Transcript Copyright Laws

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LAWS
COPYRIGHT
THE U.S. COPYRIGHT ACT
 These exclusive rights are dif ferent from the rights given to a
person who merely owns a copy of the work. For example,
when a person purchases a book at a bookstore, they have
received a property right in a copy of a copyrighted work
(namely, the book). The book owner may then resell the book,
or even destroy it, since they own the book. However, the book
owner may not make any copies of the book, since the right to
copy a work is one of the exclusive rights granted under the
Copyright Act. This distinction allows a copyright owner to sell
copies of a work, or even the original work itself (such as a
sculpture), without forfeiting her rights under the Copyright
Act.
THE COPYRIGHT ACT GRANTS FIVE RIGHTS
 the right
 the right
work;
 the right
public;
 the right
and
 the right
to reproduce the copyrighted work;
to prepare derivative works based upon the
to distribute copies of the work to the
to perform the copyrighted work publicly;
to display the copyrighted work publicly.
REPRODUCTION:
 The reproduction right is perhaps the most important right
granted by the Copyright Act. Under this right, no one other
than the copyright owner may make any reproductions or
copies of the work
 It is not necessary that the entire original work be copied for
an infringement of the reproduction right to occur. All that is
necessary is that the copying be "substantial and material."
DERIVATIVE WORKS:
 The right to make a derivative work overlaps somewhat with
the reproduction right. According to the Copyright Act, a
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.
 A derivative work usually involves a type of transformation,
such as the transformation of a novel into a motion picture. In
the computer industry, a second version of a software
program is generally considered a derivative work based upon
the earlier version.
DISTRIBUTION:
 The distribution right grants to the copyright holder the
exclusive right to make a work available to the public by sale,
rental, lease, or lending. This right allows the copyright holder
to prevent the distribution of unauthorized copies of a work.
In addition, the right allows the copyright holder to control the
first distribution of a particular authorized copy. However, the
distribution right is limited by the "first sale doctrine", which
states that after the first sale or distribution of a copy, the
copyright holder can no longer control what happens to that
copy.
PUBLIC PERFORMANCE:
The public performance right allows the
copyright holder to control the public
performance of certain copyrighted works.
 literary works,
 musical works,
 dramatic works,
 choreographic works,
 pantomimes,
 motion pictures, and
 audio visual works.
PUBLIC DISPLAY :
 The public display controls the public "display" of a
work. This right is limited to the following types of
works:
 literary works;
 musical works;
 dramatic works;
 choreographic works;
 pantomimes;
 pictorial works;
 graphical works;
 sculptural works; and
 stills (individual images) from motion pictures and other audio
visual works.
WHAT IS CONSIDERED PUBLIC?
 Under the public performance right, a copyright holder is
allowed to control when the work is performed "publicly." A
performance is considered "public" when the work is performed
in a "place open to the public or at a place where a substantial
number of persons outside of a normal circle of a family and its
social acquaintances are gathered." A performance is also
considered to be public if it is transmitted to multiple locations,
such as through television and radio.
 The public performance right is generally held to cover
computer software, since software is considered a literary work
under the Copyright Act. In addition, many software programs
fall under the definition of an audio visual work. The application
of the public performance right to software has not be fully
developed, except that it is clear that a publicly available video
game is controlled by this right.
FAIR USE
 The doctrine of fair use developed over the year s as cour ts tried to
balance the rights of copyright owners with society's interest in
allowing copying in cer tain, limited circumstances. This doctrine has at
its core a fundamental belief that not all copying should be banned,
par ticularly in socially impor tant endeavor s such as criticism, news
repor ting, teaching, and research.
 Although the doctrine of fair use was originally created by the judiciar y,
it is now set for th in the Copyright Act. Under the Act, four factors are
to be considered in order to determine whether a specific action is to
be considered a "fair use." These factor s are as follows:
 the purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes;
 the nature of the copyrighted work;
 the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
 the effect of the use upon the potential market for or value of the copyrighted
work.
EXAMPLE:
 First Factor (purpose and character of the use): In
analyzing the first factor, the copying party used the
quotations in a for-profit newspaper (and therefore
the use was for commercial gain). Generally, this
would mean that the first factor weighs in favor of
finding no fair use. However, the fact that the
purpose of the use was to review or criticize the work
is a fact favorable to a finding of fair use. While it is
not clear from examining the statute, the later fact is
probably more important than the first, meaning that
the first factor set forth in the Copyright Act should
weigh toward a finding of fair use .
EXAMPLE
 Second Factor (nature of the copyrighted work): In
analyzing the second factor in our example, a novel
is one of the premier examples of a work which
should be protected by copyright law. As a result, the
second factor weighs toward a finding of no fair use.
If the novel had not yet been published, this would
be even more important. It can be difficult to prove
fair use in the quotation of an unpublished work.
However, it is not impossible, since the unpublished
status of a work is only one element in the fair use
analysis.
EXAMPLE
 Third Factor (amount and substantiality taken): As
for the third factor, only short passages from the
novel were included in the review. This generally
means that the third factor is analyzed in favor of a
finding of fair use. However, the "quality" of the
portion taken is analyzed under this factor as well as
the "quantity." It is possible that these short
passages are the most important part of the novel. If
this were the case, this third factor might lead to a
conclusion of no fair use.
EXAMPLE
 Fourth Factor (ef fect on potential market for protected work):
Finally, the fourth factor should be considered in our example.
Courts have stated that this is the most important factor in
the fair use analysis. In this case, the negative review would
clearly impact the potential market for or value of the
copyrighted work. However, courts have stated that this factor
is to look only at the portion taken to analyze the ef fect on
the potential market, and not at any negative comments
contained in a review. Thus, the question is whether the
inclusion of the short passages in the newspaper would af fect
the market for the novel. When only short passages are
involved, courts have generally held that there is no market
ef fect, and this factor should be analyzed in favor of a finding
of fair use.
MORE INSTANCES OF FAIR USE
 Nonetheless, there are some traditional activities which have been
used to illustrate when the fair use doctrine would apply. These
activities include:
 small excerpts in a review or criticism for purposes of illustration or comment;
 a parody which incorporates some elements (but not all) of the work being
parodied;
 quotations from a speech, address, or position paper in a news report; and
 limited copying made by a student for academic work.
 In the context of computer technologies, the fair use doctrine is of ten
used in the context of rever se engineering. Under trade secret
principles, it is generally accepted to "reverse engineer" a product to
determine how the product works. Rever se engineering may involve
analyzing circuit board layouts, "peeling" back a integrated circuit chip,
or decompiling computer sof tware. However, it is impossible to
decompile sof tware and then analyze the results without making a copy
(or a derivative work) of the sof tware. Cour ts have sometimes held that
the making of these copies in the context of reverse engineering is a
fair use and is not copyright infringement .
CREATED ON OR AFTER JANUARY 1,
1978:
 This is governed by statutory section 17 USC 302. According
to this section, a work that is created (fixed in tangible form
for the first time) on or after January 1 , 1978 is ordinarily
given a term enduring for the author's life, plus an additional
70 years after the author's death. In the case of "a joint work"
prepared by two or more authors that was not a "work made
for hire," the term lasts for 70 years after the last surviving
author's death. For works made for hire, and for anonymous
and pseudonymous works (unless the author's identity is
revealed in Copyright Of fice records), the duration of copyright
will be 95 years from publication or 120 years from creation,
whichever is shorter.
CREATED AND PUBLISHED, OR
REGISTERED BEFORE 1978:
 This is governed by statutory section 17 USC 304. Under the law
in effect before 1978, copyright was secured either on the date a
work was published or on the date of registration if the work was
registered in unpublished form. In either case, the copyright
endured for a first term of 28 years from the date it was secured.
During the last (28th) year of the first term, the copyright was
eligible for a second renewal term of an additional 28 years. If
no application was filed for renewal, the work would enter the
public domain after the initial 28 year term.
 The current copyright law has extended the renewal term from 28
to 67 years for copyrights that existed as of January 1 , 1978,
making these works eligible for a total term of protection of 95
years. There is no longer a need to make the renewal filing in
order to extend the original 28 -year copyright term to the full 95
years. However, some benefits accrue to making a renewal
registration during the 28th year of the original term .
PUBLIC DOMAIN/CREATIVE COMMONS:
http://www.creativecommons.org
http://www.gutenberg.org/
http://www.publicdomainpictures.net/
OBTAINING IMAGES FOR A WEB PAGE
 A party is guilty of copyright infringement if they violate one
of the five exclusive rights given to copyright owners under
the Copyright Act. As a result, web page authors should take
care not to copy the work of others. An Internet service
provider can also be found liable for copyright infringement
even when they are not directly engaged in the copying of
protected materials.
 One of the chief attractions of the World Wide Web is the
ability to use graphics to convey information to users. A
sophisticated and subtle graphical presentation is the
hallmark of some of the Web's most popular sites. The
following "rules of thumb" are meant to guide a web page
creator when selecting images for incorporation into a page.
IMAGES
 Creating original images from drawing and painting programs.
The best way to obtain images is to create them in a drawing or
other image creation program. In doing so, however, it is best to
start from scratch rather than from someone else's creation.
Even if an image is significantly altered, the new image may
infringe upon the copyright in the first image by being a
"derivative work."
 Taking images from third-parties. The simple rule is, "Don't steal
someone else's images." The moment an original image (or
string of text) is fixed on a hard drive for the first time, it is
protected by copyright. Any unauthorized copying of a protected
image is an infringement of the creator's copyright, unless the
use falls within one of the very limited exceptions to the
copyright law, such as "fair use." In most cases, it is unlikely
that the incorporation of an image into a commercial web -site
would be considered a fair use .
IMAGES
 Licensed images from the Internet. Some images, such as
Microsoft's "Internet Explorer" logo, may be copied, but only if
the would-be copier accepts the terms of a license defining the
permissible uses of the image. Often such licenses provide that
the copier cannot alter the appearance of the image in any way,
and may use the image as a link only to certain designated sites.
(An example of a logo license agreement can be found on
MSNBC's web-site.)
 Clip-art Libraries Provided with Software. Other sources of
licensed images include clip -art files, such as those provided
with Claris Home Page, Microsoft Front Page, and Adobe
PageMill software. Incorporating clip -art from these libraries into
a page does not violate copyright law, as these images are
licensed to the purchaser of the software for this purpose. To
avoid liability, however, a webmaster must be careful to obey the
terms of all applicable license agreements. For instance, the
license may not allow a user to alter the images in any
significant way.
IMAGES
 Free Images Of f the Internet. Some web sites provide images
that are for use by others. These images may be used in a web
page, as long as the terms proposed by the image creator are
followed. Typically, these sites only require that some type of
credit is given to the author, including a link back to the
author's site. However, there remains the possibility that the
images were misappropriated at some point and were not
original creations of the alleged author. In these cases, use of
the images may infringe the copyright rights of the original
author.
DEVELOPING TEXT FOR A WEB PAGE
 The guidelines for text development are similar to those for
obtaining images. Truly original text, developed by the creator
of the web-site, may be used without copyright concerns. As
with images, appropriating text from third -parties without
permission is illegal, unless there is some substantial "fair
use" justification for the taking. Use of third -party text
pursuant to a license agreement should follow the terms of
the license agreement. As for public domain works, one
should never assume a work is in the "public domain" without
independent investigation.
DEVELOPING JAVA APPLETS,
JAVASCRIPTS, AND ACTIVEX SCRIPTS
 Like text and pictures, it is normally a violation of copyright
law to appropriate scripting or programming from someone
else without permission. Many parties have made their scripts
and applets available for use by the public. In these cases,
use is allowed as long as any requirements set forth by the
programmer are followed.
TRADEMARK CONCERNS
 A trademark is a word, image, slogan, or other device
designed to identify the goods or services of a particular
party. Trademark infringement occurs when one party utilizes
the mark of another in such a way as to create a likelihood of
confusion, mistake and/or deception with the consuming
public. The confusion created can be that the defendant's
products or services are the same as that of the trademark
owner, or that the defendant is somehow associated,
af filiated, connected, approved, authorized or sponsored by
trademark owner. Since most web sites will contain
discussions of products or services, web site developers
should be aware of the potential trademark issues.
TRADEMARKS
 Discussing the trademarks of others. There is nothing inherently
wrong with the identification of other party's products on a web
page by using their trademarks. Nonetheless, some parties have
made inappropriate claims of trademark infringement every time
they see one of their marks on another party's page. Sometimes,
however, a web site does violate the trademarks of another. Web
page designers should avoid trademark usage that might cause
confusion among viewers as to the source or sponsorship of the
web page. Such use might well constitute trademark
infringement.
 Linking to another page through that party's logo or trademark.
It is common to find a link to another web page made through a
company's name, trademark , or logo. In most cases, this type of
link will not cause trademark concerns unless the use causes the
type of confusion discussed above. However, the use of another
party's logo without their permission may be more likely to raise
the type of confusion that creates trademark infringement, since
a graphical logo arguably creates a stronger impression of
affiliation than mere text .
SELECTING/PROTECTING A TRADEMARK
 To select a trademark, one should consider the relative
strength of the mark. Certain marks are stronger than others.
Made up words, such as Kodak or Xerox make the strongest
marks. The next strongest marks are those words that have no
relationship with the products or services on which they are
used, such as APPLE for computers. Marks that are
descriptive in nature, such as CLEARSCREEN for computer
monitors, may be so weak that they will not function as a
trademark until they have been heavily used. After picking a
mark, a trademark search should be performed to make sure
that no one else has rights to the mark.
 Once a mark has been selecting, the best way to protect a
mark (in the United States) is through a federal trademark
registration. If the goods or services sold under the mark will
be sold internationally, trademark registrations in other
countries should also be considered .
LINKING AND FRAMING CONCERNS
 Links between pages are the raison d'etre for the world wide
web. Without widespread linking, the web as we know it would
not exist. Nevertheless, there are questions about the legality
of such connections.
 For those interested in more information on any of the
subjects below, Bitlaw also contains an extended discussion
of linking liability.
LINKS
 Derivative Work Created by Linking -In Images Found on Other
Sites. When the image from another web site is incorporated into
one's own page by means of an unauthorized IMG link, there is
no direct copying by the creator of the link. Nonetheless, when
the visiting browser retrieves the image from the other web site
and combines it with the text on the current page, the creator of
the web site may be guilty of contributory copyright infringement
for creating a derivative work. Consequently, one should not
include links to images found on another party's web site without
first getting permission . {or reading their license stipulations}
 Passing Off. One can also utilize a link to pass off another's work
as one's own. For instance, one could tell the reader to click here
to see some of Brad Bolin's best original comics. The link leads
to a Doonesbury image which is falsely claimed to be original to
Brad Bolin. Consequently, the HREF link also is a reverse passing
off. Reverse passing off by using a link to pass -off another's
work as one's own most likely violates state law governing
competitive business practices .
DEFAMATION
 It should be noted that a link to another's page or image
could be defamatory, and hence subject someone to legal
liability. An example defamatory link would be: " Some<a
href=“http://www.no.man/~bad_man.htm"> idiot </a> killed
my cat, stole my invention, and threatened to destroy the
Internet." The statement itself does not identify the party. The
link itself (assuming it actually linked to someone) provides
the context that turns the statement into defamation.
TRADEMARK INFRINGEMENT
 As explained above, trademark infringement occurs when one
party utilizes the mark of another in such a way as to create a
likelihood of confusion, mistake and/or deception with the
consuming public. The confusion created can be that the
defendant's products or services are the same as that of the
plaintif f, or that the defendant is somehow associated,
af filiated, connected, approved, authorized or sponsored by
trademark owner. As a result, any link that falsely leads the
end user to conclude that the web page author is af filiated,
approved, or sponsored by the trademark owner could lead to
a claim of trademark infringement.
PROBLEMS WITH FRAMES
 Frames are used to subdivide web pages into multiple parts. In
most cases, frames are used only to show multiple pages of
content from the same site at the same time. For example,
frames could be used to divide a browser into two parts, with one
part containing an index for the web site and the second
containing content pages. While this type of use is perfectly
legal, problems can arise if a frame is used to show pages from
two web sites at the same time. The use of frames in this way
can mislead the viewer of a site as to the creator of its content,
possibly raising issues of copyright infringement, passing off,
defamation, and trademark infringement, just like the linking
situations described above. The party that developed the
Totalnews web site found this out by using frames to show other
news organizations sites at the same time as showing their index
and advertisements. The other web sites were not amused, and
filed suit.
COPYRIGHT INFRINGED?