1
Q
Definition
A
- An original,
- Phone book example:
- work of authorship,
- facts not copyrightable - color temp map unique
- fixed in a tangible medium of expression
- expression is key, not the idea itself
- the idea needs to be made permanent by the medium: paper, recording, film, etc.
- doesn’t include something that dissipates (skywriting)
Term:
- Living author: Life + 70 years,
- Corporation: date + 95 yrs (pre-1978)
- To allow children, etc. to benefit from wealth
Examples:
- Literary works: includes computer programs
- Musical works (words and meoldies seperately)
- Dramatic works
- Pantomimes
- Choreography
- Audio visual
- Sculptures
- Paintings
- Drawings
- Sound recordings
- Architectural blueprints
- Parodies
- Recipe if it’s special (can also be patentable)
Excludes public domain like Mozart, Grim stories
2
Q
Constitution
A
Constitution refernced copyrights and patents initially
3
Q
Rights of holder
A
Key difference from patents: Right to practice yourself AND exclude others from:
- Reproduce
- Can make copies of software purchased
- Prepare derivative works: movies, characters, other books
- Derivative of the work also protected. No-one else can use Harry Potter characters.
- Prevent others from using
- First sale right
- can’t prevent someone who buys a copy from doing what they want with it - can sell a book you’ve bought
- doesn’t apply to software like Autodesk because it is “licensed” not sold
- Distribute (import/export)
- Public perform
- can’t play a cover in a bar without a license
- Public display
- contract saying you can only display something you buy in certain places
4
Q
Expression of an idea
A
Protect the expression of an idea, not the idea itself.
- zero-point radiation derivation
- other people can write it as long as it’s not the same way and they give credit
5
Q
Thailand
A
Don’t protect IP with copyrights. Copy all software.
Everyone can have access to modern software ~$2 each.
Downside
- No profit being made
- Tech moguls don’t start companies there because there’s no market
6
Q
Court case examples
A
- Duck is unique, distinguished
- Spade’s likeness was too indistinguishable from a general detective persona so it wasn’t infringemnet
- Lotus was original spreadsheet with cells
- Lost to those who copied software
- SC said it was basic so it wasn’t copying
- This is why Microsoft has Excel now
- Screenplay on lady buried alive
- She was told she can’t have copyright on facts of her life since they are public knowledge
7
Q
Granting copyrights
A
- In order to have a valid copyright, a grant
from a government office is not required - Copyright “registration” is simply that,
registration of the copyright claim, not
examination of an “application” as in patents - However, registration is required to enforce the
copyright in US district court;- how soon you
register before suing affects available remedies
as well as evidentiary value of the registration.
Registration date is date required materials are
received at the Copyright Office
- how soon you
- Also, there is no requirement to provide notice to
others of your copyright (e.g. the ©).- but notice does eliminate “innocent
infringement” defense
- but notice does eliminate “innocent
8
Q
Work of authorship
A
- Open ended interpretation
- Examples:
- literary works
- musical works
- dramatic works, pantomimes, choreography
- audiovisual
- pictorial, graphic, and sculptural works
- sound recordings
- architectural blueprints
- computer programs
- Does it need to be artistic?
- no – “because society’s tastes are in constant flux, such a requirement would lead to uncertainty and impede protection.
9
Q
Original
A
Original intellectual conception of authors (completely new)
- some minimal degree of creativity, can even be a small amount - not equated with effort put in
- Chinese menu example had no creative input
- prisoner interview: producer yes, prisoner not an author since he had short answers to conventional questions
Can also include:
- a compilation of other works that forms a new
work (e.g a magazine) with sufficient selection,
coordination or arrangement to constitute an
original work of authorship - a collective work that is a simple
accumulation of previous works (e.g Reader’s
Digest) - a derivative of another work, including any
way in which the first work could be recast,
adopted, or transformed- book to a movie or play
- translation from English to French
10
Q
Fixed in a tangible medium of expression
A
- Can be perceived, reproduced or otherwise communicated
- Fixation for more than transitory duration
- Yes
- Recorded baseball game
- Transcript of speech
- No
- Baseball game
- Skywriting
- Copy for <1 second in memory of computer system
- Yes
11
Q
Not copyrightable?
A
- Ideas, procedures, processes, systems, methods of operations, concepts, priniciples or discoveries
- Just their expression through a medium
- Scenes a faire
- indispensible (standard) basis for treatment of a given idea
- plot devices - love triangles, coming of age
- characters - using them as a device to tell a story
- Sam Spade (cool character is standard)
- indispensible (standard) basis for treatment of a given idea
- Basic and general
- Lotus v Borland
- Menu tree structure in spreadsheet copied
- Did not copy the code, just the setup of commands and functions
- Names of menu commands were just a method of operation - not copyrightable
- Lotus v Borland
- Fact reporting
- Zapruder and the Kennedy assassination
- Directly copied frames with charcoal
- Event may have been news and general knowledge but the way he filmed it was original
- Buried alive lady - story is knoledge and can be used
- Zapruder and the Kennedy assassination
12
Q
Ownership and transfers
A
Initial owner
- work’s author is the initial owner of copyright
- can be a corporation - work made for hire (WMFH)
- employee creating any type of work within the scope of employment; or
- independent contractor creating only certain types of work, if agrees in signed writing that it is WMFH
Transfers
- must be in a signed writing
- “Transfer” includes exclusive license
- Must be recorded to take precedence over a subsequent bona-fide purchaser for value
- Subject to termination (after 35 years, for modern works
13
Q
Direct copyright infringement
A
- Carry out rights of holder without a license from said person
Proof of direct infringement
- Validity of copyright: show it was a registered work
- Reasonable possibility of access: can we infer they accessed it?
- shown by evidence of wide dissemination
- Substantial similarity
- Comprehensive nonliteral: structure is duplicated (paraphrase)
- Fragmented literal: substantial portion copied verbatim
- Artistic: looks at works as a whole
- Fact-based (software): successive filtering
- take our unprotectable and look at what’s left
- ideas, public domain, etc. taken out
14
Q
Contributory copyright infringement
A
- distributing a product that the distributees use to infringe copyrights, if the product is not capable of ‘substantial’ or ‘commercially significant’ noninfringing uses
- contributory infringer has knowledge of another’s
infringement, and either- materially contributes to or
- induces the infringement
- Ex
- Pirate Bay videos - their software contributes to copied downloads and distribution of music
15
Q
Vicarious liability infringement
A
The infringer has:
- the right and ability to supervise the infringing conduct and
- a direct financial interest in the infringing activity.
- basically: has control over the person infringing and benefits financially without trying to stop it
16
Q
Criminal infringment
A
- All elements of direct, contributory or vicarious and
- willfulness and
- either
- Financial Gain to the infringer (anything of value)
- Reproduction or Distribution, during any 180-
day period, of 1 or more copies of 1 or more
works which have a total retail value of $1000 or
more
- Aimed at cyberanarchists
- 1-10 years in jail and fines
- software piracy is big
17
Q
Copyright infringment defenses
A
- Fair Use
- DMCA Safe Harbor
- First Sale (discussed above)
- Consent and Licensing
- Copyright Misuse
18
Q
Fair use defense
A
Accept certain conduct from infringement liability, because the particular use is deemed more beneficial to the public than the harm is to the copyright holder.
Four-factor test:
- The purpose and character of the use, - including whether such use is of a commercial nature or is for nonprofit educational purposes
- Is the purpose transformative? Does it add criticism, comment as new expression - not just a copy.
- Doesn’t need to be productive though.
- Not applicable to commercial works.
- Nature of the copyrighted work
- More protection to factual, infromational works.
- Narrower for creative works.
- Author’s right to control first appearance outweighs.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- ~ substantial similarity
- Quantity and quality considered
- If a small portion, but heart of work - can have big impact
- The effect of the use upon the potential market for or value of the copyrighted work
- critique or parody may hur copyright owner’s image, but not because of the copying itself
- Attirbution must be direct
19
Q
Parody
A
Commenting on parody, the Supreme Court said this:
‘“The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line. Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioner’s suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair.”
Appeals
- commercial nature makes it unfair use
- took heart of original as heart of new
- took too much of it
- marktet harm
SC Comments
- Transformative from 50s to 80s rap
- Amount and substantiality was found to be reasonable
- Even though it was heart, couldn’t have done a parody without it
- As a whole it was distinctive
- Parodies and originals serve differenet markets
*
20
Q
Consent and licensing defense
A
- Consent can be implied.
- Unless you put “no archive” on website it is implied you can take it.
- Contractor creating software granted implied license to modify.
- Freelance writer contributions permitted for use in NYT print but not on web - different mediu not implied.
21
Q
Misuse defense
A
Copyright is a limited monopoly: the defense of misuse forbids a copyright holder from leveraging copyright to control areas outside the
monopoly
- Unduly restrictive licensing schemes
- Clauses in software license prohibiting licensees from developing any competing program were a misuse of copyright.
22
Q
Digital Millenium Copyright Act (DMCA) defense
A
The DMCA provides specific protections or “safe harbors” from liability for all monetary relief, and most kinds of equitable relief, for
service providers engaged in:
- transitory difital network communications
- system caching
- info storage
- links to infringing websites
To qualify you must:
- provider of online services or network access, or the operator of facilities therefore
- reasonably implement a policy for termination of subscribers and account holders who are repeat infringers
- accommodate and not interfere with standard technical measures used by copyright holders to identify or protect copyrighted works
23
Q
Infringement remedies
A
- Actual damages
- Statutory damages
- $750-$30k
- $200 innocent
- $150k for willful
- Injunctions, impoundment
Tech Creation Final Exam
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