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Introduction to copyright



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  • 1. Introduction to CopyrightLaws and Issues & “Fair Use”
  • 2. HKUST Business School2Requirements for Copyright Original work of authorship fixed in a tangiblemedium of expression, including: Music, movies, books, art, software, CDs, statues,restaurant menus, toy animals, cereal boxes Items excluded from copyright include: Manufactured goods, any idea or concept, mostuseful things (other than software), methods ofoperation, names, common phrases, facts, data. Protection is automatic and at zero cost in US Some countries outside the US require registration
  • 3. HKUST Business School3Useful Article Doctrine Copyright does not extend to the usefulapplication of an idea. Includes works of artistic craftsmanship insofar astheir form but not their mechanical or utilitarianaspects are concerned If can not separate art from utility, courts willdeny protection for the entire work Lamp incorporating sculpture of woman at base Integrated circuit – art, but connected to utility Drawing is protected, circuit itself is not protected
  • 4. HKUST Business School4Lots of Exceptions to Rights Fair Use – the largest area of exceptions Right of use for promotion Record store can play selections to promote salesof albums without violating copyright Right to make copy of program to maintain orrepair it, or for archival backup Otherwise, this would violation reproduction right Various special statutory limitations on rights
  • 5. HKUST Business School5Reproduction Rights Right to exclude others from making copies Most basic of all copyright protections Exclusive rights to copy or make records, etc. A copy is “any material object from which,either with the naked eye or other senses orwith the aid of a machine … the work can beperceived, reproduced, or communicated” Phonorecords not originally viewed as copies
  • 6. HKUST Business School6Specific Exceptions for Copying Transmitting organizations may make copiesof works temporarily for later transmission Radio, TV stations, Cable companies, Satellite Even temporary recording is otherwise violation Computer programs archive or backup copies Necessary for usage, repair, maintenance of code Specifically limited ONLY to SOFTWARE (and nota right which extends to music or video)
  • 7. HKUST Business School7Derivative Works Rights Right to exclude all others from creatingworks based on copyrighted original work Protects authors from having movies made withoutpermission of author Protects against secondary work without consentSeries of Star Wars books based on original concept Is this protecting expression, or ideas? Where is the boundary? Grey area – hard to know Broad definition of derivative work today
  • 8. HKUST Business School8Derivative Work Scope OverTime Derivative Work in past did not includetranslations under US law Not same “expression” and not same audience 1853 Stowe case – narrow view of copyright US Law is much stricter now than previously Prohibits translations, recordings, arrangements,dramatizations, films, abridgments, condensations,fictionalizations, or “any other form in which a workmay be recast, transformed, or adapted”
  • 9. HKUST Business School9Derivative Right Case Example Artist cuts out pictures from popular book,and attaches them to ceramic tiles to sell Fixes original pictures cut out of book to tiles Adds clear coating to protect and “cures” art Is this a prohibited derivative work? Why?Mirage Editions, Inc. vs Albuquerque Art Co (1988) What other rights or defenses to copyrightviolation might the artist claim?
  • 10. HKUST Business School10Distribution Rights & First Sale Right to distribute copies to the public by saleor OTHER TRANSFER of ownership In reality, redundant with reproduction rightand derivative work rights, so not new right However, limitations to right are important,and are referred to as “first sale” doctrine Once copyright owner sells work, many rightstransfer to the new owner, including resale
  • 11. HKUST Business School11First Sale Doctrine The purchaser of a copyrighted work has theright to modify and resell works purchased,so long as illegal COPIES are not made Any copies of software made for maintenance,backup, or for operations must be DESTROYED Derivative works not allowed under this right But, not always clear what is a derivative work Leases not a sale, but courts might “reform” alease to make it a sale if judge wants to
  • 12. HKUST Business School12First Sale Doctrine CaseExample Copyright owner sells work of art to newowner with express restrictions that prohibitresale or modification of work New owner ignores restrictions, and makesmodifications and resells work in violation ofthe original sale agreement terms This is NOT a violation of copyright law,although it does create contract law claim Copyright transferred via first sale
  • 13. HKUST Business School13Performance Rights Reserved Powerful right to exclude all others frompublicly performing work without permission Applies to literary, musical, dramatic, pantomime,choreographic, movies, & other audiovisual works. Except for purely pictorial works and soundrecordings, includes all copyrightable works Exclusion of sound recordings is important Performers have no rights to royalties, butcomposers of original work may have rights
  • 14. HKUST Business School14Limitations on Performance Rights Some types of performance are allowed: Face to face educational activities Religious worship Non-commercial “charitable” performance Limited reception on home receivers at no charge Fairs Performances by or for the handicapped Only exempted if performed with no direct orindirect commercial advantage or fee
  • 15. HKUST Business School15Display Rights Internet publication of pictures or workincluded in display rights of copyright owner Only the original copyright owner has right tobroadcast images of work So, if you BUY original of painting, you CAN makebroadcast of painting on the Internet However, if you BUY a COPY, you do not havethe right to broadcast this copy of work via internet Right to make image available outside onelocation is restricted only to original work owner
  • 16. HKUST Business School16Digital TransmissionPerformance Sound recordings protected in 1995extension to copyright laws to add new rights Sound recording owners have full rights toany digital transmissions of their works (e.g.,via the internet) and can negotiate fees Radio stations do NOT have to pay same fees Rebroadcast of radio via Internet is grey area Originally broadcast as analog, but digital online Copyright owners negotiating digital radio terms
  • 17. HKUST Business School17Advanced Digital Technologies Various laws passed in 1999, includingDMCA Restrictions on breaking copyright encryption Limitations on digital copying machine sales Must have Serial Copy Management System Protects rights of copyright owners for copies CRIMINAL PENALTIES for violation of DMCA Digital watermarking of music & video Protections of rights may harm innovations
  • 18. HKUST Business School18Copyright Infringement Infringement NEED NOT BE INTENTIONAL Liability for “innocent” infringement clearly shown Even unconscious infringement creates liableAuthor thinks work is original, but influenced by workGeorge Harrison, of Beatles, infringed song by Chiffons “My Sweet Lord” too much like “He’s So Fine” in styleHarrison did not intend to plagiarize, but he did so Vicarious Infringement Hire band & they infringe. Firm hiring also liable.
  • 19. HKUST Business School19Types of Infringement Direct Infringement – violation of at least oneof rights protected by copyright Lawsuit against copy center for copying textbooks Violation of distribution by selling illegal DVDs Contributory Infringement – inducing,causing, or materially contributing to theinfringing conduct of another person Vicarious Infringement – right to controlinfringer acts and receives benefit from acts Napster case and Sony case
  • 20. HKUST Business School20Proof of Infringement Must establish ownership of work. Direct evidence seldom is available, and isusually proven via circumstantial evidence Remarkable resemblance to original, andinfringer had some contact with original work Combination creates persuasive presumption Proof of access and substantial similarity of work The more works are different, the higher thestandard of proof that is required or needed
  • 21. HKUST Business School21Two Stage Process in Proof First, did copying occur? Was borrowing from public domain rather thanwork of the copyright holder? Did copyright owner copy other works, and thus, isnot entitled to protection of “original work?” Second, was copying illegal or permitted? Ideas, concepts, method of operation, processlimitation on copyright protections Fair use exceptions to copyright protections
  • 22. Fair Use: “The Right toCopy”22
  • 23. HKUST Business School23Fair Use: “The Right to Copy” Copyright law is fairly simple in concept, butfair use is area that complicates application Defense of fair use admits to copying, butasserts an allowed or permitted right to copy Most common in certain traditional contexts: Education, literary and social criticism, parody,and 1st amendment activities (e.g. news report) Balancing tests of various competing policies
  • 24. HKUST Business School24Photocopying and Fair Use Limitations on what can be copied unclear NOT specified in statue Specifically allowed for classroom use under somecertain conditions, but limitations not clear Rights for libraries to make limited copies Limited copying for scholarly workWholesale copying of entire works “not favored by law”Brevity and spontaneity character of work copied “For-profit” copying not likely to be permitted
  • 25. HKUST Business School25Balancing Test of Fair Use Defense Purpose and character of use, includingcommercial nature Nature of copyrighted work Proportion that was “taken” Economic impact of “taking” Intent and motives of defendant First amendment interest (USA only) Balancing test of all above factors jointly
  • 26. HKUST Business School26Typically Competing Interests Policy issues often are in conflict in applyingfair use defenses, and there are seldom easyand clear-cut cases that reach the courts Because of complicated and difficult policytradeoffs, fair use has been referred to as “themost troublesome in the whole law of copyright” Dellar v. Samuel Goldwyn (1939) Sony case discussion of fair use rights Example of Parody and Fair Use
  • 27. HKUST Business School27Registration for Copyright Not required, but must be done to obtain“statutory damages” for infringement Statutory damages often important when it ishard to show actual damages If work was “registered” with US Copyrightoffice BEFORE infringement occurred, and ifwork ALSO had copyright notice, THEN $30,000 USD damages per infringement, and upto $150,000 USD per willful infringement
  • 28. HKUST Business School28Remedies for Copyright Infringement Plaintiff can recover BOTH actual damagesAND defendants profits from infringement As alternative, statutory damages may apply ifcopyright is registered in advance and notice given Court may punish repeat offenders or highlyoffensive actions with treble damages Injunctions also commonly requested,including preliminary injunctions during trial
  • 29. HKUST Business School29Criminal Liability In addition to civil law remedies, infringersmay also face criminal liability in some cases In 1997, “No Electronic Theft Act” signed Punishes with fines and prison time those whocopy compact discs, VCR tapes, DVDs, orsoftware CDs worth more than $1000 USDillegally Law requires no proof of any commercial gain Distribution for free is still considered “sale” Online music copying unclear in this regard