Transcript Copyright I

Lecture 5:
Copyright I
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Outline
• History of copyright
• The nature of copyright
• What is copyrightable?
• How are rights divided between author and the
public?
• What special problems does the Internet create?
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History of Copyright
• Dates from 15th century (after invention of printing)
• Originally publisher monopoly (not author)
– Granted by the King. King had right of approval
– Publisher paid a fee
• England (1557)
– Monopoly granted to the Stationer’s Company
• England: Licensing Act of 1662
– Illegal to publish anything without a license
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History of Copyright
• England: Statute of Anne (1710)
– Limited royal copyright monopolies to 28 years
– “Encouragement of learning, by securing the Copies of
Maps, Charts and Books, to the Authors and Proprietors of
such copies”
• U.S. Constitution (1789)
• First U.S. Copyright Act (1790)
– major revisions in 1831, 1870, 1909, 1976
– minor additions in various years, including Digital Millennium
Copyright Act (1998)
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Constitutional Basis
U.S. Constitution “intellectual property clause”, Art. I, §8(8)
“Congress shall have Power …
To promote the Progress of Science and Useful Arts,
By securing for Limited Times
to Authors
and Inventors
PATENT
the exclusive Right
COPYRIGHT
(BOTH
EXCLUSIVELY
to their respective Writings and Discoveries.”
FEDERAL)
“The district courts shall have original jurisdiction of any civil action arising
under any Act of Congress relating to patents, ... copyrights and trade-marks.
Such jurisdiction shall be exclusive of the courts of the states in patent ... and
copyright cases.” 28 U.S.C. §1338
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Constitutional Basis
U.S. Constitution “commerce clause” Art. I, §8(3)
“Congress shall have Power …
TRADEMARK, TRADE SECRET
(JOINT FEDERAL/STATE)
To regulate Commerce
with foreign Nations, and
among the several States, and with the Indian Tribes.”
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What Is Copyrightable?
No originality, no copyright
No authorship, no copyright
“original works 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.”
17 U.S.C. §102 (1976)
Copyright protection begins at the moment of fixation
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What Is Copyrightable?
(1) literary works; (includes software, web pages)
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(.gif, .jpg, .bmp)
(6) motion pictures and other audiovisual works;
(flash, streaming video, virtual reality)
(7) sound recordings; (.wav files, MP3, etc.) and
(8) architectural works.
17 U.S.C. §102 (1976)
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What Is Copyrightable?
• Compilations - “ formed by … assembling ...
preexisting materials ... Coordinated … [so] that the
resulting work as a whole constitutes an original work
of authorship.” (many web pages)
• Collective works - a “number of contributions,
constituting separate and independent works in
themselves, ... assembled into a collective whole”,
e.g. a magazine, anthology, or encyclopedia.
(many websites)
17 U.S.C. §101
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Statutory Interpretation
• Technology can outpace the language of statutes
• Courts must determine the meaning of statutes in
new fact situations
• Principles of statutory interpretation:
– If the statute is unambiguous, it must be applied literally
– If it is ambiguous, determine legislative intent
• Look at transcripts of hearings!
– Every word matters
– Statutory Construction Act, 1 Pa. C.S. §1921
– Particular governs over the general
– Inconsistency: later clause (by date or position) wins!
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Ejusdem Generis (“of the same kind”)
• People v. Bugaiski, 224 Mich. App. 241 (1997). Bugaiski shot a
dog he claimed was attacking his own dog. Criminal
prosecution under the dog law of 1919. Defenses:
– “Any person . . . may kill any dog which he sees in the act of
pursuing, worrying, or wounding any livestock or poultry or
attacking persons, and there shall be no liability on such person, in
damages or otherwise, for such killing.”
– “Livestock” means horses, stallions, colts, geldings, mares, sheep,
rams, lambs, bulls, bullocks, steers, cows, calves, mules, jacks,
jennets, burros, goats, kids and swine, and fur-bearing animals
being raised in captivity.
• Bugaiski claimed his own dog was livestock since it was a “furbearing animal raised in captivity.”
• No. Under ejusdem generis only animals “of the same kind” as
those listed are included. Prosecution can proceed.
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New York Times Co. v. Tasini, 533 U.S. 483
(2001)
• Times paid freelance writers for stories, then later sold copies of
the articles as part of an online database for a fee.
• The writers sued, claiming copyright infringement.
•
“In the absence of an express transfer of the copyright or of any rights
under it, the owner of copyright in the collective work is presumed to
have acquired only the privilege of reproducing and distributing the
contribution as part of [1] that particular collective work, [2] any revision
of that collective work, and [3] any later collective work in the same
series.” 17 U.S.C. 201(c) .
• The Times claimed that the Internet copy was a “revision” under
the statute.
• District court agreed. Reversed on appeal. Supreme Court
affirmed June 25, 2001
• Ejusdem generis says no. Clause 2 must be interpreted in the
context of clauses 1 and 3, which set the upper and lower limits
of the right. Use must be of the same kind, not unrestricted use.
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What Is Copyrightable?
• Derivative works - “based upon one or more
preexisting works,
such as a translation, musical arrangement,
dramatization, fictionalization, motion picture version,
sound recording, art reproduction, abridgment,
condensation,
or any other form in which a work may be recast,
transformed, or adapted.”
17 U.S.C. §101
ported code. C  Java, rehosted systems, gif  jpeg
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What Is Not Copyrightable?
• Words and short phrases such as names, titles, and
slogans
• Blank forms ... designed for recording information
[that] do not in themselves convey information
• Works consisting entirely of information that is
common property containing no original authorship,
e.g. calendars, weight charts, sports schedules, tables
taken from public documents or other common
sources.
• Works of the U.S. Government
37 C.F.R. §202.1 (Code of Federal Regulations)
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What Is Not Copyrightable?
• “Sweat of the brow”, “industrious collection”
• A work assembled through great labor, but without
original authorship, is not copyrightable
• White pages v. Yellow Pages
Feist Publications, Inc. v. Rural Tel. Service Co., 499
U.S. 340 (1991). No “original authorship” in telephone
directory.
• What about databases?
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What Is Not Copyrightable?
“In no case does copyright protection ... extend to any
– idea,
– procedure,
– process,
– system,
– method of operation,
– concept
– principle,or
– discovery,
regardless of the form in which it is described,
explained, illustrated, or embodied in [a] work.”
17 U.S.C. §102
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Copyright Ownership
• Ownership vests originally in the author
• A “work made for hire” is
– a work prepared by an employee within the
“course and scope of employment”;
– a work specially ordered or commissioned ... if
the parties expressly agree in [writing] that the
work shall be considered a work made for hire.
(MUST BE ONE ONE OF 9 SPECIAL TYPES OF WORKS;
DOESN’T INCLUDE SOFTWARE!)
• For a work made for hire the “author” is the employer
(called the “employer for hire”)
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Works Made for Hire
• “Course and scope of employment” means that the
employer is directing the work - very narrow, e.g. fulltime employment.
• “Special commissioning” only applies to nine types of
works, not including software.
• Example: software written by outside consultants is
not owned by the client unless there is an agreement
to assign.
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Copyright Term
• “Mickey Mouse Act” extended copyright terms
• 70 years after death of last surviving author
• Work made for hire:
– 95 years from first publication
– 120 years from creation
17 U.S.C. §302
• Extension held constitutional in Eldred v. Ashcroft,
Jan. 15, 2003)
• Non-renewable
• Upon expiration, work enters the public domain
• Termination of transfers. For a period of 5 years
beginning 35 years after publication, an author can
“take back” his work.
17 U.S.C. §203
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Rights Under Copyright
Copyright includes the right to:
• Reproduce the work (includes copies on disk or RAM)
• Distribute copies by sale, rental, lease or lending
(but owner of an authorized copy may sell, rent, lease or lend it)
• Prepare derivative works
• Perform the work publicly (recite, act out, play, dance)
• Display (or transmit) the work publicly
17 U.S.C §106
These are further divisible (very finely) by contract
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What Is Copyright Infringement?
• “Anyone who violates any of the exclusive rights of
the copyright owner ... or who imports copies or
phonorecords into the United States ... is an infringer
of the copyright.”
17 U.S.C. §501
• Direct infringement
• Contributory infringement
– knowingly inducing, causing, or contributing to the
infringement
• Vicarious liability
– right and ability to control the actions of a direct infringer but
failing to do so + direct financial benefit from infringement
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Testing for Infringement
• There is no copyright infringement without “copying.”
• Therefore: true “independent creation” is a defense
• Direct evidence of copying is rare. So the test is
– access to the original +
– “substantial similarity” between the original and
the “accused work”
• in the eye of the “ordinary observer”
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Fair Use
• Fair use of a copyrighted work …
for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for
classroom use), scholarship, or research,
is not an infringement of copyright.
17 U.S.C. §107
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Fair Use Tests
• purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
• nature of the copyrighted work [e.g. factual v.
fictional];
• amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
• effect [on] the potential market for or value of the
copyrighted work (does it reduce the demand for the
original?)
17 U.S.C. §107
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Fair Use
• Time-shifting
– Recording TV shows for personal use
• Backup
– Making extra copies of software (not for use, but for archive)
• Finding aids
– Indexes, lists of tables of contents, abstracts
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Viewing Web Pages
• Is it a copyright infringement to view a web page?
– Exactly why or why not?
• Is it a copyright infringement to make a copy of a web
page on your hard disk?
– Exactly why or why not?
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Compulsory Licensing
• Author can’t refuse
• User must pay
• In the U.S., compulsory license for phonorecords of
non-dramatic musical works
• Per-copy royalty:
1.55 cents per minute or 8.00 cents, whichever is
greater
• In Japan, extensive compulsory licensing for
educational works, foreign translations, etc.
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Q&A
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Copyright Damages
• Actual damages
– Actual damages ... as a result of the infringement,
and
– Any profits of the infringer ... attributable to the
infringement ... not taken into account in
computing the actual damages
– Copyright owner proves only infringer's gross
revenue, infringer must prove his or her deductible
expenses and the elements of profit attributable to
factors other than the copyrighted work
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Copyright Damages
• Problem: owner may have no damages; infringer may
have no profit
• “Statutory” damages
– Owner may elect in lieu of actual damages,
between $500 and $20,000 per work, fixed by
court
– For willful infringement, up to $100,000
– For “innocent” infringement, as low as $200
– Can be elected any time before final judgment
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Criminal Copyright Penalties
• Any person who infringes a copyright willfully
(1) for purposes of commercial advantage or private
financial gain, or
(2) by the reproduction or distribution [in] 180 days
[of] copies [with] total retail value > $1,000
• Penalties: forfeiture, destruction
– 1 year, $1000 fine
– 5 years + fine if > 9 copies with total retail value > $2,500
– 10 years, second offense
17 U.S.C. §506(a), 18 U.S.C. §2319
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