faregoing reasons, the Rio is not a digital audio recording device subject to the restrictions of the Audio Home Recording Act of 1992. The district court pmperly denied the motion for a preliminary injuncüon against the Rio's manufacture and distribution. Having so detemined, we need not wnsider whather the balance of hardshg or the posribility of imparable harm supports injunctive relief.

Until now, the North Arnerican legislatures have not plaeed any restrictions on the MP3 playets distributi~n.~~This decision is mistent with the new appmach of No* American copyright to fawr noncommercial use of works and to exclude new technologies tom its pratective scope. Even though it is too eariy to evaluate the influence of copyright on the MP3 playets development, we can presurne that since the legislatures have refused to regulate the distribution and manufacture of the MP3 player, copyright will not delay its devdogment.

347 Sec Section 3.8, above. UaDïamat4 sirpnrnote316. W9 Set T. Hardy, The hanet ami the Law: CoMght and "New-Usem Technolo@esm(1999) 23 Nova L. Rev. 657; T. Skdtoa, "Imanet Copyright Mhgancm and Savice Providas: The Case for a Ntgodated Rulading Alternative" (1998) 35 Sm Diego L. Rev. 219; Vabks, supni note 333; R CaPsius de tmvaL "Les fichiers MP3 a in propriitc hdlectuW (1999) 30:15 1. & B. at 8; R Cassius de Liavai, .MP3: ia chasse aux cbmrrfactcurs cst ouvertem (1999) 30:I6 J. du B. at 8; M-K. DachampMarpias "Confëhnce de PAQDIJ: les MP3 a Ie dmit d'ana" (1999) .3t:t7 .- 1. du B. 11 at 11; 1.-F. Codhe, Le Rio de Diamond est IQd" (1999) ook: Mhhdum ~~ttp~iwww..mmediumcOml~~- bidMNlVdles.cgiiIH432> (jas dak15 juin 1999); Le Iec14wt MP3 s0st)l~nM'Ile ghr L Irie musicCrle? (1999) onlme: MultmKdium

The study of technotogical evolution, from the origins of copyright to the digital era, provides an overview of copyright's reaction to new copying devices. Sometimes North Arnerican copyright has been extended to protect authon against the unauthorized reproduction of their works. However, the legal community sometimes has refused to extend copyright protection to regulate new devices. The ways used to express copyright's reaction have also differed. Often introduced by courts, copyright changes have usually ben confimed by the legislature. Consequently, tectinologicai development certainly influenced copyright.

As illustrated in this chapter, copyight has had an effect on the evolution of îhe technologies, somettimes positively, sometime negatively. But on a global basis, has copyright delayed techmiagical develapment?

See Digitui Milenniam CoWngfa Ac, HA 2281. Saalso N.W. Wck, "lT and the Digital Copyright DiIemrmm (1999) online: IT Knowledge Center Article ~bap~/www.intrawut.comlnul~iÏdigcoWrightbtmP(due rrmwi- 1 Novanber 1999); ASCM Internez Licensïng: Freqvem& As&d Qme.uïm about In~netLicensing (1999) oniine: ASCAP

It is interesting that the copyright question did not saem to be an issue for the inventors of the devices describecl in this thesis? R was only during distribution that issues arase, which can probably be explained by the fact that copyright is a complicated legat concept that is diicult to enforce because infringement is usually done in private. Inventors are offen unaware of copyright restrictions or are not limited by them because they do not see the practical consequenees of copyright infringement.

Copyright has had no impact on the evolutim and deveiopment of the printing press, the player-piano, cable TV, the photmpier and the videotape recorder. For the cases of the printing pressm and cab TV,= copyright intemention occurred too late to afiect the technologies' development. In both situations, when the North Arnerican legislatures d&dd to protect authors against this type of technology, the device was already fuily developed and established.

Copyright's impact on player-pianos is more difficult to grasp, but it seems that the positive and negative effeds of the tight were of no consequence to the

3nSec section 24, above. 3n See, &on 4.1, above. lHIt mi@ ho- b.M idùmcd okinvernon. 355 Sec, don3.1, above. 3% Sec, section 3.6, about. technolagy's distnbutiin and papu~anty.~Evm though the produdion of piano mils was probably more expensive due to copyright restrictions, the populaw d the device was not anected until the Great Depression of 1929.

It taak mare than sixteen years More copyright adopted a definite position mnceming photcmpy technol~gy.~During thic time. the technology was developed and widely distributed. The American Supreme Court chose not to interfere Wh the use of the techraology, and the legislature followed this approach, allswing alrnost unrestricted use of the device. Hawever, this apprciach seems not to have influemed the photocopier's evoiution.

Finally, North America compietely avoided regufating the use d videotape recorden." Considering that users muld legally record mir favorite TV shows. and that the legal bodies preferred not to mgulate the utilisation of the apparatus, it is possible to eonciude mat copyright did not influence the recorder's development.

However, copyright taw sornefjmes had a positive impad on the technological evolution. as is the case with phobgmphym and the motion pichire."' It twk a long time mrecopyright granted protection to phtography, but when it did, it certainly had a positive etfect on its development. The protection permitted photographers to have exdusive conûoi over their -ms and the distribution of th& works. ASO,the protection given to photographs taken for commercial purposes incmasd financial interest in the new medium.

For motion pictures, the indusion of the new tectinology in the copyMM scope incmsed investors' interest in the production of the medium. Copyright

317 Set, seaion 3.3. above. 35s Sec don3.7. abwe. 3s Se, section 3.8. above- 340 Set, 3.2, above. Sec, section 3.4, above. protection led to high budget movies and theif wide distribution. Even though the obligation to pay royalties for the cinematographic adaptation of a novel might have incmased production costs, wpyright protection probably positively influenced the motion picturets development overall.

The only technologies that appear to have been negatively influenced by North American copyright were radio and the DAT. But, in both cases, the law did not directiy influence the deviœs' evolution. Rather, it was the use of the exclusive right that delayed the technologies' development.

Early on, radio was induded in tlre definition of public performance, an already unauthorized type of reproduction. Copyright made it possible to delay the technology, but the mal âelaying factor was the abusive utiiiition of that right by ASCAP. As exposed in last part," the inability to broadcast Wts**certainly diminished the popularity of radii, and even though this situation only existed for a short period of time, we can consider that copyright scarcely delayed its technological evolution and has likely not affecteci its economical impact.

For DAT technology, the negative impact stemmed from a commercial agreement, which was made possible because the RlAA had an exclusive right to record mepopular mgs.* Due to the copyright iswe. the parties agreed on a compromise that influenced the development of the DAT machine. Modifications to the device and the lwy on blank DATs and DAT equipment are not the only explanation for ttre tedrndogy's lack of popularity. However, it is one of the most probable causes.

The most reiœnt techrtohgy to d>alIenge mWnpht was the MP3 player.m lt is still too early to evaluate the impact of copyright on the MP3 format, but the first North Arnerican decision dealing with this device did not Iimit its utilisation. The positions that will be adopted by legal bodies over the MP3 format will influence the MP3 playefs evolution. The imposition of a levy on lnternet sem distributing MP3s might diminish the music's availability. But, because of the Intemet's international charader, this may lead to a migration of such distributors to sewers outside North America and to no difference in the MP3's distribution costs or popularity. In any event, this is pure speculation since it is still too early to make a proper evaluation. Thus, no conclusion can be made concerning the impact of North American copyright on the MP3 playets development.

Obviwsly, copyright has not had a major influence on the technological evolution. Most of the time, its impad was indirect and lukemnn because it was rnixed with other factors. In the two situations where the exelusive right appeats to have had a negative effect on the technological evolution, the consequences were not exclusiveiy attributable to copyright and only idto lower popularity of the devices without directly hindering their distribution to the public.

This study has demonstrated that copyright has had bath positive and negative effects on technological development. Although the answetr to the hding question is that copyright has someb'm delayed technolog'cal development, this study may help copyright promoters better argue their position. The historical approach used in this thesis has also granted a unique opportunity to observe readions to new technohgies. M should inspire a new perspective on the attitude to adopt in future conflicts between copyright and technological deve bpment Act for the Protection of Authors, 4-5 WC., c. 61 (1 841).

Act of March 4, 7909, c. 320, 35 Stat. 1075, 17 U.S.C.

Act of 1832, 2 Will. IV, c. 53.

Act of Aug. 24, 7972, ch. 356, Pub. L. No. 62-303, 37 Stat (part 1) 488-90.

Act of July 8, 1870, c. 230, 16 Stat. 198.

Acte concernant la pmpnBtB littemin) et artistQue, 1968.3 1 Mc., c. 54.

An Act supplemental to an Ad entitled "An Act to Amend the Seveml Acts mspecting Copyright :13 U.S. Stat at L. 540 (1865).

Berne Convention for the Protection of Literary and Alfistic Works, 9 September 1886,828 U.N.T.S. 221.

British Nodh Arnerican Act, S. 91, ss+23.

Canada-United States Free Tmde Agrrtement Implementation Act, SC 1988, c.65.

Copyr@ht Act of 1976, Pub. L. 94-553, üüe 1, g101, Oct. 19,1976.

Copyright Act, 1 Stat. 124,

Copymht Act, 17 U.S.C. $106 (1998).

Copyright Act, 1921, c. 24.

CopynQht Act, 31 Vic., c. 54.

Copymht Act, 4 Stat. 436.

Copymht Act, R.S.C. 1906, c.70.

Copyright Act, R.S.C. 1985, c. -2. Copyright Amndments Act, 1923, c- 10, S.S.

Copyright Amendments Act, 2 Stat. 17 1.

Digital Miiknnium Capynght Act, H. R 228 1-

Dominion Copyright Act, 38 WC., c. 54.

Dramatic Demy Pmperty Act, 1833 (3 & 4 Wilb c. 15).

Engmving Copyright Act, 8 Ga.2, c.13.

Importation of Bds&y Aliens Act, 1 Ric. 3, c.9.

Licsnsing of the Press Act, 13 & 14 Ch. 2, c.33.

Pniiters and Binders Act, 25 Hen. 8 c. 15.

Sculptum Copyright Act, 54 Geo. 3, c.56.

Statute of Anne, 8 Anne, c.19.

JLIRISPRUDENCE

Bach v. Longman (1777), 2 Cowp. 623.

BEeist~i,v. DonsMson Lithogmphing 188 U.S. 239 (1903). &mey v. Whight [i9001 1 Ch. 122.

8umIk"Giks WwgmphiC Co v. SarPny 1 1 1 US. 53 (1884)+

Canadian Admiral v. RediffusEon. (1954) 20 C.P.R. 75.

Chappell v. Puday 14 M&W 303 (t û45).

Donalson v. Beckett 4 Bum. 2407 (1774).

Durand & Cie v. La Pm(1960), 20 Fax Pat. C. 85 (S.C.).

Edison v. Lubin 119 F. 993 (E.D. Pa. 1903). 122 F. 240 (3' Cir. 1903).

Fei& v. Rural Tekphone Semica, 4499 US. 340 (1991). Fortnightiy v. United Artists TelevMm 392 U.S. 396 (1968).

Hedrt v. Shaniey, 242 US. 591 (1 917).

Rearding Indus. Assh of Ametka, lm. v. Diamond Multimedia Sys., lm, 29 F. Supp. 2d 624 (CD. Cal. 1998).

Recording v. Oiamnd U.S. grnCir. ,l5 June 1999 (CA).

Statement of Royalties to Be Coliected for the Pehmance or the Communication by TelrecommnMhn, in Canada, of Mus&/ or DrarnatktAi4uskal Works, (27 October 1999), Tariff 22 (C.E.D.).

Stowe v. Thmas, 23 Federal Cases 201 (C.C.E.D. Pa. 1853).

Tek-Direct v. AmhnBusiness Inkmation, [1998] 2 C.F. 22.

Tom Hopkins lntemationai v. Wall 8 Redekop ReaNy Il9841 5 W.W.R. 555 (B,C*S.C.).

Trsde Mak Cases 1 00 US. 82 (1 879).

Undenvriters' Sumy Bureau v. Massie & Renwick,[1937) Ex. CR. 15 at 20.

Universal CRy Studh v. Sony Corp. of Arne-, 480 F. Supp. 429 (C. O. Cal. 1979), 659 F.2d 963 (9' Cir. 1981). 46) US. 417 (1984).

MiteSmith Music Pub. Co. v. Apolh Co., 209 U.S. 1 (1908).

WiIIiams and WiIkins v. Ttie United States, 172 U.S.P.Q. 670 (1W2), 487 F.2d 1345 (1 974); 420 US. 376 (1 975). SECONDARY MATERIAL : MONOGRAPHS

Archer, O. L., Histoty of Bmdc~sfing:Radb to Television: History of Radio to 1926 (New York: Arno Press, i97l).

Avis, F.C., The Fi& English CopyrQht Act (London : Glenview Press, 1965).

Birrell, A, Seven Lectums on the Law and Hisloiy of Copyright in Books (South Hackensack, N.J., Rothman Reprints, 2971).

Black. H. C.. Blacks Law Dicfhary. 6" ed. (St-Paul, Minnincua: West Publishing, 1990) SV. "copyrightn.

BiacKs Law DE'etionary, 6* ed..

Brunet, C., Le gommement du Quebec et les dru& d'auteum de la couronne (Québec: Ministh des Amires culturelles (Gouvernement du Quebec), 1983).

Cristea, L N., ~ûib~a i'etude du dtW d'auteur: sa natute junkiùpe a tmws son hiution : Btude de dm# francsis (O. Jur. Thesis, Univenite de Paris 1938) [unpublished)

Oavies G., & Hung, M., Mu& and Vide0 Private Copyhg : An intemetionel Sumy of the Problem and the Law (London : Swleet & Maxnrell, 1993).

Diserens, D.. Le location de videogmrnmes et de phanogmmms en dm d'auteur (Ge& : Librairie Oror, 1986).

Du Pasquier, A, Le dmit du fabn'cant sur les disques de gramophone (Pans : Recueil Sirey, 1940).

Dunlap, O. E., fhe Stoty of Radka (New York: Dial Press, 1927).

Fox, H, G., nie Canadien Law of Copyn@t and IndustfiaI Designs (Toronto, CawllCo., 1967).

Fmmn, A, Le dmit d'auteur : aspects intamationaux et comperatifs (Cawansville, Quebec : EdÏtions Y. Blais, 1992). Gamett, K, James, J. R-, & Davies, G., Copinger and Skone James on Copy@ht, 14th ed. (London : Sweet 8 Maxwell, 1999).

Gendreau, Y., La pmtecübn des photographies en droit d'auteur français, américain, brithannique et canadien (Paris : Bibliothdque de droit prive, 1994).

Gendreau, Y., The Retransmissbn wht : Copymht and the Rediffusion of Worics by Cable (Oxford : ESC, 1990).

Gillard, R., L'antenne collective et la communkatkm par fil au public en droit de pmpnété intellectuelle (Berne : Herbert Lang, 1976).

Gddstein, P., Copyright's Hghway :hm Gutenbeq to the Ceiestial Jukebox (New York : Hill and Wang, 1994).

Handa. S., Understendhg The Modem Law Of Copyrfght in Canada (O. Jur. Thesis, McGill University 1998) [unpublished].

Hawkins, J. M., The Oxlbd Papert,eck DMhnary, 34 ed. (Oxford : University Press, 1988).

Heilprin, L. B., Copyn@htand Photocopflng Papers on Pmblems and Solutions, DeMn for a Chringhouse, and a Bibliognphy (Baltimore: College and Library and lnfwmation Services Univenity of Maryland, 1977).

Holliday, K. A., Reprod~~ngPianos Past and Present (Leuvinston, New York: Edwin Melietn Press, 1989).

Hughes, R, T., Hughes on Copmht and Industrial ksi@, (ooseleaf (Toronto : Butterworths, 1984).

Hugo, V., NotmOame de Paris (Pans: Bookking intemational, 1993).

Johnston, O-, Johnston O., 8 Handa, SI Getting Canada Online :Understanding the Infbmratkwt Hghway (Toronto : Stoddart, 1995). Kaplan, B., An Unhumed View of Copyright, (New York : Columbia University Press, 1967).

Lahore, J., Copyright law :lntellectual Propett'y in Austral&, bseleaf ( Sydney : Butterworths, 1996).

Lalonde, F., La câblodistribution et le droit d'auteur r É~mntsde retbxion (Québec, Ministère des communications, 1983).

Lalonde, F., La c~blodistributionet le droit d'auteur: Élements de Mexbn (Québec, Ministere des communications, 1983).

Le petfi Robert 2: dictionnaire univeml des noms pmpres, 2"6 ed..

Ldtoumeau, D., Le droit d'auteur de I'audiovisuel: une cuîture et un droit en ewlution, (Cowansville (Qu6bec) : Yvons Blais, 1995).

Loades, O., Hemi Vlll and his Queens (Godalming, England: Bramley Books, 1997).

Macgowan, K., Behind the Scrwn: The History and Techniques of the Motion Pktures (New York, Delacorte Press Book, 1965).

Miller, J.K, Video CopyMht PermissEOns: A Gu& to Secun'ng Pemissbn to Retain, Perfonn, and Transmit Television Pmgmms Videotapeà OîY the Air (Friday Harbor : Copyright Information Services, 1989).

Patterson, R., CopyMht in Hisforicgl Perspective. (Nashville, Vanderbilt University Press, 1968).

Pinner, H. L, fhe Wodd of Books in CIsssic8l Antiquity (Leiden : A. W. Stimff, 1958).

Ploman, E.W., 8 Hamiiton, L.C., Copyrisht: lntellectual Propedy in the Inbmation Age (London : Routledge 8 Kegan Paui, 1980).

Putnam. G. H., Books and their Makers duniig the Mi#k Ages :a Study of the Conditions of the Production and Distribution of Lteratum from the Fall of the Roman Empii ta the Che of the Seventeenth Centuty, vol. 1 (New York: G.P. Putnani's sons, 189ô-1897).

Raynard, J., Omit d'auteur et conflits de fis :essai sur la naturw juridique du droit d'auteur (Pans : Litec, IWO).

Risset, J.-C., ïhe Development of Dgaal Techniques: A Tuming Point fOr Electmnic Music? ( Paris: IRCAM, 1978).

Robinson, O., FmPeep Show to Palace: The Birth of Amencan Film. (New York: Columbia University Press, 1996)-

Rose, M., Authors and Owners :the Inwntbn of Copmht (Cambridge, Mass. : Harvard Universrty Press, 1993).

Simpson, J. k and Weiner, E. S. C., The Oxlbrd English Dictionaty, 2* ed., vol. 3 (Oxford : Ciareridon Press, 1989).

Sterling, J.A.L., lntellectual Propetfy Rights In Sound Recordings, Films and Video (Toronto : Cars&, 1992).

Tate, C., able Tef8viSran in Ihe Ciîbs: Cammunity control, Public access, and Minority Ownership (Washington: Urban Institute, 1972).

The Oxford English DidMnaty, d..rv. 'copytighî".

The Oxhtù Paperback DEétionary, 3d ed., S.V. "copyright8*.

Vaver, O., lntelledud Propetty iaw, (Concord, Ont :MnLaw, 1997).

SECONDARY MATERlAL : ARTICLES

Aide, C., "A More Comprehensive Soul: Romantic Conception of Authorship and the Copyright Doctrine of Moral Right" (1990) 48 U.T. Fac. L. Rev. 197.

Arzeno, F. 'Welcorne to DAT worid" (1999) online : ûiiital Experience (Last modified: 7 May 1999). Berg, J., "Moral RiiMs: A Legal, Historical and Anthropdogical Reappraiml. 6 I.P.J. 341.

Breyer, S. "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Cornputers Programs" (1970) 84 Haru. L. Rev. 281.

Brill, S. 9Vill Betamax be busted?" in G. P. Bush and R. H. Dreyfuss, ed.. Technobgy and Copyright (Mt. Airy, Maryland: Lomond Books, 1979) 317.

Cameron, D. M. & Dimock, S. H. "Copyright and Copying Machines" (1987) 4 Can Comp. L. Rep. 186.

Cassius de Linval, R, "Les fichiers MP3 et la propriété intellectuelle" (1999) 30:15 J. du B. 8 .

Cassius de Linval, R. "MP3: la chasse aux contrefacteurs est ouverte" (1999) 30:16 J. du B. 8.

Chris, B. "Pre-1900 - The Theory and Foundation" (1999) online: Surfing the Aether ~http:I~.northwind~.net/bctrris/prel900.htm> (last modii: 1 July 1999).

Chris, B., "191 0-191 9 - Technical Advances" (1999) online: Surfing the Aether ~Mtp:/~.northwinds.net/bchris/1915.htm (last modii: 1 July 1999).

Chris, B., "1920-1929 - Early Broaâcasting" (1999) online: Surfing the Aether ~Mtp:/EHMMl.northwinds.net/bchris/1920.htm > (last modified: 1 July 1999).

Chris, B., "19304939 - The Golden Age" (1999) online: Sudïng the Aether c http:lEHMMl.northwinds.net/bchriSl1930.htm > (last modii: 1 July 1999). Chris, B., "1940-1949 - The War Years - GlOWfh* (1999) online: Surfing the Aether c~:l~-northwinds.netlbchris/l940-htm> (last modiied: 1 July 1999).

Chris, B.. "1950-1959 - Coming of Age" (1999) online: Surfing the Aether ~Mtp:l~.northwinds.netlbchrisll950.htm > (last modified: 1 July 1999). Codere, J.-F. "te Rio de Diamond est légal" (1999) online Multimddium ~http:I~.mmedium~~0rn/cgi-binlnouveil.i?ld=2432(last modified: 15 juin t999).

Darling, O. "Reprography Collecüves in Canada: The Impact on Educational Use" (1992) 9 C.I.P.R. 104.

Deschamps-Maquis, WH. "Conference de I'AQDIJ: les MP3 et le droit d'auteur (1999) 31 :lï J. du B. 11.

Desjardins, M. "L'échantillonnage du son en digitales et le droit d'auteur au Canada" (1991) 3 C.P.1205.

Dougtas, L. "Librarians, Copyright, and Technology : The Grawth of Activism in the Quiet Profession" (1991) 6 I.P.J. 377.

Filipiuk, W. 'The Canadian Adminl Case: Canada's Law of unfair cornpetion" (1958) 29 C.P.R. 31.

Fleischmann, E."The lmpad of Digital Tedrnology on Copyright Law" (1988) 70 J.P.T.O. 5.

Çreid, S. "Fair Use and The New Acf' in G. P. Bush and R. H. Dreyfuss, ed., Technoiogy and Copymht (Mt. Airy, Maryland: Lomond Books, 1979) 465.

Fry, B., White H., 8 Johnson, E., "Schdarly and Research Joumals: Suruey of Publisher Practiœs and Present attitudes on Authorized Journal Article CopyÎng and Liising" in G. P. Bush and R. H. Dreybss, ed., Technology and Capyf@ht (Mt Airy, Maryland: Lomond Books, 1979) 355.

Gendreau, Y. "A Canadian Retransmission Right A Reality at Lasr' (1989) 4 I.P.J. 397.

Grnocide "History of MP3" (1998) online: Dimension music c http:/~.dmusic.cOmlaRidesBistl.txP (Date accessed: 15 September 1999). Gibbens, R. O., 'The Moral RigMs of Artist and the Copright Act Amendments" 15 Can. Bus. L.J.441.

Green, B. M. "Copyright in Videotape: Tom Hopkins Intemetional v. Wall & Redekop Reaw (1985) 1 I.P.J. 180.

Green, S. C. "The Cable Television Provisions of The Revised Copyright Act" in G. P. Bush and R. H. Dreyfùss, ed., Technolagy and Copymt (Mt. Airy, Maryland: Lomond Books, 1979) 275.

Hardy, T. " The lntemet and the Law: Copyright and "New-Use" Technologies" (1999) 23 Nova L. Rev. 657.

Hayhurst, S. W.L. "Copyright and the Copying Machine: the Amstrad Case" (1986) Can Bus. L.J. 3313, Shemel 8 W. Krasilovsky, This Business of Musk (New York: Billboard Publication, 1985).

Hayhurst, W.L. "Copyright and the Copying Machine" (1984) Can. Bus. L.J. 129.

Hendemn, G. F. "Canadiin Copyright Law in the Context of American- Canadian Relations1'(1977) 35 C.P.R (24) 67.

Hitchcock, P. D. "Home Copying and Authorkation" 67 C. P.R. (2d) 17.

Holt, C. "Photocopiers" online: Xeros Corporation chttp:/~.sciam.com/l096issW1096worlring.html>(date accessed : 1 September 1999).

Hurst W. '7echnological Change and SbWWy Interpmtaüon" (1968) 2 Wise. L. Rev. 556.

Kerever A, "R6wIutrQn francalse et dM d'auteuf' 141 R.I.D.A. 3.

King Research, Inc "Summary of Library Photocopying in the United States" in G. P. Bush and R. H. Dreyfuss, ed., Technology and CopyriQht (Mt. Airy, Maryland: Lomond Books, 1979) 355. Laberge, Y. " La notion d'auteur et le droit d'auteur au cinéma : aperçu historique, juridique et sociologique " (1997) 38 C. de 0.831.

Leggat, R. " The Beginning of Photography" (1999) online: The Royal Photographic Society 41ttp:/huw. kbnetco.uklrleggat/photdhistorylbeginnin.htm> (last modifed : 11 January 1999).

Line M., 8 Wood, 0. "The Efkt of a LargeScale Photocopying Service on Journal Sales" in G. P. Bush and R. H. Dreyfuss, ed., Technology and Copytfght (Mt. Airy, Maryland: Lomond Books, 1979) 375.

Martin, S. "La copie privée" (1989) 2 C.P.I. 27.

Mafin, S. "La renumeration pour copie privée" (1998) 11 C.P.I. 327.

Maxwell P. "Cable and Copyright: the Victor Belongs to the Spoils" (1974) 12 C.P.R. (2d) 259.

Morgan 0. "Cable, Cornputers, Copyright and Canadian Culture" (1986) 2 I.P.J. 69.

Moyse, P.-E., "La nature du droit d'auteur: droit de propriété ou monopole?" 43 R.D. McGill507.

Nabhan, V. " La photocopie et le droit d'auteur au Canada " (1978) 19 C. de O. 881.

Nabhan, V. " La tdl6vision par câble et le droit d'auteur au Canada" (1981) R.C.D.A. 8.

Nabhan, V. " Les nouveaux moyens de reproduction, papiers, sonores, audiovisuels " (1986) 46 R. du 8.739.

Nabhan, V. " Les nouveâw moyens de tepnidudion, papiers, sonores, audiovisuels " (1986) 46 R. du 8.739. Nabhan, V. "Quelques aspects des problèmes juridiques posés par la vidéoreprodudion : l'affaire Betamax et ses répercussions au Canada " (1980) 1 R.C.DA 7.

Nabhan, V. "Quelques aspects des problèmes juridiques posés par la vidéoproduction: i'affaire Betamaf (1981) 108 R. 1. D. A 25.

O'Connor, M. "Squeezing into tradiinal frames: lntellectual Ploperty Law in the Shadow of the Information Society" (1998) 12 I.P. J. 285

Par& M. "La reproduction de pages ou de parties de journaux w autres @riodiques et la loi du droit d'auteur du Canada" (1983) 4 R.C.D.A. 7.

Pepin, R. " Les appareils vidéo et le droit d'auteur : l'affaire Betamax devant la Court of Appeals " (1983) 14 R.G.D. 449.

Peny, R.-M. "Copyright in Motion Pidures and Other Mechanical Contrivances" 5 C.P.R. (2d) 256.

Quail, M. G. "Digital Samph: Can CoWnght Pmtect Music from the Nurnbers Game?" (1991) 7 1.P.J. 39.

Rago, A R., " The Moral Rights of tfre Am.a ComparahrahveStudy" 7t Di& L. Rev. 93.

Rhodes, R., "PIayers piano" (1998) online : Player Piano Company

Rubinstein, G. "Audio Reeording History and Development" (1999) online : Jones Telecommunications & Multimedia Encyclopedia ~http:l~.d~itaIceritury.~~mlencyddupdatelaudiohd.html#Digitai (Date accessed: 4 September 1999).

Rubinstein, G. "Gutenberg and the Historical Moment in Western Europe" online : Communication and lnfomiation Technologies course (University of Ma ~BubW)

XII sofia. bgicitlintrdprinthislprint-l .htm#Guteriberg> (date accessed : 5 August 1999).

Scheirer, E. "Our Rap Wrth ASCAP (1999) online : kîP3.com ~http:l~.mp3.com/newsl413.htrnl?hpartidel> (last modified: 29 Odober 1999).

Schoenherr, S. E., "Recording Technology History" (1999) online: University of San Diego ~http:llac.acusd.éduR(istorylrecording/notes.htrnb (last modified: 16 August 1999).

Shaw, R.C. "Liœnsing the PhotoCopiet' (1980) 62 C.P.R. 196.

Silvennan, S. "Xerography: the Invention that No One Ever Wanted" online : Useless Information

Skelton, T. "Internet Copyright lnfringement and Service Providers: The Case for a Negotiated Rulemaking Abmative" (1998) 35 San Diego L Rev. 21 9.

Spuqeon, P. "Digital Networks and Copyright: Liœnsing and Accounting br Use-The Rde of Copflght Collectives €volution or Revolution?" (1998) 12 I.P.J. 225.

Tamaro, N. "La bonne lecture d'un mauvais arrët et la mauvaise lecture d'un bon arrêt ou puquoi les auteurs ont 8t4 indûment prives de millions de dollars en redevances pour ta câblodistribution de leurs oeuvres?" (1991) 4 C.P.I. 71.

Van Dyck, C.D. "Past-Fanrvard: A Canadian Perspective on the Betamax Contmversy" (1994) 16 Ottawa L. Rev. 506.

Van Tongeren, E. ''The Effec! of a LargeScale Photocopying Service on Journal Sales" in G. P. Bush and R. H. Dreyfuss, ed., Technobgy and CopyrQht (Mt. Airy, Maryland: Lomond Books, 1979) 387. Vaver, D. "Authot Moral Rights and the Copyright Law Review Committeds Repart: W(h)ither Such Rights New?" Monash U.L. Rev. 284.

Vaver, D. "Authots Moral Rights in Canada" 14 I.I.C. 329.

Verbiest, T. "La révolution du MP3 (1999) online : Jurisçorn

Waite, B. "Electronic Mass Media and Copyright in Canada and the US." (1989) 1 J.P.T.O.S. 269.

Whitlock, N. W. "IT and the Digital Copyright Dilemma" (1999) online: IT Knowfedge Center Article ~http:/PHMiw.intraware.comlmdmkt~ndWitkddig~hthtml> (date accessed: 1 November 1999).

Wilkerson, C. " Long Awaited Solution To The Cable-Copyright Dilemma: The Copyright Act Of 19'16" (1978) 26 Chitty's L. J. 127.

OTHER MATERIAL

A Brief History of Sound and Music Recording (1996) online : Solstice ~http:IEMMlv.solstiœ.demon.co.uklrechisthbn> (Last Hi:19 Augwt 1996).

About Ourseives (1999) online Fraunhofer-Gesellschaft (date accessed: 3 Novernber 1999). ASCAP Infernet Limnsing: FtwquenfrL Asked Questions about Intemet Limnsing (1999) onfine: ASCAP (date accessed: 3 November t 999). Chester F. Cadson (19W1968): the Photacophr online: The Lemelson-MlT Awards Program's Invention Dimension ~http:/~.mit.edulinventCiMMNfinventorsA-Hiwrf~dn.htm8 (date accessed: 2 September 1999).

Chester F. Carlson online Inventure Plaœ (Naüonal lnventors Hall of Fame)

Contracting Parties of Treaties AdminMemi by Wlm, online WlPO Wtp:/hw.Wipo.org/en8/rnain.htm>(date accessed: 22 September 1999).

Ernst F. W. Alexanderson, online lnventun Place (National lnventors Hall of Fame) (date accessed: 20 ALQUS~1999).

Fmnklin Pierce Law Centefs Seventh Blennhl kt8IIectual Propedy System MaW Problems Confemnce: Digital Techndogy and Copyn9ht: A thmat or A Challenge?, (1999) 39 J. L. 8 Tech. 291.

Fmm Gutenberg to Telidon: A Mife Paper on Copy@ht (Ottawa: Consumer and Corparate Affairs Canada, 1984).

History of Cable TebvisrOn, online: Mountain Cablevision ~Mtp:iEHMmr.muntain.wave.calhist~ry~htm(date accessed: 22 August 1999).

History of pieno tWs, online: Orenaail (date accessed: 15 August 1999). Kodak Reports 1999 Third Quarter ResuIts online: Wak ~http:I~.k~dak.wm/USledcorp/inve~torCenterI~aming~ReI~ses.sht~ (Last modied: 18 Octobw 1999). Le lecteur MP3 sonnent4 k glas de i'iiidustrh musicaIe? (1999) online Multimédium c http:l~..mmedium.com~(last modii: 28 October 1998). Net sales in Canada of publishing flmis and exciusive agents, online : Statistics Canada ~http:I~.statcannca/~glishlPgdWPeopWCutturdartsO1a. htm> (date accessed: 3 November 1999). Onliiie Factbook: Hidotka! High&hts online : Xeros Corporation 41ttp:l/www.~erox.m>(date accessed; 2 September 1999).

Origins of Math Pktums-the Kinetomp, online: Library of Congress ~http:llleaming.loc.govIammem/edhtmVedmvhistthtmI#0(date accesmd: 15 August 1999). Private mdk online: Statistics Canada ~hffp:I~.~t~~n.CB)Bngli~h/P~WP8ople/CuItuT818rtS09.htm> (date accessed: 3 November 1999). Pmfile of the film and vide0 disfRbution and videmassette whokmiing industry online: Statistics Canada ~hffp:fhiMMl.statcan.calenglishlP~W8o~~fturdarts1S.h> (date accessed: 3 November 1999). Recarding Studiio T8chnorogV Hi-, mosiline: Trackreccrrd Studio

The Discovery of Motion Pidue Photographing, online: Filrnkultura *http:/~.filmkultura.iif.hu:8080/articles/t8adiin9/di~~0very.en. htmP (date accessed: 15 August 1999).

The Shfi to Pmjectors and the Viiascope (1895-1896) online: Library of Congress ~http:/lieaming.loc.gov/ammem/edhtmUedshift.htmMT~ (date accessed: 15 August 1999).

U.S. Congress, Offce of Technology Assessment, Finding a Balance: Cornputer Softwam, lntellectual Pmperty, and the Challenge of Technological Change, (Washington: U.S. Govemment Printing Onice, 1992). Xemx Research and Technology online: Xerox