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Document Sample
Copyrights
• A copyright is a form of protection provided by
the laws of the United States and most other
countries to those who create what the law refers
to as “original works of authorship”. It is, in
essence, a grant of certain exclusive rights to
authors in order to allow them commercially to
exploit their works.
• Whether in digital form or in print, most
information is automatically protected by
copyright from the moment it is created.
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Copyrights
The Berne Convention
• The Berne Convention,
– is the principle copyright treaty for the Protection of
Literary and Artistic Works, which was signed by 114
countries in July 1995.
– was first adopted at Berne in 1886.
– extends the protection of the countries‟ copyright law to
foreigners whose works are infringed within the borders
of their country.
This protection must last for at least the life of the
author plus 50 years, and must be automatic without the
need for the author to take any legal steps to preserve
the copyright.
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Copyrights
Copyrightable Works
• Literary Works : text-based works such as books, plays
• Databases : collections of data
• Characters : fictional characters such as Superman
• Musical Works : words, music, musical instrument digital interface
(MIDI)
• Sound Recordings : copyrightable regardless of the nature of the
sounds recorded.
• Photographs and Still Images : advertisements, cartoons, charts, comic
strips … (GIF images of any these items are also copyrightable)
• Motion Pictures and Other Audiovisual Works : film, videogame…
• Software
• Compilations and Derivative Works : catalogs, directories, anthologies
…
• Multimedia Works 3
Copyrights
Uncopyrightable Works
• Pure data such as names, addresses
• Facts
• Ideas
• Works prepared by federal government officers
and employees
• Federal statutes (the Copyright Act, for example)
and regulations
• Words, phrases, and titles
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Copyrights
Copyright Infringement
• Anyone who violates any of the exclusive rights of
a copyright owner is an infringer.
• Copyright infringement is determined without
regard to the intent or the state of mind of the
infringer. Even those who infringe a copyright
innocently are liable to the copyright owner. The
making of even a single unauthorised copy may
constitute an infringement.
• A copyright owner can recover actual or, in some
cases, statutory damages from an infringer.
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Copyrights
Implied Licences
• An implied license is one which though not expressly
given, may be presumed from the acts of the party having a
right to give it.
– E-mail messages: By sending the message, the sender arguably
consents to the necessary copying.
– When a user views a Web page, the content of the Web page is
copied onto the RAM of the user‟s computer. Since this conduct
constitutes making a „copy‟, and thus constitutes at least a
technical copyright violation, it must be presumed that the author
who posted material on the Web site granted an implied license to
make such copies.
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http://legal-dictionary.thefreedictionary.com/License
Copyrights
Public Domain
• Copyrightable information is in the public
domain generally only if,
– The original copyright has expired (Copyright
protection lasts for the life of the author plus 50 years)
– The copyright has been abandoned by the
copyright holder, or
– The work was created by the federal
government
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Copyrights
First-Sale Doctrine
• The Copyright Act gives the copyright owner the
exclusive right to distribute the copyrighted work.
After the copyright owner has sold a particular
copy of the work (i.e. made the „first sale‟ of that
copy), it has no right to control further disposition
of that copy by the purchaser. This principle is
known as the first-sale doctrine.
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Copyrights
Fair Use
• The "fair use" of a copyrighted work, including use for
purposes such as criticism, comment, news reporting,
teaching, scholarship, or research, is not an infringement of
copyright. Copyright owners are, by law, deemed to
consent to fair use of their works by others. The Copyright
Act does not define fair use. Instead, whether a use is fair
use is determined by balancing these factors:
– The purpose and character of the use.
– The nature of the copyrighted work.
– The amount and substantiality of the portion used in relation to the
copyrighted work as a whole.
– The effect of the use on the potential market for, or value of, the
copyrighted work.
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http://profs.lp.findlaw.com/copyright/copyright_6.html
Copyrights
Fair Use
The purpose and character of the use:
Courts consider two factors:
a) Whether the copying is for a noncommercial use, as opposed to
a commercial purpose
b) Whether the copying involves a transformative use of the
original
The transformative use is one in which the copied material is
incorporated into another work that has a different purpose or
different character from that of the original, such as work that
adds new expression, meaning, or message to the material
copied from the original work. Copying in an attempt to
duplicate the original and multiply the number of copies is not
transformative use
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Copyrights
Fair Use
• Purpose and character of use:
– Infinity Broadcasting Corp. v. Kirkwood (1998): where the courts
concluded that retransmission of radio broadcast over telephone lines was
not deemed transformative;
Worldwide Church of God v. Philadelphia Church of God (2000): where
the courts noted that copying a religious book to create a new book for
use by a different church was not transformative;
Nunez V. Caribbean International News Corp. (2000): Copying a
photograph that was intended for use in a modelling portfolio and using it
instead in a news article was deemed transformative by the courts. The
use of a photograph in the newspaper transformed it into news, thereby
creating a new meaning or purpose for the work.
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Transforming news articles into art
Sarah Lucas (Shine On 1991)
– Tate Modern Museum
“Love Letters
Building” in Berlin
BBC news article
@cooey
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Copyrights
Fair Use
• Purpose and character of use:
Sony Computer Entertainment America Inc. v. Bleem (2000):
Bleem‟s use of „screen shots‟ from Sony in Bleem‟s
advertisement was fair use as it increased purchasing public‟s
knowledge whilst Sony incurred very little loss of integrity.
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Copyrights
Fair Use
• Purpose and character of use:
Los Angeles News Serv. v. Reuters Television Int'l Ltd.. 149 F.3d
987 (9th Cir. 1998): rejecting the fair use defence where
television news agencies copied copyrighted news footage and
retransmitted it to news organizations
Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522,
1530-31 (S.D.N.Y. 1991) see generally Leval, supra, at 1111:
repetition of copyrighted material that "merely repackages or
republishes the original" is unlikely to be deemed a fair use.
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Copyrights
Fair Use
The nature of the copyrighted work:
Courts consider two factors:
a) Whether the copyrighted work is
published or unpublished
b) Whether the copyrighted work is factual
or creative.
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Copyrights
Fair Use
The amount and substantiality of the portion used:
The greater the portion of a work that is copied, the less likely it is
that the copying will be considered fair use.
In 1984, the Supreme Court recognised that videotaping of television
programs for home use was not transformative and took the entirety of
the copyrighted works, and acknowledged that these facts argued
against a finding of fair use. However, the Court justified a finding of
fair use by the fact that the copying,
1) was private
2) was noncommercial
3) was done to permit the consumer one viewing at a convenient
hour of copyrighted material that was offered to him free of charge
4) caused no appreciable loss of revenue to the copyright owner
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Copyrights
Fair Use
The effect of the use on the potential market
for the copyrighted work:
If copying a portion of another‟s copyrighted
work has no demonstrable effect upon the
potential market for, or the value of, the
copyrighted work, it may be considered a fair use.
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Copyrights
Type of Permissions
• Assignment: You give up the ownership of
copyright. E.g. the sale of a house
• Licence: You temporarily transfer your rights but
retain the ownership of copyright. E.g. leasing a
house
– Exclusive licence: Only the licencee has the right to use
the work in the ways specified in the licence.
Everybody else, including the copyright owner is
prevented using the work in those ways.
– Non-exclusive licence: The copyright owner retains the
right to use the work and may continue to grant similar
licences to others who wish to use the work in the same 18
way.
Copyrights
Case Study
CopyMonsieur has recently asked Skippy the eco-warrior to produce a
compilation of eco-poems, plays and paintings with environmental themes for
the last century (1900-99). Skippy selects 3 poems of his mate Jim, who is an
eco-poet of considerable standing. Skippy has also selected a play by Joe,
who died 20 years ago, about environmental destruction of rain forests in the
1960s. Skippy’s friend, Jenny, is happy for Skippy to use a TV documentary
she produced, about the effect of motorway construction produced by Cynical
TV, for his compilation. Jenny has also found the earliest novel on an
ecological theme by her great grandfather, Jerry, who died about 90 years
ago and Skippy will digitise the novel for his compilation as well.
Describe what kinds of licences and permission CopyMonsieur
will need from Skippy, Jim, Joe, Jenny and Jerry to comply with
the UK Copyright Laws.
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Copyrights
Case Study
Describe the kinds of licences and permission CopyMonsieur will
need from Skippy, Jim, Joe, Jenny and Jerry to comply with the UK
Copyright Laws.
•A licence from Jim and from Joe‟s estate (as he is now deceased)
allowing for the copying, performance and issue to the public of their
poems;
•An assignment (or exclusive licence) from Jenny in respect of the
compilation copyright and the material she has written;
•A licence from Cynical TV in respect of the broadcast; and
•An exclusive licence from Jim in respect of his live performance (this is
protected as a right in a performance, a right analogous to copyright).
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Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
UMG Recordings, Inc and others (the Plaintiffs),
record companies, have filed a lawsuit against
MP3.com (the Defendant) in the U.S. District Court
for the Southern District of New York in May 4,
2000. [UMG Recordings, Inc. v. MP3.Com Inc.]
The Plaintiffs sought an injunction against the
Defendant, MP3.com, as they have violated the
copyrights of UMG Recordings and others.
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http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
KEY FACTS
• On or around January 12, 2000, MP3.com
launched its "My.MP3.com" service, which
advertised that bona fide subscribers could store,
customise, and listen to the recordings contained
on their CDs from any place where they have an
Internet connection. To make good on this offer,
the Defendant purchased tens of thousands of
popular CDs in which the Plaintiffs held the
copyright, and, without authorization, copied their
recordings onto its computer servers so as to be
able to replay the recordings for its subscribers.
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http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
KEY FACTS
• Specifically, in order to first access such a recording, a subscriber to
MP3.com must either "prove" that he or she already owns the CD
version of the recording by inserting his copy of the commercial CD
into his computer CD-Rom drive for a few seconds (the "Beam-it
Service") or must purchase the CD from one of the Defendant's
cooperating online retailers (the "Instant Listening Service").
Thereafter, however, the subscriber could access via the Internet from
a computer anywhere in the world the copy of the Plaintiffs' recording
made by the Defendant.
• Thus, although the Defendant seeks to portray its service as the
"functional equivalent" of storing the CDs of the subscribers, in
actuality the Defendant was re-playing for the subscribers, converted
versions of the recordings it copied, without authorization, from the
Plaintiffs' copyrighted CDs.
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http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
RESULTS
• Defendants argue that such copying is protected by the
affirmative defence of “fair use”. In analysing such a
defence, the Copyright Act specifies four factors that must
be considered:
(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work
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http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
RESULTS
• (1) The purpose and character of the use,
including whether such use is of a commercial
nature or is for nonprofit educational purposes:
– The Defendant does not dispute that its purpose is commercial, for while
subscribers to My.MP3.com are not currently charged a fee, defendant
seeks to attract a sufficiently large subscription base to draw advertising
and otherwise make a profit.
– Here, although the Defendant recites that My.MP3.com provides a
transformative "space shift" by which subscribers can enjoy the sound
recordings contained on their CDs without lugging around the physical
discs themselves, this is simply another way of saying that the
unauthorized copies are being retransmitted in another medium -- an
insufficient basis for any legitimate claim of transformation.
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http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
RESULTS
• (1) The purpose and character of the use,
including whether such use is of a commercial
nature or is for nonprofit educational purposes:
– Here, the Defendant adds no new "new aesthetics, new insights
and understandings" to the original music recordings it copies, but
simply repackages those recordings to facilitate their transmission
through another medium. While such services may be innovative,
they are not transformative.
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http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
RESULTS
• (2) The nature of the copyrighted work :
– The creative recordings here being copied are
"close to the core of intended copyright
protection,“ and, conversely, far removed from
the more factual or descriptive work more
amenable to "fair use,“
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http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
RESULTS
• (3) The amount and substantiality of the
portion used in relation to the copyrighted
work as a whole :
– It is undisputed that defendant copies, and
replays, the entirety of the copyrighted works
here in issue, thus again negating any claim of
fair use.
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http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
RESULTS
• (4) The effect of the use upon the potential market
for or value of the copyrighted work:
– It is the Defendant's activities on their face invade plaintiffs' statutory right
to license their copyrighted sound recordings to others for reproduction.
– The Defendant argues, its activities can only enhance plaintiffs' sales,
since subscribers cannot gain access to particular recordings made
available by MP3.com unless they have already "purchased" (actually or
purportedly), or agreed to purchase, their own CD copies of those
recordings.
– However, any allegedly positive impact of defendant's activities on
plaintiffs' prior market in no way frees defendant to usurp a further market
that directly derives from reproduction of the plaintiffs' copyrighted
works.
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http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
Copyrights:
Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com
RESULTS
• A partial summary judgment of the Court held that the Defendant has
infringed the Plaintiffs' copyrights on the CDs. The court rejected the
Defendant's argument that this was a fair use of the Plaintiffs' sound
recordings. In reaching this conclusion, the court “held that
– The Defendant's use was commercial (the Defendant intended to sell
advertising on its site once it had adequate user traffic) and not
transformative, the protected work was close to the core of those
intended to receive copyright protection (repetition of copyrighted
material that "merely repackages or republishes the original" is
unlikely to be deemed a “fair use”), the Defendant had copied
virtually all of the Plaintiffs' works and by its actions, adversely
impacted the Plaintiffs' ability to license their works in this fashion.
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http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf
Online Service Agreements
• An online contract is a contract
created wholly or in part through
communications over computer
networks.
• Assent by either words or
conduct is mandatory.
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Online Service Agreements
Shrink Wrap Licences:
• Shrinkwrap used in the
licensing of tangible forms of
software sold in packages.
• Frequently, such packaging
states that software use is
subject to the terms of an
enclosed license agreement that
permits buyers objecting to
such terms to return the
software for a refund. Many
courts have found that using
and failing to return such
software are sufficient acts of
assent to bind the user to the
license terms.
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Online Service Agreements
Click Wrap Licences:
• In the case of a shrinkwrap
licence the user has to break a seal
that is on the clear packaging of a
software product he ore she has
bought in order to access the
contents of the package. Once the
seal is broken the user is expected
to use the enclosed computer
program after encountering notice
of the existence of governing
license terms. The 2nd Circuit
Court noted that the breaking of the
seal is regarded by „some courts to
constitute assent to those terms in
the context of tangible software‟
and the Court cited the 7th Circuit
Court earlier.
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Online Service Agreements
Click Wrap Licences:
• The term clickwrap, a kind of online
software licence agreement, has
evolved from the term shrinkwrap
used in the licensing of tangible
forms of software sold in packages.
• Clickwrap is essentially an icon on a
web page which is used to present “
the user with a message on his or her
computer screen, requiring that the
user manifest his or her assent to the
terms of the license agreement by
clicking on an icon. The product
cannot be obtained or used unless and
until the icon is clicked."
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Online Service Agreements
Click Wrap Licences:
• Therefore by analogy, clicking
on a web-page's clickwrap
button after receiving notice of
the existence of license terms
has been held by some courts to
manifest an Internet user's
assent to terms governing the
use of downloadable intangible
software, see, e.g., Hotmail
Corp. v. Van$ Money Pie Inc.,
47 U.S.P.Q.2d 1020, 1025
(N.D. Cal. 1998).
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Click Wrap Licences:
Specht and others v Netscape & AOL
SmartDownload is a program
that makes it easier for its users
to download files from the
Internet
The plaintiffs clicked the
“Download” box to obtain the
software and proceeded to
download the software on to the
hard drives of their computers.
No reference to license terms
appeared at the "Download" box.
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Click Wrap Licences:
Specht and others v Netscape & AOL
The sole reference on this
page to the License
Agreement appears in text
that is visible only if a visitor
scrolls down through the
page to the next screen.
The plaintiffs alleged that
the defendant invaded the
plaintiffs’ privacy by secretly
disseminating personal
information when the
plaintiff used the software
supplied by the defendant
SmartDownload
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Click Wrap Licences:
Specht and others v Netscape & AOL
Court concluded that:
• plaintiffs neither received reasonable notice of the
existence of the licence terms nor manifested
unambiguous assent to those terms before acting on
the webpage‟s invitation to download the plug-in
program;
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Click Wrap Licences:
Specht and others v Netscape & AOL
Court concluded that:
• plaintiffs‟ claim relating to the plug-in program is not subject
to a separate arbitration contained in licence terms governing
use of Netscape owned by Netscape Comms. Corp;
Arbitration: It is a process in
which one or more arbitrators hear
evidence from the parties to a
dispute and then issue an "Award"
that decides who gets what.
39
http://law.freeadvice.com/litigation/arbitration/arbitration_defined.htm
Click Wrap Licences:
Specht and others v Netscape & AOL
Court concluded that:
• the legal doctrine that requires nonsignatories to an arbitration
agreement to arbitrate when they have received a direct benefit
under a contract containing the arbitration agreement does not
apply to a website owner who allegedly benefited when users
employing the plug-in program downloaded files from the
website.
Arbitration Agreement:It is a written contract in
which two or more parties agree to use arbitration, instead
of the courts, to decide certain disputes.
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http://law.freeadvice.com/litigation/arbitration/agreement_arbitration.htm
Click Wrap Licences:
Case Study – Plaintiff:Register.com Defendant: Verio Inc.
Register.com (the Plaintiff), a registrar of Internet
domain names, has filed a lawsuit against Verio, Inc
(the Defendant), which is a provider of Internet
services, in the U.S. District Court for the Southern
District of New York in December 12, 2000.
[Register.com, Inc. v. Verio, Inc.]
The Plaintiff sought an injunction against the
Defendant, Verio Inc, as they have violated the terms
of use, Service Agreement, trademark of Register.com.
http://www.icann.org/registrars/register.com-verio/order-08dec00.htm
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http://www.spamseminar.com/materials/register-verio.html
