Introduction to copyright

Introduction to Copyright Laws and Issues & “Fair

Use”

HKUST Business School2

Requirements for Copyright Original work of authorship fixed in a tangible

medium of expression, including: Music, movies, books, art, software, CDs, statues,

restaurant menus, toy animals, cereal boxes Items excluded from copyright include:

Manufactured goods, any idea or concept, most useful things (other than software), methods of operation, names, common phrases, facts, data.

Protection is automatic and at zero cost in US Some countries outside the US require registration


Useful Article Doctrine Copyright does not extend to the useful

application of an idea. Includes works of artistic craftsmanship insofar as

their form but not their mechanical or utilitarian aspects are concerned

If can not separate art from utility, courts will deny protection for the entire work Lamp incorporating sculpture of woman at base Integrated circuit – art, but connected to utility Drawing is protected, circuit itself is not protected


Lots of Exceptions to Rights Fair Use – the largest area of exceptions Right of use for promotion

Record store can play selections to promote sales of albums without violating copyright

Right to make copy of program to maintain or repair it, or for archival backup Otherwise, this would violation reproduction right

Various special statutory limitations on rights


Reproduction Rights Right to exclude others from making copies Most basic of all copyright protections Exclusive rights to copy or make records, etc. A copy is “any material object from which,

either with the naked eye or other senses or with the aid of a machine … the work can be perceived, reproduced, or communicated” Phonorecords not originally viewed as copies


Specific Exceptions for Copying Transmitting organizations may make copies of

works temporarily for later transmission Radio, TV stations, Cable companies, Satellite Even temporary recording is otherwise violation

Computer programs archive or backup copies Necessary for usage, repair, maintenance of code Specifically limited ONLY to SOFTWARE (and not a

right which extends to music or video)


Derivative Works Rights Right to exclude all others from creating

works based on copyrighted original work Protects authors from having movies made

without permission of author Protects against secondary work without consent

Series of Star Wars books based on original concept

Is this protecting expression, or ideas? Where is the boundary? Grey area – hard to

know Broad definition of derivative work today


Derivative Work Scope Over Time Derivative Work in past did not include

translations under US law Not same “expression” and not same audience 1853 Stowe case – narrow view of copyright

US Law is much stricter now than previously Prohibits translations, recordings, arrangements,

dramatizations, films, abridgments, condensations, fictionalizations, or “any other form in which a work may be recast, transformed, or adapted”


Derivative Right Case Example Artist cuts out pictures from popular book,

and attaches them to ceramic tiles to sell Fixes original pictures cut out of book to tiles Adds clear coating to protect and “cures” art

Is this a prohibited derivative work? Why? Mirage Editions, Inc. vs Albuquerque Art Co (1988)

What other rights or defenses to copyright violation might the artist claim?


Distribution Rights & First Sale Right to distribute copies to the public by

sale or OTHER TRANSFER of ownership In reality, redundant with reproduction right

and derivative work rights, so not new right However, limitations to right are important,

and are referred to as “first sale” doctrine Once copyright owner sells work, many rights

transfer to the new owner, including resale


First Sale Doctrine The purchaser of a copyrighted work has the

right to modify and resell works purchased, so long as illegal COPIES are not made Any copies of software made for maintenance,

backup, or for operations must be DESTROYED Derivative works not allowed under this

right But, not always clear what is a derivative work

Leases not a sale, but courts might “reform” a lease to make it a sale if judge wants to


First Sale Doctrine Case Example Copyright owner sells work of art to new

owner with express restrictions that prohibit resale or modification of work

New owner ignores restrictions, and makes modifications and resells work in violation of the original sale agreement terms

This is NOT a violation of copyright law, although it does create contract law claim Copyright transferred via first sale


Performance Rights Reserved Powerful right to exclude all others from

publicly performing work without permission Applies to literary, musical, dramatic,

pantomime, choreographic, movies, & other audiovisual works.

Except for purely pictorial works and sound recordings, includes all copyrightable works

Exclusion of sound recordings is important Performers have no rights to royalties, but

composers of original work may have rights


Limitations on Performance Rights

Some types of performance are allowed: Face to face educational activities Religious worship Non-commercial “charitable” performance Limited reception on home receivers at no

charge Fairs Performances by or for the handicapped

Only exempted if performed with no direct or indirect commercial advantage or fee


Display Rights Internet publication of pictures or work

included in display rights of copyright owner Only the original copyright owner has right

to broadcast images of work So, if you BUY original of painting, you CAN make

broadcast of painting on the Internet However, if you BUY a COPY, you do not have the

right to broadcast this copy of work via internet Right to make image available outside one

location is restricted only to original work owner


Digital Transmission Performance Sound recordings protected in 1995

extension to copyright laws to add new rights

Sound recording owners have full rights to any digital transmissions of their works (e.g., via the internet) and can negotiate fees Radio stations do NOT have to pay same fees Rebroadcast of radio via Internet is grey area Originally broadcast as analog, but digital online Copyright owners negotiating digital radio terms


Advanced Digital Technologies Various laws passed in 1999, including DMCA Restrictions on breaking copyright encryption Limitations on digital copying machine sales

Must have Serial Copy Management System Protects rights of copyright owners for copies CRIMINAL PENALTIES for violation of DMCA

Digital watermarking of music & video Protections of rights may harm innovations


Copyright Infringement Infringement NEED NOT BE INTENTIONAL

Liability for “innocent” infringement clearly shown Even unconscious infringement creates liable

Author thinks work is original, but influenced by work George Harrison, of Beatles, infringed song by Chiffons “My Sweet Lord” too much like “He’s So Fine” in style Harrison did not intend to plagiarize, but he did so

Vicarious Infringement Hire band & they infringe. Firm hiring also liable.


Types of Infringement Direct Infringement – violation of at least one

of rights protected by copyright Lawsuit against copy center for copying textbooks Violation of distribution by selling illegal DVDs

Contributory Infringement – inducing, causing, or materially contributing to the infringing conduct of another person

Vicarious Infringement – right to control infringer acts and receives benefit from acts Napster case and Sony case


Proof of Infringement Must establish ownership of work. Direct evidence seldom is available, and is

usually proven via circumstantial evidence Remarkable resemblance to original, and

infringer had some contact with original work Combination creates persuasive presumption Proof of access and substantial similarity of work The more works are different, the higher the

standard of proof that is required or needed


Two Stage Process in Proof First, did copying occur?

Was borrowing from public domain rather than work of the copyright holder?

Did copyright owner copy other works, and thus, is not entitled to protection of “original work?”

Second, was copying illegal or permitted? Ideas, concepts, method of operation, process

limitation on copyright protections Fair use exceptions to copyright protections

Fair Use: “The Right to Copy”

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Fair Use: “The Right to Copy” Copyright law is fairly simple in concept, but

fair use is area that complicates application Defense of fair use admits to copying, but

asserts an allowed or permitted right to copy Most common in certain traditional contexts:

Education, literary and social criticism, parody, and 1st amendment activities (e.g. news report)

Balancing tests of various competing policies


Photocopying and Fair Use Limitations on what can be copied unclear

NOT specified in statue Specifically allowed for classroom use under

some certain conditions, but limitations not clear Rights for libraries to make limited copies Limited copying for scholarly work

Wholesale copying of entire works “not favored by law” Brevity and spontaneity character of work copied

“For-profit” copying not likely to be permitted


Balancing Test of Fair Use Defense

Purpose and character of use, including commercial nature

Nature of copyrighted work Proportion that was “taken” Economic impact of “taking” Intent and motives of defendant First amendment interest (USA only) Balancing test of all above factors jointly


Typically Competing Interests Policy issues often are in conflict in

applying fair use defenses, and there are seldom easy and clear-cut cases that reach the courts Because of complicated and difficult policy

tradeoffs, fair use has been referred to as “the most troublesome in the whole law of copyright”

Dellar v. Samuel Goldwyn (1939)

Sony case discussion of fair use rights Example of Parody and Fair Use


Registration for Copyright Not required, but must be done to obtain

“statutory damages” for infringement Statutory damages often important when

it is hard to show actual damages If work was “registered” with US Copyright

office BEFORE infringement occurred, and if work ALSO had copyright notice, THEN $30,000 USD damages per infringement, and

up to $150,000 USD per willful infringement


Remedies for Copyright Infringement

Plaintiff can recover BOTH actual damages AND defendants profits from infringement As alternative, statutory damages may apply if

copyright is registered in advance and notice given Court may punish repeat offenders or highly

offensive actions with treble damages Injunctions also commonly requested,

including preliminary injunctions during trial


Criminal Liability In addition to civil law remedies, infringers

may also face criminal liability in some cases In 1997, “No Electronic Theft Act” signed

Punishes with fines and prison time those who copy compact discs, VCR tapes, DVDs, or software CDs worth more than $1000 USD illegally

Law requires no proof of any commercial gain Distribution for free is still considered “sale”

Online music copying unclear in this regard

Introduction to copyright

Entertainment & Humor

Transcript of Introduction to copyright