copyright in the digital age jennie ness, attorney-advisor office of policy and external affairs,...
TRANSCRIPT
Copyright in the Digital Age
Jennie Ness, Attorney-AdvisorOffice of Policy and External Affairs, USPTO
[email protected] - (571) 272-9300
2
Outline
The origins of CopyrightSubjects of protectionObtaining and maintaining protection
Protected rightsEnforcing CopyrightCopyright in the “digital age”
Are you an author?
Where it all Started . . .
If not authors, then who?Publishers?Employers?Owners of copies?
United States Constitution
“The Congress shall have Power…To promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their Respective Writings and Discoveries.
Article 1, Section 8, Clause 8
7
Pop Quiz!I can make a copy of a work without asking the copyright owner’s permission if –
1. The work is out of print or otherwise unavailable.
2. I paid the contractor to make it (and, in fact, I paid quite a lot).
3. I made at least 7 changes to the work (or I changed 20% of it).
Fact or Fiction?
Two Requirements for Protection
Copyright protection subsists in original work 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.
Originality?
Fixation?
What types of works are protected?
Every production in the literary, scientific and artistic domains; whatever may be the mode of form of
expression.
Copyright protects creative expression, not “ideas.”
Protected Works Not protected
Literary WorksSoftwareMotion PicturesMusical WorksSound RecordingsChoreographic WorksVisual Art, including
Applied ArtDramatic WorksArchitectural Works
Facts or informationProcesses, methods,
formulae, concepts, principles
Lists of ingredients or contents
Names or titlesFamiliar symbols or
designs
13Works from Preexisting Works
Derivative works
Without prejudice to the rights of the author of the underlying work
Must obtain permission of copyright owner in underlying work, where applicable.
An adaptation, translation, arrangement
14Works from Preexisting Works
Compilations
Again, without prejudice to the rights of the author of the underlying works
Again, must obtain permission of copyright owner in underlying works, where applicable.
“which by reason of selection or arrangement of their contents constitute intellectual creations”
15
Who receives protection?
Three categories of authors:IndividualJointWorks Made for HireSpecial note: U.S. government works
16
Ownership of Copyright
Copyright initially belongs to the individual authors
Joint authors are co-owners of, i.e., they have an undivided interest in, the copyright in joint works
Under the work-made-for-hire doctrine, the employer is the owner of the copyright for works created within the scope of employment
Special rules apply to “commissioned works”
17
Who is an employee?
Right to control the manner and means of production
Skill requiredEmployee benefitsTax treatmentRight to assign additional projectsToolsLocation of work
Pop Quiz!I can make a copy of a work without asking the copyright owner’s permission if –
1. There’s no copyright notice.
2. The work is out of print.
3. The work is an unpublished letter in a research library.
Fact or Fiction?
Obtaining and Maintaining Protection
Copyright formalities
20
Securing ProtectionCopyright protection is secured
automatically upon creation (fixation).
No publication or registration is required.
No copyright notice required.
21
Securing Protection – A Myth Debunked
From the U.S. Copyright Office website FAQs:
I’ve heard about a “poor man’s copyright.” What is it?The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.
22
Why Register?
Registration puts others on notice of copyright claim.
Registration (of works of U.S. origin) is required to file suit in federal court.
Registration is prima facie evidence of validity of the copyright and facts in certificate (if made within five years of publication).
23
Why Register?
Registration may be recorded with U.S. Customs and Border Protection (CBP) to help prevent importation of pirated products.Statutory damages and attorney’s fees may be claimed in court suits, provided registration is obtained within three months after publication of the work or prior to infringement of the work. Easier to license work, collect royalties, and enforce your rights outside of court.
24
Registration Process
A copyright owner must: ◦File an application;◦Pay a nominal filing fee ($35 - $65, depending on whether e-filing or paper filing and type of work); and
◦Deposit copies of the work at the Copyright Office
25
Registration
Registration is administered by the U.S. Copyright Office of the Library of Congress
Forms available at www.copyright.gov
Registration does not involve complex examination of applications as for patents and trademarks
26
Notice
No notice is required (for works published on or after March 1, 1989).
Notice may benefit the owner against a supposed “innocent infringer.”
Forms of notice: ©, the word “Copyright,” or the abbreviation “Copr.”, year of publication, and name of the copyright owner.
27
Why Use a Copyright Notice?
It informs the public that the work is protected by copyright;
It identifies the copyright owner;It shows the year of first publication;It defeats an “innocent infringer” defense. TIP: Provide sufficient additional
information so that a third-party knows how to contact you to obtain your permission to use the work.
28
Term of Copyright
For works created on or after January 1, 1978:
Life + 70: In the U.S., copyright subsists from creation and lasts the full life of the author, plus 70 years after the author’s death.
95 Years from Publication: If the author is not a natural person, then copyright lasts 95 years from publication or 120 years from creation, whichever expires first.
29
Pop Quiz! I can do the following without asking the copyright owner’s permission–
1. I am producing a high school play and tickets are free.
2. A DJ plays music in my club, but I don’t charge admission.
3. I’m making a copy of a journal article for my own research files.Fact or Fiction?
A bundle of rights
The “copy” right is actually . . .
Rights split into two categories
“Economic” “Moral”ReproductionDistributionPerformanceDisplayCreate derivative
works
Right of attributionRight to publish
anonymously or pseudonymously
Right of integrity
32
Transfer of Copyright
“Any or all of the copyright owner’s exclusive rights…may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing…. Transfer of a right on a nonexclusive basis does not require a written agreement.”
-- U.S. Copyright Office, Circular 1, page 6
33
Exercise of rights
Many individual authors will exercise their rights collectively through a collective management organization such as ASCAP, BMI, Harry Fox, SoundExchange
In limited cases, statutory licenses are used to remedy market failure.
Infringement
Infringement is the unauthorized or prohibited use of works, infringing the copyright holder’s exclusive rights. In some limited exceptions, unauthorized uses may be permitted.
Exceptions
First sale doctrine; Exceptions for libraries,
archives, and teaching;Certain statutory licenses;TV & radio exceptions;Reproduction for those with
disabilities;Single software copy for
archival purposes.
Fair Use
An exception allowing use for purposes such as:
◦Criticism or comment, ◦News reporting, ◦Teaching, Scholarship or Research.
◦No blanket exemptions!
Fair Use
Four Factor Test: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.
Weighing the Four Factors
Fair Use?
Transformative, Review, criticism, commentary, parody, news, educational, nonprofitLimited creativity, largely factual workSmall amountInsubstantial portionDoes not deprive the copyright owner of income or undermine potential market
39
Weighing the Four Factors
Infringement?
Commercial, for-profit, non-transformative
Highly creative work, unpublished
Large amountThe heart of the workDeprives the copyright owner
of income or undermine potential market
40
Pop Quiz! I can do the following without asking the copyright owner’s permission–
1. I can use a photograph on my web page that I found on another website.
2. I can use cracking software to make a back-up copy of a DVD that I legally own.
Fact or Fiction?
The Digital Age
New technology always confounds copyright: player piano, radio, TV, Betamax, and now the Internet
We attempt to main technological neutrality.
The Digital Age
The Digital MillenniumCopyright Act (1998)
Prohibits circumvention of technological protection measures
Ensures integrity of Rights Management Information
Creates a Notice-and Take Down system for online infringement.
2002: The TEACH Act sets parameters for use of works in distance learning.
43
The Digital Age
Newer challenges:Peer-to-peer file sharing adapts to court casesDigital locker sitesChanging consumer expectations
44
Pop Quiz Answers!
Fact or Fiction?
Are you a copyright owner?
