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Exclusive Rights 383
Shakespeare’s son, who died young). Could the Folger Library sue James for copyright
infringement? [Bonus assignment: Find the lines in the Golan majority opinion
that indicate it would be unconstitutional to withdraw Shakespeare’s works from the
public domain and give copyright in them to the Folger Library.]
Exclusive Rights
17 U.S. Code § 106—Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under
this title has the exclusive rights to do and to authorize any of the
following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted
work;
(3) to distribute copies or phonorecords of the copyrighted work
to the public by sale or other transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual
works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other
audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission.
Remember the naïve young thing who arrived in law school, dewy-eyed and
thinking that property was pretty simple? One either owned something or one did not.
Perhaps that was never you, but in any case exposure to the first year curriculum would
soon have changed that misimpression. In place of the binary, “property or not”
conception, one learns that property is a “bundle of rights” of varying shape and design.
Does one have the right to exclude, to demand compensation but not to exclude, to
alienate, to use for a defined period but not to alienate? What is true of real and personal
property is doubly so for copyright. Just as trademark was not “absolute ownership of
the word” so copyright is not “absolute ownership of the work.”
§ 106 defines the exclusive rights owned by a copyright holder. (§ 1201, which we
will cover later, adds a special set of rights over digital copyrighted works protected by
technical measures that control one’s ability to access or to reproduce the work.) Read
through the rights enumerated. Notice how much is not covered. Reading is not copyright
infringement. Selling one’s used copy of the book is not copyright infringement. Privately
performing a dramatic or musical work is not copyright infringement.
As we learned in the last chapter, by definition, copyright can only cover
copyrightable subject matter. This is the first, vital, restriction of copyright’s ambit. Even
within that subject matter copyright’s reach is restricted to certain actions—”§ 106
significant acts”—copying, distributing, publicly performing and so on. This is the second
limit on copyright’s reach. But even when one has engaged in one of the actions covered
by a § 106 exclusive right, the question is has one actually done enough to violate the right.