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Copyright Issues in the Digital Environment
Kimberly M. Bonner, J.D.Executive Director, Center for
Intellectual Property University of Maryland University
CollegeOctober 7, 2006 2:30 p.m.
Copyright Protects
• Original Works of Authorship only requires minimum creativity
• Fixed in a Tangible Medium of Expression does not protect ideas, systems, processes or
facts 17 U.S.C. Section 102(a) and (b) Copyright symbol no longer req’d Registration no longer req’d but helpful in
lawsuit
Copyrightable Works
• Literary, musical and dramatic works• Pantomimes and choreographic works• Pictorial, graphic and sculptural works• Sound Recordings• Motion pictures and other AV works• Computer programs• Compilations of works and derivative
works• Architectural works
Copyright Ownership
Author is owner frameworkJoint Ownership Contributors of copyrightable
expression At time of creation:
Intend to create a unified whole Intend to be joint authors
Collective WorksWork for Hire
Not copyrightable
• Ideas, processes, systems• Titles, names, slogans• Facts, news, research• Works in the public domain
Created by government Works with expired copyright terms
Copyright Owner’s Rights
• Reproduce- make copies• Distribute- publish• Public performance• Public display• Derivative works
Copyright Begins and Ends
• Protection begins immediately once original work fixed. Registration of copyright obtains certain legal benefits in litigation. Forms available on US Copyright Office’s webpage.
• Protection ends at the termination of the “protected” period. Protection lasts for the creator’s lifetime plus 70 years. After that term, work goes into the public domain.
Copyright Duration
• Works created on or after 1/1/78Life of the author plus 70 yearsCorporate author –the shorter of
95 years from publication or 120 years from creation
Works published b/n 1923 and 1977 subject to different duration rules
Works published before 1923 in public domain
Copyright Limitations
• Fair Use (107)• Library Copying (108)• First Sale (109 a)• Educational Exemption
face to face 110(1) distance 110(2) TEACH Act
Determining Fair Use (107)
• Purpose and character of the use.• Nature of the copyrighted work.• The extent and substantiality of
the portion used.• The effect on the real or potential
market for or value of the copyrighted work.
Where did fair use originate?
• 1841, Folsom v. March. Justice Story stated that: “in short, we must often, when deciding questions of this sort, look to the nature and objects of the selection made, the quantity of the materials use, and the degree to which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work.”
What is fair use?
• The only limitation on the exclusive rights of the copyright holder.
• Allows use of a “lawfully obtained copy” without the permission of the copyright holder.
• Allows, in most cases, partial use, not use of the entire work.
• It’s purpose is to balance the needs of society against those of the individual.
• Extremely difficult to adjudicate.
First Factor: Purpose and Character
• Yes No• Non-profit
Educational• Teaching• Research• Scholarship• Criticism• Commentary• News reporting
• Commercial Use
• Entertainment• For profit
Second Factor: Nature of work
• Yes No• Fact• Published
• Creative• Fiction• Unpublished
Third Factor: Amount Used
• Yes No• Small amount used Large
amount used
• Not heart of the work Heart of the work
Fourth Factor: Effect on MarketYes No
No major impact Major ImpactLicensing Unavailable Licensing
AvailableRestricted Access Wide
access givenLegal copy Repeated use
Seminal Cases
• Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991)
• Princeton University Press v. Michigan Documents Service, 99 F.3d 1381 (6th Cir 1996)
• American Geophysical Union v. Texaco, Inc. 60 F.3d 913 (2d Cir. 1994)
• Harper & Row, Inc. v. The Nation Enterprises, 471 U.S. 539 (1985)
• Acuff-Rose v. Campbell, 510 U.S. 569 (1994)
Scenarios
• Nancy, a book reviewer, quotes several passages from a novel in her book review.
• George, an international management professor, incorporates a 30 second commercial into his online course.
• Phil, a historian and biographer, quotes from several unpublished letters and diaries written by his subject.
Market Failure
• Fair Use Only applies when: Market failure is present Transfer of use is socially desirable The use does not substantially harm the
copyright owner
• Primary question of this approach: “Could the defendant reasonably obtain a license”? If no, fair use If yes, not a fair use
Market Failure cont’d
• Fair use exists only to rectify market failures• Privatizing information is desirable because
it: Ensures a fair market price Provides incentive to the copyright holder
• If (when) market imperfections are corrected, fair use will no longer be needed
• Presence of the Copyright Clearance Center (CCC) supports this approach
• Recent court rulings have tacitly suggested this approach is the “cleanest” way to approach fair use.
Section 108 –Library Photocopying
• Enables libraries to make copies of works for purposes of aiding scholars, replacing damaged works, preserving copies of works in danger of disappearing and transferring works from one media that is obsolete to a more practical form.
Section 109- First Sale Doctrine
• Enables you to sell used books, etc. Copyright is different from a copy. Author has copyright. Once sold, I have right to sell copy of my creative work as I see fit.
Section 110-Educational Performance and Displays
• Teachers in course of face to face instruction and digital distance learning environments may perform or display works. The face to face exemption is much less
restrictive than the distance education exemption. Section 110(1)
The TEACH Act
The Technology, Education and Copyright Harmonization Act of 2002
History:• 1998 Digital Millennium Copyright Act• May 1999 U.S. Copyright Office Report• March 2001 Introduction in Senate• Spring 2001 Negotiation over changes• November 2002 Signed by Pres. Bush
TEACH Act requirements
• Amends section 110(2) and 112 to promote distance learning to expand the old exemption to deal with online learning issues and using audio visual works.
• TEACH has numerous conditions and instructors should consult their librarians and legal counsel before attempting to use the Act and thus
Infringement
• An infringement is the exercise of any of the exclusive rights of a copyright owner without permission or color of law
• Forms of Liability Strict Civil
Direct, Contributory, Vicarious Criminal Both institutions and individual may be liable
Types of Infringement
• Direct anyone who violates any of the exclusive rights
of the copyright owner without permission or pursuant to exemption. Section 501
• Vicarious have the right to control infringement of another
and profits from infringement, or operates or supervises the place where infringement occurs or controls content of infringing program
• Contributory knowledge of infringing activity induces, causes or contributes to infringing
conduct
Good Faith Fair Use
• 17 USC 504 (c )(2)• The court shall remit…damages …
where an infringer believed and had reasonable grounds for believing that …use…was a fair use under section 107, if infringer was…an employee or agent of an nonprofit educational institution, library, or archives acting within the scope of [] employment….
• Following IP policy is good protection
DMCA Safe Harbor
• 17 USC 512• Intended to provide protection against
liability to universities whose students, faculty or employees use the institutions computer systems to engage in copyright infringement
• To qualify for protection: adopt a policy for termination of infringer accounts do not interfere with tech. Protection measures designate an agent for receipt of notice remove material stored on system or network
Protected Activities
• Conduit Activities 512(a) transmitting, routing or providing connections for
communications of others
• System Caching 512(b) storing material requested by user from an off-
system web site for later access to material
• Stored Material on ISP System 512(c ) applies to posting materials on personal web pages
hosted on servers operated by provider. Bulletin board services
• Hyperlinks, Directories, and Location Tools 512(d ) protects against liability for material on sites linked to by ISP
Conditions for Qualifying for Limitation
• To qualify for a limitation for all DMCA OSP activities, a set of conditions for each function must be met. If an institution performs all ISP functions, then all requirements must be met.
Technological Protection
• 1201(a) prohibits circumvention of tech. measures to protect work Various exemptions but they are
very narrowly crafted.
• 1201 makes bypassing a technological lock or DRM without permission on a DVD illegal.
