copyright and fair use online presenter: david wittenstein ©2007 dow lohnes pllc jon hart...
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Copyright and Fair Use Online
Presenter:David
Wittenstein
©2007 Dow Lohnes PLLC David Wittenstein [email protected]
What is a copyright?
A property right that protects works of authorship (to be
defined) by giving the owner exclusive rights
(subject to exceptions) to make or authorize several specific
types of uses of the works
Copyright Rights – A Refresher
A copyright is not something you apply for Springs into existence when work is fixed in
any tangible medium of expression Copyright law favors creators to encourage
creation Rights not transferred or licensed are reserved to
the creator by default
Copyright Rights – A Refresher
Vests in the “author” in the moment of creation
Employees’ works are owned by the employer Freelancers and independent contractors
retain copyright in the absence of written agreement
Magic words: “work for hire” and “assignment”
Copyright Rights – A Refresher
What Exclusive Rights Copyright Gives The Owner Make copies of the work Distribute the work Make derivative works Display or perform the work publicly Make digital audio transmissions of the work
What Does Copyright Protect?
Works of authorship, including: Motion pictures and other audiovisual
works, (e.g., TV and radio programs and ads) music, literary works (including newspapers and magazines), drama, choreography, computer programs, websites, artistic works and sound recordings
Certain collective works and other compilations
What’s Not Protected?
Facts…ideas…procedures…discoveries
Material in “the public domain”
Work not protected by copyright…may be freely used by everyone. Includes…
Work by U.S. Government
Statutory formalities not satisfied
Expired copyright term
What’s the Public Domain?
When U.S. Works Pass Into The Public Domain
This page can be viewed at www.unc.edu/~unclng/public-d.htm.
What’s “Fair Use”?
Allows use of copyrighted work without owner’s authorization
Gray area, no bright line rules
The Fair Use Four-Factor Test
1. Purpose and character of use
2. Nature of work copied3. How much used4. Effect on value of work
Fair Use
Fair use: subjective, complex, highly fact-specific
No bright lines
Get permission or rely on a more specific copyright exception
Music Rights and Licensing
Types of Works
Musical Works(intangible; “songs”)
Sound Recordings(tangible; CDs and other physical files in which songs are contained)
Rights Involved
To Perform Publicly
Rights generally licensed by performing rights organizations (ASCAP, BMI, SESAC)
Rights controlled by record labels, but limited to digital audio transmissions, some of which are subject to Section114 statutory license. O-T-A Broadcasting exempt.
To Make and Distribute Copies
Rights controlled by music publishers; licensing through The Harry Fox Agency, Section 115 compulsory license, source licensing
Rights controlled by record labels
Music Licensing Framework
Compulsory Copyright Licenses
Copyright law has several compulsory licensing schemes
For example: the Section 114 Webcasting compulsory license
Posting third party content on websites
Are web publishers liable for user-generated content?
How can web publishers protect themselves?
DMCA (Digital Millennium Copyright Act)
Safe harbor for “service providers,” including online publications
Protection against liability for third-party content
17 U.S.C. Sec. 512(c)
How do web publishers qualify for DMCA safe harbor?
Designate an agent with Copyright Office Simple form $30 fee for each form Can use one form for multiple URLs for
websites owned by the same company http://www.copyright.gov/onlinesp/
Notice and removal
Practical Advice
Make it as easy as possible to reach you Give people a way to complain (click to email;
phone number; mail address) Take complaints seriously Respond quickly Follow 512(c) take-down procedures
* * * * * * Obtain a very broad license for the use of
third party content
AFP v. GoogleThe Unresolved Controversy
Are headlines, leads and thumbnail sized
versions of news photos free for the
taking?
Scraping/Taking of Factual Information, Lists and Databases
The limits of copyright protection
Other possible (non-copyright) claims
Viacom v. YouTube
Will the DMCA safe harbor save YouTube?
Sports Leagues vs. News OrganizationsOnline Battlegrounds
NFL 45 seconds per day of video Online archiving
MLB Statistical updates
NCAA Ejection of newspaper blogger
Other
Copyright and Fair Use Online
Presenter:David
Wittenstein
©2007 Dow Lohnes PLLC David Wittenstein [email protected]