Introduction to CopyrightLaws and Issues & “Fair Use”
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
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
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
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
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)
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 consentSeries 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
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”
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?
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
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
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
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
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
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
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
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
HKUST Business School18Copyright Infringement Infringement NEED NOT BE INTENTIONAL Liability for “innocent” infringement clearly shown Even unconscious infringement creates liableAuthor thinks work is original, but influenced by workGeorge Harrison, of Beatles, infringed song by Chiffons “My Sweet Lord” too much like “He’s So Fine” in styleHarrison did not intend to plagiarize, but he did so Vicarious Infringement Hire band & they infringe. Firm hiring also liable.
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
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
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
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
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 workWholesale copying of entire works “not favored by law”Brevity and spontaneity character of work copied “For-profit” copying not likely to be permitted
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
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
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
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
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
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