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Requirements for Copyright
Original work of authorship fixed in a tangible
medium of expression, including:
Music, movies, books, art, software, CDs, statues,
restaurant menus, toy animals, cereal boxes
Items excluded from copyright include:
Manufactured goods, any idea or concept, most
useful things (other than software), methods of
operation, names, common phrases, facts, data.
Protection is automatic and at zero cost in US
Some countries outside the US require registration
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Useful Article Doctrine
Copyright does not extend to the useful
application of an idea.
Includes works of artistic craftsmanship insofar as
their form but not their mechanical or utilitarian
aspects are concerned
If can not separate art from utility, courts will
deny protection for the entire work
Lamp incorporating sculpture of woman at base
Integrated circuit – art, but connected to utility
Drawing is protected, circuit itself is not protected
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Lots of Exceptions to Rights
Fair Use – the largest area of exceptions
Right of use for promotion
Record store can play selections to promote sales
of albums without violating copyright
Right to make copy of program to maintain or
repair it, or for archival backup
Otherwise, this would violation reproduction right
Various special statutory limitations on rights
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Reproduction Rights
Right to exclude others from making copies
Most basic of all copyright protections
Exclusive rights to copy or make records, etc.
A copy is “any material object from which,
either with the naked eye or other senses or
with the aid of a machine … the work can be
perceived, reproduced, or communicated”
Phonorecords not originally viewed as copies
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Specific Exceptions for Copying
Transmitting organizations may make copies
of works temporarily for later transmission
Radio, TV stations, Cable companies, Satellite
Even temporary recording is otherwise violation
Computer programs archive or backup copies
Necessary for usage, repair, maintenance of code
Specifically limited ONLY to SOFTWARE (and not
a right which extends to music or video)
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Derivative Works Rights
Right to exclude all others from creating
works based on copyrighted original work
Protects authors from having movies made without
permission of author
Protects against secondary work without consent
Series of Star Wars books based on original concept
Is this protecting expression, or ideas?
Where is the boundary? Grey area – hard to know
Broad definition of derivative work today
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Derivative Work Scope Over
Time
Derivative Work in past did not include
translations under US law
Not same “expression” and not same audience
1853 Stowe case – narrow view of copyright
US Law is much stricter now than previously
Prohibits translations, recordings, arrangements,
dramatizations, films, abridgments, condensations,
fictionalizations, or “any other form in which a work
may be recast, transformed, or adapted”
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Derivative Right Case Example
Artist cuts out pictures from popular book,
and attaches them to ceramic tiles to sell
Fixes original pictures cut out of book to tiles
Adds clear coating to protect and “cures” art
Is this a prohibited derivative work? Why?
Mirage Editions, Inc. vs Albuquerque Art Co (1988)
What other rights or defenses to copyright
violation might the artist claim?
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Distribution Rights & First Sale
Right to distribute copies to the public by sale
or OTHER TRANSFER of ownership
In reality, redundant with reproduction right
and derivative work rights, so not new right
However, limitations to right are important,
and are referred to as “first sale” doctrine
Once copyright owner sells work, many rights
transfer to the new owner, including resale
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First Sale Doctrine
The purchaser of a copyrighted work has the
right to modify and resell works purchased,
so long as illegal COPIES are not made
Any copies of software made for maintenance,
backup, or for operations must be DESTROYED
Derivative works not allowed under this right
But, not always clear what is a derivative work
Leases not a sale, but courts might “reform” a
lease to make it a sale if judge wants to
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First Sale Doctrine Case
Example
Copyright owner sells work of art to new
owner with express restrictions that prohibit
resale or modification of work
New owner ignores restrictions, and makes
modifications and resells work in violation of
the original sale agreement terms
This is NOT a violation of copyright law,
although it does create contract law claim
Copyright transferred via first sale
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Performance Rights Reserved
Powerful right to exclude all others from
publicly performing work without permission
Applies to literary, musical, dramatic, pantomime,
choreographic, movies, & other audiovisual works.
Except for purely pictorial works and sound
recordings, includes all copyrightable works
Exclusion of sound recordings is important
Performers have no rights to royalties, but
composers of original work may have rights
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Limitations on Performance Rights
Some types of performance are allowed:
Face to face educational activities
Religious worship
Non-commercial “charitable” performance
Limited reception on home receivers at no charge
Fairs
Performances by or for the handicapped
Only exempted if performed with no direct or
indirect commercial advantage or fee
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Display Rights
Internet publication of pictures or work
included in display rights of copyright owner
Only the original copyright owner has right to
broadcast images of work
So, if you BUY original of painting, you CAN make
broadcast of painting on the Internet
However, if you BUY a COPY, you do not have
the right to broadcast this copy of work via internet
Right to make image available outside one
location is restricted only to original work owner
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Digital Transmission
Performance
Sound recordings protected in 1995
extension to copyright laws to add new rights
Sound recording owners have full rights to
any digital transmissions of their works (e.g.,
via the internet) and can negotiate fees
Radio stations do NOT have to pay same fees
Rebroadcast of radio via Internet is grey area
Originally broadcast as analog, but digital online
Copyright owners negotiating digital radio terms
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Advanced Digital Technologies
Various laws passed in 1999, including
DMCA
Restrictions on breaking copyright encryption
Limitations on digital copying machine sales
Must have Serial Copy Management System
Protects rights of copyright owners for copies
CRIMINAL PENALTIES for violation of DMCA
Digital watermarking of music & video
Protections of rights may harm innovations
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Copyright Infringement
Infringement NEED NOT BE INTENTIONAL
Liability for “innocent” infringement clearly shown
Even unconscious infringement creates liable
Author thinks work is original, but influenced by work
George Harrison, of Beatles, infringed song by Chiffons
“My Sweet Lord” too much like “He’s So Fine” in style
Harrison did not intend to plagiarize, but he did so
Vicarious Infringement
Hire band & they infringe. Firm hiring also liable.
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Types of Infringement
Direct Infringement – violation of at least one
of rights protected by copyright
Lawsuit against copy center for copying textbooks
Violation of distribution by selling illegal DVDs
Contributory Infringement – inducing,
causing, or materially contributing to the
infringing conduct of another person
Vicarious Infringement – right to control
infringer acts and receives benefit from acts
Napster case and Sony case
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Proof of Infringement
Must establish ownership of work.
Direct evidence seldom is available, and is
usually proven via circumstantial evidence
Remarkable resemblance to original, and
infringer had some contact with original work
Combination creates persuasive presumption
Proof of access and substantial similarity of work
The more works are different, the higher the
standard of proof that is required or needed
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Two Stage Process in Proof
First, did copying occur?
Was borrowing from public domain rather than
work of the copyright holder?
Did copyright owner copy other works, and thus, is
not entitled to protection of “original work?”
Second, was copying illegal or permitted?
Ideas, concepts, method of operation, process
limitation on copyright protections
Fair use exceptions to copyright protections
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Fair Use: “The Right to Copy”
Copyright law is fairly simple in concept, but
fair use is area that complicates application
Defense of fair use admits to copying, but
asserts an allowed or permitted right to copy
Most common in certain traditional contexts:
Education, literary and social criticism, parody,
and 1st amendment activities (e.g. news report)
Balancing tests of various competing policies
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Photocopying and Fair Use
Limitations on what can be copied unclear
NOT specified in statue
Specifically allowed for classroom use under some
certain conditions, but limitations not clear
Rights for libraries to make limited copies
Limited copying for scholarly work
Wholesale copying of entire works “not favored by law”
Brevity and spontaneity character of work copied
“For-profit” copying not likely to be permitted
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Balancing Test of Fair Use Defense
Purpose and character of use, including
commercial nature
Nature of copyrighted work
Proportion that was “taken”
Economic impact of “taking”
Intent and motives of defendant
First amendment interest (USA only)
Balancing test of all above factors jointly
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Typically Competing Interests
Policy issues often are in conflict in applying
fair use defenses, and there are seldom easy
and clear-cut cases that reach the courts
Because of complicated and difficult policy
tradeoffs, fair use has been referred to as “the
most troublesome in the whole law of copyright”
Dellar v. Samuel Goldwyn (1939)
Sony case discussion of fair use rights
Example of Parody and Fair Use
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Registration for Copyright
Not required, but must be done to obtain
“statutory damages” for infringement
Statutory damages often important when it is
hard to show actual damages
If work was “registered” with US Copyright
office BEFORE infringement occurred, and if
work ALSO had copyright notice, THEN
$30,000 USD damages per infringement, and up
to $150,000 USD per willful infringement
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Remedies for Copyright Infringement
Plaintiff can recover BOTH actual damages
AND defendants profits from infringement
As alternative, statutory damages may apply if
copyright is registered in advance and notice given
Court may punish repeat offenders or highly
offensive actions with treble damages
Injunctions also commonly requested,
including preliminary injunctions during trial
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Criminal Liability
In addition to civil law remedies, infringers
may also face criminal liability in some cases
In 1997, “No Electronic Theft Act” signed
Punishes with fines and prison time those who
copy compact discs, VCR tapes, DVDs, or
software CDs worth more than $1000 USD
illegally
Law requires no proof of any commercial gain
Distribution for free is still considered “sale”
Online music copying unclear in this regard