Transcript TUTORIAL ON COPYRIGHT LAW

TUTORIAL ON COPYRIGHT
LAW
Based on materials prepared by Profs. Pamela
Samuelson & David Post for the Computers
Freedom & Privacy Conference, April 4,
2000
Edited and amended by Mike Godwin, CDT,
for Stockholm ANW, June 2001
WHAT IS “INTELLECTUAL
PROPERTY” (A.K.A. “IP”)?
• Rights in commercially valuable
information permitting owner to control
market for products embodying the
information
• Copyrights for artistic & literary works
(including software)
• Patents for technological inventions (also
including software)
WHAT IS “IP”? (2)
• Trade secrets for commercially valuable secrets
(e.g., source code, Coke formula)
• Trademarks (e.g., Coca Cola, Coke) to protect
consumers against confusion
• Copyright and trademark law are the areas most
likely to have international, civil-liberties
significance on the Internet, and, of the two,
copyright law is more likely to be significant than
trademark law.
ELEMENTS OF ALL IP LAW
• Subject matter to be protected
• Qualifications for protection
– Who can claim
– Procedure for claiming
– Substantive criteria
• Set of exclusive rights (rights to exclude other
people's uses of the IP)
• Limitations on exclusive rights
• Infringement standard
• Set of remedies
ELEMENTS OF COPYRIGHT
• Subject matter: works of authorship
– E.g., literary works, musical works, pictorial works.
NB: software is a “literary work”
• Qualifications:
– Who: the author (but in US, work for hire rule)
– Procedure: rights attach automatically (but US authors
must register to sue; remedies depend on regis.)
– Criteria: “originality” (some creativity); [in US] works
must also be “fixed” in some tangible medium
COPYRIGHT ELEMENTS (2)
Set of exclusive rights (right to exclude others):
–
–
–
–
to reproduce work in copies,
to prepare derivative works, including translations
to distribute copies to the public,
to publicly perform or display the work, or
communicate it to the public (broadcast)
– “moral rights” of integrity & attribution
– some rights to control acts of those who facilitate or
contribute to others’ infringement (e.g., ISPs)
COPYRIGHT ELEMENTS (3)
Limitations on exclusive rights:
–
–
–
–
–
–
Fair use (e.g., Sony Betamax, Acuff-Rose) in US
Fair dealing in UK and Canada
First sale (e.g., libraries, bookstores)
Library-archival copying (e.g., ILL, course reserves)
Classroom performances
Special inter-industry compulsory licenses (e.g., cablenetwork TV)
– Other (e.g., playing radio in fast food joint)
– Constructing functional item from an expressive work
(e.g., building a bicycle from a design)
COPYRIGHT ELEMENTS (4)
• Limitations on exclusive rights: duration
– Berne standard: life + 50 years
– EU & US: life + 70 years; 95 yrs from publication
• Infringement standard: violating exclusive right
(often copying of “expression” from protected
work based on substantial similarity)
• Remedies: injunctions, lost profits, infringers’
profits, “statutory damages,” costs, & sometimes
attorney fees
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“UNCOPYRIGHTABLE”
STUFF
Ledger sheets and blank forms
Rules and recipes
White pages listings of telephone directories
Facts and theories (although particular expressions
of facts or theories are copyrightable)
• Ideas and principles
• Methods of operation/processes
COMPILATIONS AND
DERIVATIVE WORKS
• Creativity in selection and arrangement of data or
other elements = protectable compilation. (There
has to be some small degree of creativity at the
very least -- see, e.g., Feist v. Rural Telephone.)
• Original expression added to preexisting work =
protectable d/w (e.g., novel based on movie)
• Compilation or derivative work copyright doesn’t
extend to preexisting material (e.g., data or public
domain play)
• Use of infringing materials may invalidate
copyright in compilation or derivative work
INTERNATIONAL TREATIES
• Berne Convention for Protection of Literary
& Artistic Works
• Basic rule: “national treatment” (treat
foreign nationals no worse than do own)
• Berne has some minimum standards
(duration, exclusive rights, no formalities)
• WIPO administers treaties, hosts meetings
to update, revise, or adopt new treaties
INTERNATIONAL TREATIES
(2)
• TRIPS (Trade-Related Aspects of
Intellectual Property Rights) Agreement
• Sets minimum standards for seven classes
of IPR, including copyright, that binds
WTO members
• Must have substantively adequate laws, as
well as adequate remedies and procedures
and must enforce effectively
• Dispute resolution process now available
DIGITAL COMPLICATIONS
• Digitized photographs of public domain works
(e.g., Microsoft claims ownership in some)
• Very easy to reselect and rearrange the data in
databases; uncreative databases may be very
valuable; EU has created a new form of IP right in
contents of databases to deal with this. (New right
is analogous to copyright, but not the same as
copyright. Database protection can have civilliberties, freedom-of-inquiry implications. May
affect journalism, scholarship.)
DIGITAL COMPLICATIONS
(2)
• Digital environment lacks geographic
boundaries
• Very cheap and easy to make multiple copies and
disseminate via networks
• Very easy to digitally manipulate w/o detection
DIGITAL COMPLICATIONS
(3)
• Can’t access or use digital information without
making copies. (U.S. courts began this analysis by
stating that even ephemeral RAM or transmission
copies are "copies" regulable under copyright
law.)
• New ways to appropriate information (e.g.,
Motorola violated the law by “stealing” data from
NBA games for sports pager device)
DIGITAL COMPLICTIONS (4)
• People see that much Internet information is
free and expect it all to be (or nearly so).
• Many people think that private copying
doesn’t infringe copyright; much of industry
disagrees. Some in industry would like to
meter access to copyrighted works, so that
all private use is for-pay.
DIGITAL COPYRIGHT
CONTROVERSIES
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Linking, framing
iCraveTV case
Cyberpatrol case - extracting list of sites
RIAA v. Diamond (Rio player case)
UMG Recordings v. MP3.com
Napster case
DeCSS cases
WIPO COPYRIGHT TREATY
(1996)
• Reproduction right applies to digital works
(but no agreement on temporary copies)
• Exclusive right to communicate digital
works to the public by interactive service
• Fair use and other exceptions can apply as
appropriate; new exceptions OK
• Merely providing facilities for
communication not basis for liability
WIPO TREATY (2)
• Tampering with copyright management
information to enable or conceal infringement
should be illegal
• Need for “adequate protection” and “effective
remedies” for circumvention of technical
protection systems
• Treaty not yet in effect, but US has ratified and
implemented through DMCA; Canada has signed;
EU has adopted a directive similar to DMCA (see
Hugenholtz analysis/criticism).
DMCA
• Digital Millennium Copyright Act (1998)
• “Safe harbor” provisions for ISPs based on
notice and takedown
• Section 1201: anti-circumvention rules
• Section 1202: false copyright management
information(CMI)/removal of CMI
DMCA ANTICIRCUMVENTION RULES
• WIPO treaty vague
• Campbell-Boucher bill in US: proposed to outlaw
circumvention of technological protection systems
to enable copyright infringement
• MPAA: wanted all circumvention outlawed
• DMCA: illegal to circumvent an access control,
17 U.S.C. s. 1201(a)(1)
• But 2-year moratorium; LOC study; 7 exceptions
EXCEPTIONS TO
CIRCUMVENTION RULE
• Legitimate law enforcement & national
security purposes
• Reverse engineering for interoperability
• Encryption research and computer security
testing
• Privacy protection & parental control
ANTI-CIRCUMVENTION
DEVICE PROVISIONS
• Illegal to “manufacture, import, offer to public,
provide or otherwise traffic” in
• any “technology, product, service, device, [or]
component”
• if primarily designed or produced to circumvent
technological protection systems, if only limited
commercial purpose other than to circumvent
technological protection systems, or if marketed
for circumvention uses
MORE ON DEVICE RULES
• 1201(a)(2)-- prohibits manufacture etc. of
devices to circumvent effective access
controls
• 1201(b)(1)--prohibits manufacture etc. of
devices to circumvent effective controls
protecting right of cop. owners
• Actual & statutory damages + injunctions
• Felony provisions if willful & for profit
PROBLEMS WITH
ACCESS/CIRCUMVENTION
REGS
• Existing exceptions overly narrow
• No general purpose exception
• Not clear that fair use circumvention is OK
MPAA v. REIMERDES
• CSS is effective access control for DVDs
• DeCSS circumvents it & has no other
commercially significant purpose
• Injunction vs. posting of DeCSS on websites or
otherwise making it available
DVD-CCA v. McLAUGHLIN
• Trade-secret misappropriation case (actually, a
copyright case presented as if a trade-secret case).
• CSS = proprietary information; DVD-CCA took
reasonable steps to maintain secret
• Inference: someone must have violated clickwrap
license forbidding reverse engineering
• Breach of agreement was improper means
• Even though DeCSS on web for 4 months, not to
enjoin would encourage posting trade secret on
Web
DIGRESSION: ELEMENTS OF
TRADE-SECRET LAW
• Information that can be used in business that is
sufficiently valuable & secret as to afford an
economic advantage to the holder
• Outgrowth of unfair competition law
• No “exclusive rights” as such, but protected vs.
use of improper means & breach of confidence
• Independent development & reverse engineering
are legitimate ways to acquire a trade secret
• Relief generally limited to period in which
independent development would have occurred
IMPLICATIONS OF DVD-CCA
• Anti-reverse engineering clauses are common in
software licenses; enforceability much debated
• Judge treat information obtained through alleged
reverse engineering as trade secret
• Johansen didn’t reverse engineer, nor did many
posters, yet held as trade secret misappropriators
• Judge enjoined information that had been public
for several months may be error
CONCLUSION
• Digital technology has posed many difficult
questions and problems for copyright law
• Much remains in controversy; how current cases
are resolved matters a lot
• Possible to build balance into law, but US
“selling” broad anti-circumvention rules.
• Gap in perception about law between copyright
industry and the public
• Easier to see the risks than the opportunities