1 copyrights a copyright is a form of protection provided by the laws of the united states and most...

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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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CopyrightsThe 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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CopyrightsCopyrightable 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

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CopyrightsUncopyrightable 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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CopyrightsCopyright 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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CopyrightsImplied 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.

http://legal-dictionary.thefreedictionary.com/License

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CopyrightsPublic 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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CopyrightsFirst-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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CopyrightsFair 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.

http://profs.lp.findlaw.com/copyright/copyright_6.html

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CopyrightsFair 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 purposeb) Whether the copying involves a transformative use of the

originalThe 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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CopyrightsFair 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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@cooey

Transforming news articles into artSarah Lucas (Shine On 1991) – Tate Modern Museum

“Love Letters Building” in Berlin

BBC news article

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CopyrightsFair 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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CopyrightsFair 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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CopyrightsFair 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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CopyrightsFair 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 private2) 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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CopyrightsFair 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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CopyrightsType 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 way.

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CopyrightsCase 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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CopyrightsCase 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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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.

Copyrights: Case Study – Plaintiffs:UMG Recordings, et.al. Defendant: Mp3.com

http://www.riaa.com/news/filings/pdf/mp3board/court_ruling.pdf

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• 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.


KEY FACTS


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• 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.


KEY FACTS


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• 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


RESULTS


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• (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.


RESULTS


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• (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.


RESULTS


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• (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,“


RESULTS


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• (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.


RESULTS


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• (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.


RESULTS


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• 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.


RESULTS


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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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• 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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• 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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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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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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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.

http://law.freeadvice.com/litigation/arbitration/arbitration_defined.htm

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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.

http://law.freeadvice.com/litigation/arbitration/agreement_arbitration.htm

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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.htmhttp://www.spamseminar.com/materials/register-verio.html

http://www.icann.org/registrars/register.com-verio/order-08dec00.htm

1 copyrights a copyright is a form of protection provided by the laws of the united states and most...

Documents

copyright protection

copyright owner

original copyright

copyright act

derivative works

audiovisual works

artistic works

countries copyright