Copyright Law 2003 Class of March 17 2003 Professor Fischer.
COPYRIGHT LAW 2008 Columbus School of Law The Catholic University of America Prof. Fischer Class 27:...
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Transcript of COPYRIGHT LAW 2008 Columbus School of Law The Catholic University of America Prof. Fischer Class 27:...
COPYRIGHT LAW 2008
Columbus School of Law
The Catholic University of America
Prof. Fischer
Class 27: November 19, 2008
WRAP-UP PERFORMANCE RIGHTS
• Only specific types of work
• Performance must be “public”
• No general performance right for sound recordings
• Narrow exceptions
RIGHT OF PUBLIC DISPLAY
• See section 106(5)
• Only applies to certain kinds of work
• See definition of “display” in section 101
• How does First Sale doctrine apply to the right of display? See 109(c)
Perfect 10 v. Amazon.com (9th Cir. 2007) [Supp. p. 99]
• Had Google alleged in an unuathorized public display of Perfect10 images?
• Is this a good decision as a matter of policy?
DIGITAL PERFORMANCE RIGHT IN SOUND
RECORDINGS
• Prior to section 106(6), no public performance right for sound recordings
• Added in 1995 (amendments to 106, 114). Why?• Digital Performance Right in Sound Recordings
Act of 1995: new statutory license • Digital Millennium Copyright Act of 1998:
expanded statutory license to include webcasting
DIGITAL PERFORMANCE RIGHT IN SOUND
RECORDINGS• Interactive “celestial” jukeboxes are not
subject to statutory license but to full 106(6) right
• Nonsubscription broadcast transmissions are exempted
• Other digital transmissions, both subscription and non-subscription, are subject to statutory license if meet detailed eligibility requirements
Sound Exchange
• What is SoundExchange? What does it do? See http://www.soundexchange.com/
Section 112 statutory license
• The section 112 statutory license covers ephemeral reproductions (i.e., temporary server copies) made by all digital music services covered by the section 114 license as well as certain background music services that are exempt from paying public performance royalties under section 114.
DIGITAL PERFORMANCE RIGHT ROYALTIES
• Rate adjustment in spring of 2007 by Copyright Royalty Board – under appeal in U.S. District Court for the District of Columbia
• Huge increase in sound recording royalties (see p. 102 Supplement)
• Caused outcry from webcasters• Webcaster Settlement Act 2008 enacted
FULL PERFORMANCE RIGHT IN SOUND RECORDINGS
• IN 1994 and 1996 Congress considered creating a full performance right in sound recordings, in addition to that for musical compositions.
• Is a general public performance right appropriate for sound recordings?
• How should it be squared with the existing public performance right for musical compositions?
What Public Interest Exceptions Exist For Right of Public
Performance and Display?
• See section 110
What Exceptions Exist For Right of Public Performance and
Display?
• Face-to-face teaching 110(1)• certain instructional broadcasts 110(2) -
note controversy over whether this is appropriate in a digital age for distance learning
• played/sung as part of religious service 110(3)
• nonprofit performance 110(4)
COMPULSORY & STATUTORY LICENSES
• Section 111 - TV broadcast relays
• Section 119 - satellite transmission
• Section 115 - recordings of musical works
• Section 116 - jukeboxes
• Section 118 - public broadcasting
• Section 114 – performances digital sound recordings
FAIR USE
• Defense to infringement
• Affirmative defense
FAIR USE
• To determine whether fair use applies, courts must consider 4 fair use factors in 17 U.S.C. § 107. What are these?
• Courts are allowed to consider other factors too, and they sometimes do, such as considering the amount and substantiality of the portion used in comparison to the defendant’s work, as well as the propriety of the defendant’s content.
Fair Use Factors
• (1) purpose and character of the use (commercial or non-commercial eg. educational?)
• (2) nature of copyrighted work (fact or fiction?)• (3) amount and substantiality of amount used• (4) effect on the market for the copyrighted work• Does it make any difference if a work is
unpublished?
Unpublished works and fair use
• IN Harper & Row, a Supreme Court case (1985), the Court indicated that unlicensed disclosure of unpublished work rarely fair use
• Several cases followed• 1992 amendment to the end of s. 107 “The fact
that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
• See Sundeman v. Seajay Soc’y, Inc. (4th Cir. 1998)
Fair Use and Parody: The Acuff-Rose case [p. 717]
• How did Justice Souter come out on the 4 fair use factors?
• Does it matter if the parody is in bad taste, or not funny?
• Do you agree with Justice Souter’s analysis? Why or why not?