intellectual property & digital entertainment donald r. simon, j.d./ll.m

Intellectual PropertyIntellectual Property& Digital Entertainment& Digital Entertainment

Donald R. Simon, Donald R. Simon, J.D./LL.M.J.D./LL.M.

Digital EntertainmentDigital Entertainment

Unit 6Unit 6

OutcomesOutcomes

• An overview of the key An overview of the key governmental/industry players in governmental/industry players in shaping content protection.shaping content protection.

• An enhanced understanding of An enhanced understanding of how those players interact with how those players interact with one another.one another.

• How to do business when laws How to do business when laws are unclear. are unclear.


• Copyright’s Major PlayersCopyright’s Major Players::

• CongressCongress

• CR Office (Library of Congress)CR Office (Library of Congress)

• CourtsCourts

• Executive BranchExecutive Branch

• Various industry trade organizationsVarious industry trade organizations

• Various media companiesVarious media companies

• Artists/Authors/MusiciansArtists/Authors/Musicians



• CongressCongress

• Everything flows from Art. I, §8, cl. 8 of Everything flows from Art. I, §8, cl. 8 of the Constitution.the Constitution.

• Under Art. I, Congress has ultimate Under Art. I, Congress has ultimate power to shape and control our nation’s power to shape and control our nation’s CR law.CR law.

• Passes statutes and amends current Passes statutes and amends current law.law.




• Administers CR law.Administers CR law.

• Claims to CR are registered and where Claims to CR are registered and where documents relating to CR may be documents relating to CR may be recorded.recorded.

• Advises Congress on anticipated Advises Congress on anticipated changes in U.S. CR law.changes in U.S. CR law.




• Analyzes and assists in drafting CR Analyzes and assists in drafting CR legislation and legislative reports.legislation and legislative reports.

• Works with the executive branch’s Dept. Works with the executive branch’s Dept. of State, the U.S. Trade of State, the U.S. Trade Representative’s Office, and the Dept. of Representative’s Office, and the Dept. of Commerce in providing expertise in Commerce in providing expertise in negotiations for international IP treaties negotiations for international IP treaties and trade agreements.and trade agreements.



• CourtsCourts

• Interpret CR law.Interpret CR law.

• Can “make” new CR law in the form of Can “make” new CR law in the form of case law.case law.

• Some case law later becomes codified by Some case law later becomes codified by statute.statute.



• Executive BranchExecutive Branch

• Dept. of State, the Dept. of Commerce, Dept. of State, the Dept. of Commerce, and the Office of the U.S. Trade and the Office of the U.S. Trade Representative negotiate with foreign Representative negotiate with foreign countries to improve the CR protection countries to improve the CR protection afforded U.S. authors, either in bilateral afforded U.S. authors, either in bilateral CR treaties or trade agreements or in CR treaties or trade agreements or in multilateral efforts.multilateral efforts.



• Industry Trade Organizations (MPAA)Industry Trade Organizations (MPAA)

• Non-profit trade organization.Non-profit trade organization.

• Administers the film ratings system.Administers the film ratings system.

• Fights against sharing CRed works via Fights against sharing CRed works via peer-to-peer file-sharing networks.peer-to-peer file-sharing networks.

• Lobby Congress for tougher CR laws.Lobby Congress for tougher CR laws.

• Submit amicus briefs in CR court cases.Submit amicus briefs in CR court cases.



• Industry Trade Organizations (RIAA)Industry Trade Organizations (RIAA)

• Non-profit trade organization.Non-profit trade organization.

• High profile Lawsuits against college High profile Lawsuits against college students and parents of file-sharing students and parents of file-sharing children.children.

• Lobby Congress for tougher CR laws.Lobby Congress for tougher CR laws.

• Submit amicus briefs in CR court cases.Submit amicus briefs in CR court cases.



• Industry Trade Organizations (PROs)Industry Trade Organizations (PROs)

• Performing rights organizations.Performing rights organizations.

• ASCAP, BMI, and SESAC.ASCAP, BMI, and SESAC.

• Work with music publishers to acquire Work with music publishers to acquire performance royalties for songwriters.performance royalties for songwriters.



• Various Media CompaniesVarious Media Companies

• Music publishers, record labels, motion Music publishers, record labels, motion picture companies, etc.picture companies, etc.

• Work separately and with one another to Work separately and with one another to create, license, distribute, and sell CRed create, license, distribute, and sell CRed material.material.



• Artists/Authors/MusiciansArtists/Authors/Musicians

• Create, license, distribute, and sell CRed Create, license, distribute, and sell CRed material.material.

• Join industry trade organizations.Join industry trade organizations.

• Call for changes in CR law.Call for changes in CR law.


• When the Law is UnclearWhen the Law is Unclear


• When the Law is UnclearWhen the Law is Unclear::

• We see time and time again where We see time and time again where our nation’s IP laws lag behind our nation’s IP laws lag behind technological innovation.technological innovation.

• Law lags 15-to-20 years behind Law lags 15-to-20 years behind changes in technology.changes in technology.

• Still have rely on the current law—Still have rely on the current law—even if it doesn’t quite fit the new even if it doesn’t quite fit the new situation.situation.


• Orphan WorksOrphan Works::

• Recall that CR protection attaches at Recall that CR protection attaches at the moment of creation.the moment of creation.

• The registration of a CR is optional.The registration of a CR is optional.

• The elimination of registration also The elimination of registration also eliminated a central recording eliminated a central recording location to track and identify CR-location to track and identify CR-holders.holders.



• Consequently, potential users of Consequently, potential users of CRed works, e.g., filmmakers or CRed works, e.g., filmmakers or biographers, must assume that biographers, must assume that many works they might use are many works they might use are CRed.CRed.



• Where the planned use would not be Where the planned use would not be otherwise permitted by law (e.g., by otherwise permitted by law (e.g., by fair use), they must themselves fair use), they must themselves individually investigate the CR individually investigate the CR status of each work they plan to use.status of each work they plan to use.

• The owner of a CRed work cannot be The owner of a CRed work cannot be identified and located by someone identified and located by someone who wishes to make use of the work.who wishes to make use of the work.



• Even where the user has made a Even where the user has made a reasonably diligent effort to find the reasonably diligent effort to find the owner, if the owner is not found, the owner, if the owner is not found, the user faces uncertainty.user faces uncertainty.



• The user cannot reduce the risk of The user cannot reduce the risk of CR liability for such use, because CR liability for such use, because there is always a possibility, there is always a possibility, however remote, that a CR owner however remote, that a CR owner could bring an infringement action could bring an infringement action after that use has begun.after that use has begun.



• Many users of CR works have Many users of CR works have indicated that the risk of liability indicated that the risk of liability for CR infringement is enough to for CR infringement is enough to prompt them not to make use of prompt them not to make use of the work.the work.



• Common obstacles to identifying and Common obstacles to identifying and locating a CR owner:locating a CR owner:

1.1. inadequate information on the work;inadequate information on the work;

2.2. inadequate information about ownership inadequate information about ownership because of a change of ownership or a change because of a change of ownership or a change in circumstances of the owner;in circumstances of the owner;

3.3. limitations of existing CR ownership limitations of existing CR ownership information sources; andinformation sources; and

4.4. difficulties researching CR information.difficulties researching CR information.



• Proposed solutions:Proposed solutions:

1.1. Clear standards for determining which Clear standards for determining which works are covered, whether users used works are covered, whether users used “reasonable efforts” to locate owners, “reasonable efforts” to locate owners, and what actions need be taken.and what actions need be taken.

2.2. CR Office should maintain an online, CR Office should maintain an online, searchable directory for users to identify searchable directory for users to identify proposed uses and for authors to search proposed uses and for authors to search for uses of their works.for uses of their works.




3.3. Users who follow procedures will Users who follow procedures will automatically be immune from suit if automatically be immune from suit if subsequently contacted by a CR owner--subsequently contacted by a CR owner--provided they cease further use.provided they cease further use.




• Two House Bills have been introduced to Two House Bills have been introduced to solve the problem and both have died.solve the problem and both have died.

• One Bill, called “The Public Domain One Bill, called “The Public Domain Enhancement Act,” would have levied a Enhancement Act,” would have levied a $1 tax charged 50 years after the date $1 tax charged 50 years after the date of first publication and every 10 years of first publication and every 10 years thereafter until the end of the CR term.thereafter until the end of the CR term.




• Failure to pay the CR renewal fee on or Failure to pay the CR renewal fee on or before the due date or within a grace before the due date or within a grace period would allow the work to lapse period would allow the work to lapse into the public domain.into the public domain.



• Cost-Benefit Analysis:Cost-Benefit Analysis:

• Balance the benefits of using material in Balance the benefits of using material in a project against the risks that a CR a project against the risks that a CR owner may see the project, identify the owner may see the project, identify the materials, and assert their legal claims.materials, and assert their legal claims.

• Undertaking this analysis must be Undertaking this analysis must be advanced with caution and with careful advanced with caution and with careful documentation.documentation.



• Cost-Benefit Analysis:Cost-Benefit Analysis:

• A CR owner may still hold rights to the A CR owner may still hold rights to the material and may still bring a legal material and may still bring a legal action based on CR infringement.action based on CR infringement.

• Good faith efforts to find the owner can Good faith efforts to find the owner can be helpful, but are not necessarily be helpful, but are not necessarily protection from legal liability.protection from legal liability.

AssignmentsAssignments

• Due by the end of Unit 6:Due by the end of Unit 6:

• Read pp. 51-61 in Read pp. 51-61 in Copyright’s Copyright’s HighwayHighway..

• ““Congressional Aide” AssignmentCongressional Aide” Assignment

• ““ASCAP v. the Government” DTASCAP v. the Government” DT


• ““Congressional Aide” AssignmentCongressional Aide” Assignment::

• Pretend that you are a Congressional Pretend that you are a Congressional Aide for a US Senator who is on a Aide for a US Senator who is on a committee on intellectual property.committee on intellectual property.

• The Senator needs your help to come The Senator needs your help to come up with something for the committee.up with something for the committee.

• Click the icon under “Assignment” in Click the icon under “Assignment” in Unit 6 to find out what the Senator Unit 6 to find out what the Senator needs.needs.



• 2-4 pages double-spaced.2-4 pages double-spaced.

• Viewpoint and purpose should be Viewpoint and purpose should be clearly established and sustained.clearly established and sustained.

• Assignment should have correct Assignment should have correct grammar, punctuation, etc. grammar, punctuation, etc.

• Writing should be well ordered, Writing should be well ordered, logical and unified, as well as original.logical and unified, as well as original.



• Your work should display superior Your work should display superior content, organization, style, and content, organization, style, and mechanics.mechanics.

• Appropriate citation style should be Appropriate citation style should be followed.followed.

• Submit your outline to the Dropbox by Submit your outline to the Dropbox by the end of Unit 6.the end of Unit 6.


• ““ASCAP v. the Government” DTASCAP v. the Government” DT::

• Copyright’s Highway Copyright’s Highway pp. 51-61 pp. 51-61 details a progression of an issue – details a progression of an issue – how to handle piano rolls and protect how to handle piano rolls and protect the people who create the music.the people who create the music.

• This issue moves from the publisher This issue moves from the publisher to the legislature, the courts and to the legislature, the courts and ultimately results in the formation of ultimately results in the formation of ASCAP.ASCAP.


• ““ASCAP v. the Government” DTASCAP v. the Government” DT::

• Do you think this progression of Do you think this progression of events went the way it “should events went the way it “should have”?have”?

• Was the formation of a new agency Was the formation of a new agency inevitable or should any branch of inevitable or should any branch of government along the way taken government along the way taken some other action to curtail it? some other action to curtail it?

OutcomesOutcomes

• An overview of the key An overview of the key governmental/industry players in governmental/industry players in shaping content protection.shaping content protection.

• An enhanced understanding of An enhanced understanding of how those players interact with how those players interact with one another.one another.

• How to do business when laws How to do business when laws are unclear. are unclear.

OutcomesOutcomes

Questions?Questions?

Have aHave aGreat Great Week! Week!

intellectual property & digital entertainment donald r. simon, j.d./ll.m

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