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Copyright Law Primer
A.R. Pisarra, Ed.
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What is a copyright?
Copyright is a form of intellectual property securing to authors the rights in their original works of authorship.
Under U.S. copyright law, protected works include literary, dramatic, artistic and musical works as well as additional forms of intellectual expression. 17 U.S.C. § 102
Since 1978 Federal copyright protection has extended to both published and unpublished works in any fixed tangible expression.17 U.S.C. § 303
The interests secured to authors in these works generally include the exclusive rights to:
- Reproduce copies of the work;17 U.S.C. § 106(1)
- Prepare derivative worksA 'derivative work' is a work 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 based on their original expression;17 U.S.C. § 106(2)
- Distribute copies of the work by transfer, lease or loan;17 U.S.C. § 106(3) and
- Display or perform the work publicly;17 U.S.C. §§ 106(4)-106(5)
In addition, authors of certain visual works may enjoy "moral rights" protecting against unauthorized modification to the work that will tend to harm the author's "honor or reputation".17 U.S.C. § 106A
Term and Scope of Copyright
Under the current U.S. scheme, the copyright term lasts for the author's life plus an additional 70 years after the author's death. 17 U.S.C. § 302(a) For works made for hire, the duration of copyright lasts 95 years from publication or 120 years from creation, whichever is shorter.17 U.S.C. § 302(c)
There is no such thing as an international copyright. The exclusive rights granted to authors by U.S. copyright law apply only within the U.S., U.S. territories, and U.S. possessions.
The scope of the exclusive rights afforded authors in other jurisdictions is determined by reference to local law.
Provided, national copyright laws have been substantially harmonized over the past three decades. Most nations are signatories to one or more of the international conventions governing the minimum protections afforded to the authors of artistic and literary works.Berne Convention for the Protection of Artistic and Literary Works, 1976; WIPO Copyright Treaty, 1998
As such, the overwhelming majority of nations provide (or at least promise) exclusive rights substantially identical to those of the United States and apply equally to local and foreign works.See, WIPO Directory of National Copyright Depositories
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Copyright Registration & Notice
Copyright does not depend on official procedures. A created work is considered protected by copyright as soon as it exists in tangible form.
However, under U.S. copyright law, the owner of copyright may (but need not) obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by Section 409,17 U.S.C. § 408 together with the application and fee.17 U.S.C. § 409
While registration is not a condition of copyright protection, it is -- except in very limited circumstances -- a prerequisite to pursuing a claim in federal court.17 U.S.C. § 412; See, also, 17 U.S.C. § 411(b);
Similarly, copyright holders may (but need not) affix a notice of copyright on work in which they claim ownership.17 U.S.C. § 401(a)
Notice is not a condition of copyright protection.17 U.S.C. § 401(a) Moreover, notice of the copyright owner's claim to infringed works need not be shown to prove simple infringement.Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984)
Provided, an infringer's state of mind will be considered by the court in calculating actual and statutory damages.17 U.S.C. § 401(d) In addition, knowledge of the infringing nature of the work is a necessary element of criminal and "contributory" infringement17 U.S.C. § 506; Sony Corp., 464 U.S. at 429
If a notice of copyright appears on the published copy to which a defendant had access, then no weight will be given to the defendant's interposition of a defense based on innocent infringement in mitigation of these claims.17 U.S.C. § 401(d)
Copyright Law
The power to grant copyrights is provided to Congress by Article I, Section 8 of the U.S. Constitution which provides:
Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.U.S. Const., Art. I § 8
Until 1978 this power was exercised in favor of published works with States providing a patchwork of common law protection to works falling outside the Federal scheme.
Passed in 1978, the Copyright Revision Act of 197617 U.S.C. § 101 et seq. harmonized several aspects of U.S. copyright law with the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention).The Berne Convention on the Protection of Artistic and Literary Works, 1978 Most significantly, the 1976 Act:
- Preempted common law copyright protection by providing copyright protection for both published and unpublished works;17 U.S.C. § 102; compare Berne Convention, Art. II and
- Extended certain "moral" rights (primarilly the right of integrity) to the authors of visual works.17 U.S.C. § 106A
The 1976 Act set forth most of the current U.S. copyright scheme outlined above. It was further amended in 1998 with the passage of the Digital Millenium Copyright Act (DCMA).105 Pub. Law 304, 1998
The DMCA in turn, harmonized U.S. copyright law with the World Intellectual Property Organization Copyright Treaty (the WIPO Treaty),World Intellectual Property Organization Copyright Treaty, 1998 and added provisions relating to online distribution of infringing materials. Most significantly the DMCA:
- Created civil and criminal provisions relating to circumvention of copy and copyright management systems;17 U.S.C. §§ 1201-1205 and
- Created safe-harbor, as well as notice and takedown provisions relating to online distribution of allegedly infringing materials.17 U.S.C. § 512
The current U.S. copyright law is codified at Title 17 of the United States Code.17 U.S.C. §§ 101 - 1332
Copyright Rights and Remedies
Copyright law provides copyright owners and authors with a number of tools to prohibit unauthorized reproduction and distribution of protected works.
- Infringement
The Copyright Act of 1976 gives copyright owners control over most, if not all, activities of conceivable commercial value.17 U.S.C. § 106 Anyone who violates any of the exclusive rights of the copyright owner is an infringer of the copyright or right of the author.17 U.S.C. § 501
To establish copyright infringement, a claimant must show ownership of the copyright and "copying" by the defendant.See, Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) A claimant may indirectly prove copying by showing:
- that the defendant had access to copyrighted work;
- that the allegedly infringing work is substantially similar to the copyrighted work, and
- that one or more of the copyright owner's exclusive rights is implicated by the defendant's activities.See, Playboy Enterprises v. Frena, 839 F.Supp. 1552 (M.D. Fla. 1993)
If a copyright is infringed, the copyright owner may sue for relief in the appropriate federal court.17 U.S.C. § 501 The copyright owner may ask the court for an injunction to prevent the continuation of the infringement.17 U.S.C. § 502
The copyright owner may also ask the court for an award of the actual damages suffered by him or her as a result of the infringement, as well any profits of the infringer that are attributable to the infringement.17 U.S.C. § 504(b)
In addition, the statute provides an alternative remedy of specific damages which permits copyright owners to set a fixed amount for all infringements involved in the action, with respect to any one work, for which an infringer is liable in an amount not less than $750 or more than $30,000 as the court considers just. 17 U.S.C. § 504(c)
Infringement is a strict liability offense. A plaintiff need prove only ownership and copying._ Ignorance of the copyright owner's claims in the infringed material is not a defense._ However, a defendant's state of mind may be taken into account by the court for purposes of determining actual and statutory damages._
In addition, knowledge is a necessary element of criminal infringement which requires "willful" misappropriation of a protected work._
- Contributory Infringement
"One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another," may be held liable as a contributory infringer._
In order to succeed on a claim of contributory infringement, a claimant must prove:
- The underlying infringement, including the elements of ownership and copying;
- The defendant's acts inducing or materially contributing to the infringing activity; and
- The defendant's knowledge of the infringing nature of the activitity._
A federal district court has recently held that hyperlinking to another page or application can satisfy the requirment of material contribution._ Once a linking webmaster has knowledge of a claim as to the infringing nature of the site or application linked, the individual risks liability for aiding and abetting the infringing activity.
In such instances, copyright owners will, most typically, avail themselves of the "takedown" provisions of the DMCA by notice to the service provider hosting the linking page, resulting in its removal._
- Anti-circumvention
Enacted to satisfy Article 11 of the WIPO Copyright Treaty, (relating to copyright management systems)_ the Anti-circumvention provisions of the Digital Millenium Copyright Act (DMCA) prohibit:
- Circumvention of a technological measure that effectively controls access to a protected work;17 U.S.C. § 1201(a) as well as
- The manufacture, distribution or sale of any technology designed primarilly for the purpose of circumventing such technological measures.17 U.S.C. § 1201(b)
Any person injured by a violation of the prohibitions in section 1201 may bring a civil action in an appropriate United States district court.17 U.S.C. § 1201(a)
An injured party can seek temporary and permanent injunctions to prevent or restrain a violation.17 U.S.C. § 1201(a)
An injured party can also seek actual damages and disgorgement of profits.17 U.S.C. § 1201(a)
As with infringement, the statute provides an alternative remedy of specific damages under which a complaining party can elect to recover an award of fixed damages for each violation of not less than $200 or more than $2,500 as the court considers just.17 U.S.C. § 1201(a)
The statute provides exemptions to the prohibition for (1) law enforcement,17 U.S.C. § 1201(a) (2) encryption research17 U.S.C. § 1201(a) and (3) reverse engineering related to interoperability of computer programs.17 U.S.C. § 1201(a)
However, the scope of these exemptions has been subject to limited judicial construction,Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000) and this ambiguity has had a chilling effect on publication of existing research in a number of instances.
In addition, although the statute specifically reserves the third-party rights of, among others, "fair use",17 U.S.C. § 1201(a) technological measures necessary to excercise these rights are equally barred by the statute.Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000)
- Safe Harbor/Takedown
Enacted as part of the DMCA, 17 U.S.C. § 512 limits the liability of independent service providers for infringing materials transmitted through or hosted on their networks by third-parties.17 U.S.C. § 512
In order to qualify for limited liability Section 512 requires:
- that service providers maintain a designated agent to receive notice of copyright violations,17 U.S.C. § 512(c)(2) and
- that upon receipt of such notice, service providers act expidtiously to remove, or disable access to, the material that is claimed to be infringing.17 U.S.C. § 512(c)(1)(C)(3)
The statute sets forth the requirements for effective notice of claimed violations to be served by a copyright owner on the service provider. Effective notice must include, at least:
- Identification of the copyrighted work claimed to have been infringed17 U.S.C. § 512(c)(3)(A)(ii)
- Identification of the material that is claimed to be infringing and information reasonably sufficient to permit the service provider to locate the material.17 U.S.C. § 512(c)(3)(A)(iii)
In addition, the notice must be accompanied by a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.17 U.S.C. § 512(c)(3)(A)(v)
While styled as a "safe-harbor" Section 512's notice and takedown provisions in fact provide copyright holders with an efficient, extra-judicial tool for policing their online copyright interests.
Section 512(g) limits the providers liability to its subscribers for claims related to takedown.17 U.S.C. § 512(g) And in an abundance of caution, service providers routinely remove material in response to vague and overly broad notices.See, e.g. _____
In order to restore deleted material, an effected subscriber must affirmatively file a counter-notice with the designated agent including:
- A description of the material removed;17 U.S.C. § 512(g)(3)(B)
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification;17 U.S.C. § 512(g)(3)(C) and
- A statement accepting the jurisdiction of the appropriate Federal district court.17 U.S.C. § 512(g)(3)(D)
Finally, Section 512(h) permits copyright owners to request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer.17 U.S.C. § 512(h)
See, sample DMCA notices at http://www.chillingeffects.org/dmca512/notice.cgi.
Limits on Copyright
Writing for the Court in Sony Corp. of America v. Universal City Studios, Inc., Justice Stevens observed:
"The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired."Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984)
Although the scope of rights granted by Section 106 are broad, there are several important limitations to the author or copyright holder's interest in protected works:
- Copyright Term: the interest is limited to a period of time after which the work reverts to the public domain;17 U.S.C. §§ 302-303
- Fair use: protected works are subject to limited "fair use" by third parties;17 U.S.C. § 107
- Certain archive and RAM copies: U.S. Copyright law specifically exclides the copying of computer software from the definition of infringing activity in certain specific instances related to routine operation;17 U.S.C. § 117
- First Sale: under the First Sale Doctrine, the owner of a particular lawfully made copy is entitled to sell or otherwise dispose of the possession of that copy without the authority of the copyright owner.17 U.S.C. § 108
Copyright Term
The interest is limited to a period of time after which the work reverts to the public domain.17 U.S.C. §§ 302-303
The restricted life of the author's exclusive right is an essential element of Article I, Section 8 authorizing the Congressional power to grant copyright.U.S. Const. Art. I § 8 (.. by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries ...)
Under the current U.S. scheme, the copyright term lasts for the author's life plus an additional 70 years after the author's death.17 U.S.C. §§ 302-303 For works made for hire, the duration of copyright lasts 95 years from publication or 120 years from creation, whichever is shorter.17 U.S.C. §§ 302-303
Because new works will not enter the public domain for a extended period, copyright term may seem an insubstantial limitation on copyright. It is important to note however, that a vast number of older works currently distributed under copyright are in fact approaching the end of their protected lives.
Fair Use
"Fair use" permits limited copying of protected works for the purpose of criticism, comment, news reporting, teaching, scholarship or research.17 U.S.C. § 107
Determination as to the scope of "fair use" of copyrighted material is subject to fact sensitive case by case analysis and does not lend itself to a simple formulation. That said, the copyright act provides that factors used in determining whether a particular case constitutes fair use shall include:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;17 U.S.C. § 107
- The nature of the copyrighted work;17 U.S.C. § 107
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole;17 U.S.C. § 107 and
- The effect of the use upon the potential market for or value of the copyrighted work.17 U.S.C. § 107
Archive and RAM Copies
U.S. Copyright law specifically excludes the copying of computer software from the definition of infringing activity in certain specific instances related to normal operation:
1. Copies created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner,17 U.S.C. § 117 and
2. Copies created for archival purposes only.17 U.S.C. § 117
First Sale Doctrine
Under the First Sale Doctrine (as currently embodied at 17 U.S.C. Sec. 108), the owner of a particular lawfully made copy is entitled to sell or otherwise dispose of the possession of that copy without the authority of the copyright owner.17 U.S.C. § 108
While this clearly dictates that the owner of a book may resell, lend or give away that particular copy, rights in software are more complicated._
First Sale and Software First Sale Doctrine applies to an "owner", meaning the beneficiary of the total sale or transfer of rights in the copyrighted material.17 U.S.C. § 108
Software, however, is generally distributed under license rather than by outright sale._ In these instances, the copyright owner can and normally does reserve the right to prohibit subsequent transfer of the license._
The licensee's rights and disabilities are typically spelled out in an End User Licenese (EUL) accompanying the subject software._
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