Earlier this year, at The American Law Institute’s 2021 Annual Meeting, the ALI membership voted to approve the Tentative Draft of Restatement of the Law, Copyright. This was the first time that this project was presented to membership for approval.

The draft, Tentative Draft No. 2, contains the Sections listed below from the Table of Contents. Where indicated, an additional action (a motion approval) was taken at the Meeting before approval of the Section by ALI membership. All approvals by the membership at an Annual Meeting are subject to the discussion at the Meeting and the usual editorial prerogative (to learn more about this approval process, watch our Boskey Motion video).

Please note, § 12 was presented for discussion only (this means that it was not voted on by ALI membership), and Meeting time expired before §§ 27-29 were discussed (read about “What happens at an Annual Meeting” on our FAQ page).

The membership voted to approve §§ 1-9, 11, 13, 14, 16, 19, and 20-26 of the Tentative Draft.

For a free copy of Restatement of the Law, Copyright, Tentative Draft No. 2, please email communications@ali.org

CHAPTER 1, SUBJECT MATTER AND STANDARDS: GENERALLY

§ 1. How Copyright Protection Arises
§ 2. Types of Works Protected
§ 3. Works Incorporating Preexisting Material: Derivative Works
§ 4. Works Incorporating Preexisting Material: Compilations
§ 5. Originality: In General
§ 6. Originality: Independent-Creation Requirement
§ 7. Originality: Minimal-Creativity Requirement
§ 8. Fixation – A motion to amend § 8 to add a new subsection (c) was accepted by the Reporters and passed by the membership. Read the motion.
§ 9. Excluded Subject Matter: Works of the United States Government
§ 11. National-Origin Eligibility

CHAPTER 2, SUBJECT MATTER OF COPYRIGHT: SCOPE OF PROTECTION

§ 12. Copyright that Subsists in a Work Protects Original Expression but Does Not Extend to Ideas or Other Excluded Elements [For Discussion Only; No Vote Taken]
§ 13. Copyright Protects Expression
§ 14. Exclusion of Ideas from Scope of Copyright Protection
§ 16. Exclusion of Facts from Scope of Copyright Protection
§ 19. Pictorial, Graphic, and Sculptural Features in the Design of Useful Articles

CHAPTER 3, INITIAL OWNERSHIP, TRANSFERS, VOLUNTARY LICENSES, AND TERMINATION OF GRANTS

§ 20. Initial Ownership, Transfer, and Licensing of Copyright: Generally
§ 21. Initial Ownership by Sole Authorship
§ 22. Joint Works
§ 23. Ownership of Copyright in a Joint Work
§ 24. Works Made for Hire
§ 25. Transfers of Copyright – A motion to amend § 25 to add a new subsection (f) was accepted by the Reporters with a modification and passed by the membership. The new language reads:

(f) When the owner of copyright in a contribution to a collective work authorizes the contribution’s inclusion in the collective work, “[i]n the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.”
Read the motion as submitted.

§ 26. The Written Instrument Requirement
§ 27. Nonexclusive Licenses [Meeting time expired before discussion.]
§ 28. Law Governing the Interpretation of Transfers and Nonexclusive Licenses [Meeting time expired before discussion.]
§ 29. Statutory Rights to Terminate Transfers and Licenses [Meeting time expired before discussion.]

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Jennifer Morinigo

The American Law Institute

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