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Intellectual Property
Boston College Law School
February 2, 2009
Copyright – Rights – Fair Use
Exclusive Rights
• 17 U.S.C. §106– “Subject to sections 107 through 122, the owner of the
copyright … has the exclusive rights to do and to authorize any of the following:
• (1) to reproduce the copyrighted work …
• (2) to prepare derivative works …
• (3) to distribute copies … to the public …
• (4) … to perform the copyrighted work publicly …
• (5) … to display the copyrighted work publicly …
• (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission
Public Performance
• 17 U.S.C. §106– “Subject to sections 107 through 122, the owner of the
copyright … has the exclusive rights to do and to authorize any of the following:…
• (4) … to perform the copyrighted work publicly …”
– Sound recordings are excluded• No general public performance right
• But digital public performance right in 106(6)
Collective Rights Organizations
• ASCAP, BMI, etc.– Given authority to license public perf. rights– Provide blanket licenses to users– Enforce licensing requirements– Distribute revenues to copyright owners
Sample Licenses
Public Display
• 17 U.S.C. §106– “Subject to sections 107 through 122, the owner of the copyright
… has the exclusive rights to do and to authorize any of the following:…
• (5) … to display the copyrighted work publicly …”
• 17 U.S.C. §109(c)– “Notwithstanding the provisions of section 106(5), the owner of a
particular copy lawfully made … is entitled … to display that copy publicly … to viewers present at the place where the copy is located.”
Moral Rights
• Berne Convention Article 6bis• Berne Convention Implementation Act (1988)• Visual Artists Rights Act (1990)
Visual Artists Rights Act
• 17 U.S.C. §101– A “work of visual art” is -
• (1) a painting, drawing, print, or sculpture, existing in a single copy [or] in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author … or
• (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author ...
Visual Art
Visual Artists Rights Act
• 17 U.S.C. §106A:– (a) Subject to section 107 …, the author of a work of
visual art -• (1) shall have the right -
– (A) to claim authorship of that work, and
– (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
• (2) shall have the right to prevent the use of his or her name as the author of a work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation
Visual Artists Rights Act
• 17 U.S.C. §106A:– (a) Subject to section 107 …, the author of a work of
visual art -• ...
• (3) … shall have the right– (A) to prevent any intentional distortion, mutilation, or other
modification of that work which would be prejudicial to his or her honor or reputation … ; and
– (B) to prevent any destruction of a work of recognized stature ...
Visual Artists Rights Act
• Additional details– Right attaches regardless of ownership of
copyright or the actual copies– Can be waived, but only in a signed writing– Duration is generally life of the artist– Violation leads to an action for infringement
Fair Use
Fair Use
• 17 U.S.C. § 107. Fair Use– “Notwithstanding the provisions of section 106,
the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright….”
Fair Use• 17 U.S.C. § 107. Fair Use
– “In determining whether the use made of a work … is a fair use the factors to be considered shall include --
• (1) the purpose and character of the use, including whether such use is of a commercial nature …;
• (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 work.”
Fair Use Justifications
• Traditional: Promote Learning and Progress– Full enforcement might harm copyright goals
– Fair use encourages dissemination, learning, etc
• Economic: Response to Market Failure– Certain small-scale uses may be low value
– Transactions costs may preclude licensing
– Fair use cures market failure
Harper & Row v. Nation
Zapruder Film
Sony v. Universal
Other Personal Uses
• Home taping of video, if available on-demand• Taping CD for car stereo• TiVo
American Geophysical
Campbell v. Acuff-Rose
Fair Use?
Dr. Seuss v. Penguin Books
Disney v. Air Pirates
Rogers v. Koons
Defenses
• Fair Use
• Independent Creation
• Consent or License (Express or Implied)
• Statute of Limitations
• Inequitable Conduct
• Copyright Misuse
• First Amendment
Administrative
• Next Assignment– Read II.G – Indirect Liability– Read II.H – Digital