Page 58 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 2 Copyright in the Pre-Internet Age: An Intermediary-oriented Approach
An Intermediary-oriented Approach

Edison asserted a copyright infringement claim, but Lubin defended that the films were
184
not photographs and did not have copyright protection. The district court sided with
Lubin on the ground that photographs and films function differently: a single photograph
has independent value and can be experienced as a whole whereas a film requires the rapid
185
display of a series of frames. The Third Circuit Court of Appeals overturned the district
court’s decision and supported Edison’s copyright claim, arguing that by adopting the all-
inclusive concept of ‘any photograph’ under the 1901 amendment that replaced the term
‘photographs’ under the 1865 Act, the Congress had expressed the intent that copyright law
186
should keep pace with technology.
The court’s active approach, applying the old rule (photograph copyright) to the new
distribution channel (film) ensured timely copyright protection in individual cases. However,
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it delayed the time it took for film to be covered by copyright legislation. Film copyright
was not placed on the agenda of the 1909 Act, the most important legislative amendment
after Edison v. Lubin. To the contrary, because the Supreme Court had declined to consider
phonograph recording as ‘copying’ in the sense of copyright found in White-Smith Music, the
Congress crafted a compulsory licence for mechanical reproduction of musical compositions
in the 1909 Act. 188
The court’s active approach continued to address the adaptation of other types of pre-
existing works to films. In the famous Ben-Hur case (Kalem Co. v. Harper Bros.) Kalem
adapted the Harper Bros.’ famous novel Ben-Hur into a film without their authorisation.
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For the sake of securing the copyright owner’s revenue in the new distribution channel
despite the lack of legislative regulation of films, the Supreme Court held that a film is a
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dramatisation of a novel. It analogised films to mirrors because ‘our visual impression…
is caused by the real pantomime of real men through the medium of natural forces, although
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the machinery is different and more complex’.
A more difficult question was how to impose liability on the filmmaker under a law that
did not acknowledge the concept of ‘film’. Although the filmmaker dramatised the novel,
he/she did not publicly perform the dramatised work. It was the exhibitor who physically
displayed the film publicly. However, it would be ridiculous to attach liability to the lowest
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person in the hierarchy. The Court borrowed the ‘contributory infringement’ doctrine

184 Ibid 247.
185 Edison v. Lubin, 199 F. 993, 993 (E.D. Pa 1903).
186 Edison v. Lubin, 122 F. 240, 258 (3d Cir. 1903).
187 Decherney (n 179) 25.
188 Section 2.3.2.
189 Kalem Co. v. Harper Bros., 222 U.S. 55 (1911).
190 Ibid 61.
191 Ibid 61-62.
192 Decherney (n179) 40.

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