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Overview of the Digital Millennium Copyright Act (DMCA)

In 1998, online copyright protection took a huge leap forward with the passage of the Digital Millennium Copyright Act. Heralded at the time of its passing as the possible “death knell” of the internet, DMCA is now credited with ushering in our current understanding of the web and as the precursor to Web 2.0 and all of its innovation.

However, there are intricacies inherent within the DMCA that should be understood in order to ensure compliance. DMCA is broken down into five main categories that each addresses a different type of digital copyright.

1. WIPO Treaty Implementation

World Intellectual Property Organization (WIPO) is a global forum for intellectual property policies, information and cooperation. Two major treaties ratified by the WIPO were implemented under the DMCA.

1. WIPO Copyright Treaty (WCT)

  • This treaty protects the owner’s copyright of intellectual property on both computers and computer databases. This treaty specifically addresses the owner’s rights to these systems in relation to distribution, rental and communication to the public.
  • Each of these rights is exclusive and subject to certain limitations and exceptions.
  • Right of Distribution: Authorizes the owner of the intellectual property to make it available to the public (either the original work or copies of the work) through sale or other transfer of ownership.
  • Right of Rental: Authorizes the owner the right to rent originals or copies of three different types of works to the public (computer programs, cinematographic works and phonographic works) as determined by “local” law of the two contracting parties.
  • This treaty includes language that covers on-demand and interactive/online communication as well.
  • The treaty requires that contracting parties must provide legal remedies that prevent circumvention of any methods to obtain the data illegally. Example: Many Blu-rays now have programming on the disc that prevents them from being copied or “burned” by members of the public. This ensures that “bootleg” or illegal copies of the work do not flood the market and negatively impact sales or quality.

2. WIPO Performances and Phonograms Treaty (WPPT)

This covers the economic and moral rights of performers (actors, singers, musicians, etc.) for both recorded and live performances. It covers the economic rights for producers of phonograms. “Phonogram” is essentially a term for a sound recording, which is embodied in a phonorecord.

Performers’ and producers’ rights are protected under some combination of the following provisions:

  • Right of Reproduction: Authorizes direct or indirect reproduction of a phonograph in any manner or form.
  • Right of Distribution: See listing under WCT above.
  • Right of Rental: See listing under WCT above.
  • Right of Making Available: Authorizes the ability to make available to the public by wired or wireless means any phonograph or performance. Includes provisions for on-demand or interactive streaming of content available through the internet.
  • Right of Broadcasting
  • Right of Communication to the Public
  • Right of Fixation: Once a work has become fixed (written down or recorded), distribution of that recording is subject to copyright protection under the Right of Fixation.
  • When it comes to any recorded or broadcast performances (such as films or musical recordings), performers’ economic rights are protected in four key areas: for right of reproduction, right of distribution, right of rental and right of making available.
  • For live performances, performers’ economic rights are protected in the following areas: right of broadcasting, right of communication to the public and right of fixation.
  • For both live and recorded performances, the treaty also protects their moral rights; this is the right to be identified as the performer and to object to any negative modification, mutilation or distortion that would be negative to the performer’s reputation.
  • Producers of phonograms’ economic rights are protected under the treaty in the following areas: right of reproduction, right of distribution, right of rental and right of making available.
  • The treaty also requires that both performers and producers enjoy equitable remuneration if a recording is used for commercial purposes.
  • The terms of this protection must be for at least 50 years.

2. Online Copyright Infringement Liability Limitation

This limits the liability of Internet Service Providers (ISP) if their members are found to be infringing upon another’s copyright, as long as they meet certain requirements. They must also have protocols in place for when they receive a notification of infringement claim from a copyright holder or the copyright holder’s agent.

This basically means that, while an internet provider is not held liable for the intellectual property violations of those who use their internet, they must have a process in place for the efficient revision and takedown of copyrighted materials.

3. Computer Maintenance or Repair

Allows for computer repair people to make copies of programs or other diagnostic software for the express purpose of fixing a computer problem. When the fix has been applied, the copied program must be deleted.

4. Miscellaneous Provisions

Covers an assortment of miscellaneous provisions, including:

  • Added copy for broadcasters provisions, including certain statutory licenses
  • Added provisions to facilitate distance learning
  • Added provisions to assist libraries with keeping phonorecords of sound recordings
  • Added provisions relating to collective bargaining and the transfer of movie rights

5. Protection of Certain Original Designs

Primarily made considerations for vessel hull designs, since they were not previously covered under copyright law.

Conclusion

In the digital age, copyright protection has become trickier and much harder to monitor, especially for copyright holders who are small businesses or retain a small staff. It’s important to know and understand provisions made in the DMCA, so that if you feel your copyright is in danger, or if you are being unfairly targeted for copyright infringement, you can best understand how to protect yourself.

 
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