Transcript Document

Copyright in the
Digital Age
Jennie Ness, Attorney-Advisor
Office of Policy and External Affairs, USPTO
[email protected] - (571) 272-9300
 The
origins of Copyright
 Subjects of protection
 Obtaining and maintaining
protection
 Protected rights
 Enforcing Copyright
 Copyright in the “digital age”
Outline
2
Are you
an
author?
Where it all
Started . . .
If not
authors,
then who?
Publishers?
Employers?
Owners
of copies?
United States
Constitution
“The Congress shall
have Power…To
promote the progress
of Science and useful
Arts, by securing for
limited Times to
Authors and Inventors
the exclusive Rights to
their Respective
Writings and
Discoveries.
Article 1, Section 8, Clause 8
Pop Quiz!
1.
2.
3.
I can make a copy of a
work without asking the
copyright owner’s
permission if –
The work is out of print
or otherwise unavailable.
I paid the contractor to
make it (and, in fact, I
paid quite a lot).
I made at least 7
changes to the work (or
I changed 20% of it).
Fact or Fiction?
7
Two Requirements for
Protection
Copyright protection subsists in original
work of authorship fixed in any tangible
medium of expression now known or later
developed from which they can be perceived,
reproduced or otherwise communicated,
either directly or with the aid of a machine
or device.
Originality?
Fixation?
What types of works are
protected?
Every production in the literary, scientific and artistic
domains; whatever may be the mode of form of
expression.
Protected Works
Not protected
Literary Works
 Software
 Motion Pictures
 Musical Works
 Sound Recordings
 Choreographic Works
 Visual Art, including
Applied Art
 Dramatic Works
 Architectural Works


Facts or information
 Processes, methods,
formulae, concepts,
principles
 Lists of ingredients or
contents
 Names or titles
 Familiar symbols or
designs
Copyright protects creative
expression, not “ideas.”
Derivative works
Without prejudice to
the rights of the
author of the
underlying work
 Must obtain
permission of
copyright owner in
underlying work,
where applicable.
 An adaptation,
translation,
arrangement

Works from Preexisting Works
13
Compilations
Again, without
prejudice to the
rights of the author
of the underlying
works
 Again, must obtain
permission of
copyright owner in
underlying works,
where applicable.
 “which by reason of
selection or
arrangement
their
Works
fromofPreexisting
contents constitute

Works
14
Three categories
of authors:
Individual
Joint
Works Made for
Hire
Special note:
U.S. government
works
Who receives protection?
15
Copyright initially belongs to the
individual authors
 Joint authors are co-owners of, i.e.,
they have an undivided interest in, the
copyright in joint works
 Under the work-made-for-hire doctrine,
the employer is the owner of the
copyright for works created within the
scope of employment
 Special rules apply to “commissioned
works”

Ownership of Copyright
16







Right to control the manner and means of
production
Skill required
Employee benefits
Tax treatment
Right to assign additional projects
Tools
Location of work
Who is an employee?
17
Pop Quiz!
I can make a copy of
a work without asking
the copyright owner’s
permission if –
1. There’s no copyright
notice.
2. The work is out of
print.
3. The work is an
unpublished letter in a
research library.
Fact or Fiction?
Obtaining and Maintaining
Protection
Copyright formalities
Securing Protection
 Copyright
protection is secured
automatically upon creation
(fixation).
 No publication or registration is
required.
 No copyright notice required.
20
From the U.S. Copyright Office website
FAQs:
I’ve heard about a “poor man’s
copyright.” What is it?
The practice of sending a copy of your
own work to yourself is sometimes called
a “poor man’s copyright.” There is no
provision in the copyright law regarding
any such type of protection, and it is not a
substituteProtection
for registration.
Securing
–
A Myth Debunked
21
 Registration
puts others on notice of
copyright claim.
 Registration
(of works of U.S. origin)
is required to file suit in federal court.
 Registration
is prima facie evidence
of validity of the copyright and facts
in certificate (if made within five
years of publication).
Why Register?
22
Registration
may be recorded with U.S.
Customs and Border Protection (CBP) to
help prevent importation of pirated
products.
Statutory
damages and attorney’s fees
may be claimed in court suits, provided
registration is obtained within three months
after publication of the work or prior to
infringement of the work.
Easier
to license work, collect royalties,
and enforce your rights outside of court.
Why Register?
23
A copyright owner must:
◦ File an application;
◦ Pay a nominal filing fee ($35 - $65,
depending on whether e-filing or
paper filing and type of work); and
◦ Deposit copies of the work at the
Copyright Office
Registration Process
24
 Registration
is administered by the
U.S. Copyright Office of the Library
of Congress
 Forms available at
www.copyright.gov
 Registration does not involve
complex examination of applications
as for patents and trademarks
Registration
25
 No
notice is required (for works
published on or after March 1, 1989).
 Notice may benefit the owner
against a supposed “innocent
infringer.”
 Forms of notice: ©, the word
“Copyright,” or the abbreviation
“Copr.”, year of publication, and
name of the copyright owner.
Notice
26
It informs the public that the work is
protected by copyright;
 It identifies the copyright owner;
 It shows the year of first publication;
 It defeats an “innocent infringer” defense.
TIP: Provide sufficient additional
information so that a third-party knows
how to contact you to obtain your
permission to use the work.

Why Use a Copyright Notice?
27
For works created on or after January 1,
1978:
 Life + 70: In the U.S., copyright subsists
from creation and lasts the full life of the
author, plus 70 years after the author’s
death.
 95 Years from Publication: If the author is
not a natural person, then copyright lasts
95 years from publication or 120 years
from creation, whichever expires first.
Term of Copyright
28
Pop Quiz!
I can do the following
without asking the
copyright owner’s
permission–
1. I am producing a high
school play and
tickets are free.
2. A DJ plays music in
my club, but I don’t
charge admission.
3. I’m making a copy of
a journal article for
my own research files.
Fact or Fiction?
29
The “copy” right is actually . . .
A bundle of rights
“Economic”
“Moral”
Reproduction
 Distribution
 Performance
 Display
 Create derivative
works


Right of attribution
 Right to publish
anonymously or
pseudonymously
 Right of integrity
Rights split into two categories
Transfer of Copyright
“Any or all of the copyright owner’s
exclusive rights…may be transferred,
but the transfer of exclusive rights is
not valid unless that transfer is in
writing…. Transfer of a right on a
nonexclusive basis does not require a
written agreement.”
-- U.S. Copyright Office, Circular 1, page 6
32


Many individual
authors will exercise
their rights
collectively through
a collective
management
organization such
as ASCAP, BMI,
Harry Fox,
SoundExchange
In limited cases,
statutory licenses
are used to remedy
market failure.
Exercise of rights
33
Infringement is the
unauthorized or
prohibited use of
works, infringing the
copyright holder’s
exclusive rights. In
some limited
exceptions,
unauthorized uses
may be permitted.
Infringement






First sale doctrine;
Exceptions for libraries,
archives, and teaching;
Certain statutory licenses;
TV & radio exceptions;
Reproduction for those with
disabilities;
Single software copy for
archival purposes.
Exceptions
An exception
allowing use for
purposes such as:
◦ Criticism or comment,
◦ News reporting,
◦ Teaching, Scholarship or
Research.
◦ No blanket exemptions!
Fair Use
Four Factor Test:
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.
Fair Use
Fair Use?
Transformative,
Review,
criticism, commentary, parody,
news, educational, nonprofit
Limited creativity, largely
factual work
Small amount
Insubstantial portion
Does not deprive the copyright
owner of income or undermine
potential market
Weighing the Four Factors
Infringement?
Commercial, for-profit, nontransformative
 Highly creative work,
unpublished
 Large amount
 The heart of the work
 Deprives the copyright owner
of income or undermine
potential market

Weighing the Four Factors
39
Pop Quiz!
I can do the following
without asking the
copyright owner’s
permission–
1. I can use a
photograph on my
web page that I found
on another website.
2. I can use cracking
software to make a
back-up copy of a
DVD that I legally own.
Fact or Fiction?
40
The Digital Age
New technology
always confounds
copyright: player
piano, radio, TV,
Betamax, and
now the Internet
 We attempt to
main
technological
neutrality.

The Digital
Millennium
Copyright Act (1998)
 Prohibits circumvention of
technological protection
measures
 Ensures integrity of Rights
Management Information
 Creates a Notice-and Take
Down system for online
infringement.
 2002: The TEACH Act sets
parameters for use of works
in distance learning.
The Digital Age
Newer challenges:
Peer-to-peer file sharing
adapts to court cases
Digital locker sites
Changing consumer
expectations
The Digital Age
43
Pop Quiz Answers!
Fact or Fiction?
44
Are you
a
copyright
Copyright in the Digital Age
Jennie Ness
[email protected]
(571) 272-9300