Copyright Law Final STROOP

What is Section 106 of Copyright Act?

Exclusive Rights in Copyrighted Works

Section 106 (1)

to reproduce the copyrighted work in copies and phonorecords

Section 106 (2)

to prepare deviate works based upon copyrighted works

Section 106 (3)

to distribute copies or phonorecords of copyrighted work to the public by sale, rental, or other transfer of ownership

Section 106 (4)

Right to perform copyright work publicly

Section 106 (5)

right to display the copyrighted work publicly

Section 106 (6)

in case of sound recordings, to perform the copyright work publicly by means of a digital audio transmission

rights are public performance rights exploited by ASCAP.

Utilitarian Philosophy (User's Right) and which one the countries have adopted.

copyright law is partially based on this; public should have access to all kinds of creative works for their benefit widest spread production w/ financial incentive for creato

how John Locke influenced copyright philosophy.

Trademark

any word, name, symbol, or device, or any combination thereof used to identify products or services and to distinguish between them from those manufactured or sold by others

What is the Constitutional Clause gives Congress power to make Copyright Law?

Article 1 Section 8 allows Congress to

"promote the progress of Science and the Useful Arts by securing for limited times to Authors and Inventors the exclusive right to their writings and discoveries"; John Locke spoke of right to life, liberty, and property, including intellectual property

What cannot be protected by copyright.

Compilationscollection and assembling of preexisting materials or facts in such a way that the resulting work as a whole constitutes an original work of authorship; includes collective works

Derivative Works and Sampling issues and cases that involved these issues

Public Domain Works

collection of all the works whose copyrights have expired; free to use

Joint Works

prepared by two or more authors with the intention that their contributions be merged into an indivisible whole

6 bar rule myth

Advantages of Registration

1.) Registration creates a public record of your claim of copyright ownership.

2.) Registration provides what is legally known as prima facie (at first sight evidence)

3.) Registration gives the copyright owner the ability to file suit.

4.) Early registration entitles the copyright owner to attorneys' fee and statutory damages.

5.) Registration allows copyright owners collect mechanical license royalties.

6.) Registration allows copyright owners to block importation of illegal copies.

preliminary injunction

court order to do or not do something; part of coercive remedies to prevent future infringement

Proof of access requirements

1.) defendant had reasonable opportunity to view or hear copyrightable material

* can be either direct access or circumstantial access

Safe harbor rules and actual knowledge vs. general knowledge

Safe Harbor Rules

1998: provide a single set of data protection requirements for transferring data across the borders of the countries who joined Safe Harbor Collective.

Actual Knowledge vs. General Knowledge

Actual Knowledge- defendant does not have actual knowledge if he/she believes something to the contrary

General Knowledge-knowledge known by everyone or almost everyone

Assignment

occurs when a copyright owner transfers all or part of its ownership interest in a copyright work

Exclusive Licenses

occurs when a copyright owner transfers one or more of its exclusive rights but retains one or more rights as well.

*owns right transferred to it, has right to sue infringers, and to transfer its rights to others.

National Treatment Principle

Each country agrees to give citizens of foreign countries the same degrees of copyright protection that it gives to its own citizens.

copies and phonorecords

a way of reproducing a copyrighted work to be displayed and shared

recordation of transfers

Digital Performance Right. Who collects the royalties

applies compulsory mechanical license to distribution of musical works by means of digital transmission; adds Section 106(6)

publishers and songwriters

Fair Use

1976 Act allowed for fair use for public benefit without paying public performance royalties for purposes of education, religion, non-profit performances, home use, small business use, marketing use, or non-commercial broadcast use; must have transformative purpose; not determined until after trial

Fair use a defense not a right.

Public Performances

What are the 6 Exclusive Rights of Copyright?

reproduction, distribution, derivative works, public performance of musical composition, public performance of sound recording, and public display

What constitutes infringement?

Anyone who violates any of the exclusive rights of the copyright owner as provided by Sections 106-118, or who import copies or phonorecords into US in violation of Section 602, is an infringer of copyright.

Exclusive Licenses

occurs when a copyright owner transfers one or more of its exclusive rights but retains one or more rights as well.

*owns right transferred to it, has right to sue infringers, and to transfer its rights to others.

Non-exclusive Licenses

-gives someone right to exercise 1 or more copyright owner's right by does not restrict the copyright owner from letting other exercise the same right.

Joint Works

prepared by two or more authors with the intention that their contributions be merged into an indivisible whole

Assignments of Copyright

Requirements:

occurs when a copyright owner transfers all or part of its ownership interest in a copyright work

*must be in writing

Actual Damages

504 (b)-actual damages intended to compensate the copyright owner for the losses incurred as a result of infringement

*actual damages=fair market value of use infringer (amount copyright owner would normally charge for license)

*to be awarded actual damages, copyright owner must prove the amount of money it has lost bc of infringement

Statutory Damages

Court Finds Willful infringement: $150,000 per infringement

Court Finds Innocent infringement: may reduce to $200 per infringement

-difficult to prove the amount of actual damages and defendant's profits from an infringements

*allows copyright owner to elect to receive monetary damages within a specified range (statutory charges) instead of actual damages and profits.

*do not have to prove amount of losses to receive statutory damages

Coercive Remedies

-intended to prevent infringement from continuing

Cease and Desist Letter

informs infringer of their illegal activity; satisfies knowledge element of contributory infringement; first step in bringing lawsuit

National Treatment Principle

Each country agrees to give citizens of foreign countries the same degrees of copyright protection that it gives to its own citizens.

First Sale Doctrine

ownership of physical product, not underlying copyrighted material; owner of physical object can do whatever they want with physical object, within reason

What authority gives Congress the right to pass Copyright Statutes

Article 1, Section 8

Translations as Derivative works

copyright only applies to original elements; termination right cannot recapture copyrights on derivative works based on original work; translations, musical arrangements, dramatizations, fictionalizations, motion pictures, sound recordings, art reproductions, abridgments, or condensations

Automatic Renewal 1992

copyrighted works registered between 1964 and 1977

How long is the term of copyright for someone who obtains the ownership by assignment?

35 years

Work for Hire Requirements

1. when a work is specially ordered or commissioned to be created

2. it must fall with one of nine limited categories identified in the statute

3. there must be a written agreement between the parties specifying that the work

is made for hire

Suppmental Registration

can be made by anyone with copyrightable interest in work; used to correct minor errors on the original copyright registration form using Form CA

The PRO's, and other Agencies (Harry Fox, SoundExchange) and what exclusive rights of the copyright owner each one exploits.

ASCAP, BMI, and SESAC; license public performances, collect royalties for public performances, and distribute royalties to publishers and songwriters; retain approximately 15% for administrative costs

What are the Copyright Notice Requirements?

copyright symbol, owner, year of publication

duties and functions of the Copyright Office

also what is the proper notice to be placed on works.

*1897-US Copyright Office (formed by department of Library of Congress)

-process applications/maintains records of copyright registrations

1.) Advising congress on anticipated change/ and compliance with international treaties

2.) Analyzing and assisting in drafting copyright legisaltion

Steps to take to file a collection of works?

-can register more than 1 work on one application form and pay one fee.

*registation is same as registering a group or works

5 Requirements to Register a Collection of Works:

1. Work to be registered must be published

2. Same person or company must own all rights in the works and in the collection as a whole

3. works must be by same author, or they are by different authors, at least one of the authors must have contributed copyrightable authorship

4. Collection must assembled in an orderly form

5. Collection must be identified by a single file

Download and Streaming

Download and Streaming

Copyrights Involved:

Licenses Required: Mechanical

Streaming: Performance

Who collects money for Copyright Owners? SoundExchange

Download is a reproduction

Streaming=performance

What are Internet Safe Harbors procedures

1998; creates a conditional safe harbor for online service providers (Internet Service provider) and other internet intermediaries by shielding them of their own acts of other

*limiting liability for contributory infringement

downloads require what licenses and how many copyrights are involved.

-Requires: Mechanical License

- 2 Copyrights: © and ℗

What had the RIAA proposed to the file sharing sites to avoid suing individuals for infringement?

A Proposed Resolution: RIAA said they would be likely to refrain from suing file-sharers if file sharing companies agreed to:

1.) adopt polices clearly disclosing to their users that unauthorized uploading and downloading copyright works illegal

2.) use available technology to filter and block illegal filesharing

3.) change default settings of their software so that suer were not unknowingly making files available.

A Proposed Resolution: RIAA said they would be likely to refrain from suing file-sharers if file sharing companies agreed to:

1.) adopt polices clearly disclosing to their users that unauthorized uploading and downloading copyright works illegal

2.) use available technology to filter and block illegal filesharing

3.) change default settings of their software so that suer were not unknowingly making files available.

When is Copyright protected and ownership is created?

Protected: Work is in Tangible Form

Ownership Created: Register at the Copyright Office

What are Internet Safe Harbors procedures?

1998; creates a conditional safe harbor for online service providers (Internet Service provider) and other internet intermediaries by shielding them of their own acts of other

*limiting liability for contributory infringement

First Sale Doctrine

ownership of physical product, not underlying copyrighted material; owner of physical object can do whatever they want with physical object, within reason

What is a Controlled Composition?

*commonly contained in record contracts between an artist and record companies. Artist guarantees the record company that will be able to obtain mechanical licenses for any songs written, owned, or controlled by the artist at reduced rates.

Purpose is to put a limit on how much the label has to pay for each controlled composition

What are the 6 Exclusive Rights of Copyright?

reproduction, distribution, derivative works, public performance of musical composition, public performance of sound recording, and public display

What are statutory rate for compulsory mechanicals? DPD and Ringtone

DPD (9.1 cents)

Ringtone (24 cents)

Proof of access requirements

1.) defendant had reasonable opportunity to view or hear copyrightable material

* can be either direct access or circumstantial access

Contributory Infringement

party has knowledge of infringement and induces, causes, or materially contributes to infringement; Cease and Desist letter satisfies knowledge element

Vicarious Infringment

party has the right or ability to control actions of infringer and receives direct financial benefit from infringement; don't need to prove knowledge or intent

Inducement Infringement

party intentionally induced direct infringement; intent replaces knowledge element of contributory infringement

No Electronic Theft Act

1997; federal crime to reproduce, distribute, or share copies of electronic copyrighted works even if infringer acts without commercial purpose or receives financial gain; criminal penalty of three years in prison and $250,000 fine

Parody vs. Satire

parody is composition that imitates style of another composition for comic effect and by applying style to outlandish or inappropriate subject; satire is intended to improve humanity and institutions by using ridicule to arouse reader's disapproval of object or custom

Termination of Transfer

Copyright Act of 1976

automatic protection for original works of authorship placed in fixed, tangible medium of expression for life of last surviving author + 50 years; effective January 1, 1978; divisibility of copyrights; termination right between 35th and 40th year with notification no more than 10 years and no less than 2 years from date of termination; implementation of Fair Use

sound recordings of musical compositions were protected in

1972

Mechanical compulsory license

originated from 1909 Copyright Act; Section 115 in 1976 Copyright Act; issued by publisher to the record company for reproduction and distribution of copyrighted musical work for statutory royalty rate and file Notice of Intent with copyright owner; must be issued after First Use; only covers non-dramatic musical works

What does a Mechanical License cover?

grants the rights to reproduce and distribute copyrighted musical compositions (songs) on CDs, records, ringtones, digital downloads

Copyright Act of 1909

protected all intellectual property for 28 years with additional 28 years with physical renewal for registered, published works displaying proper copyright notice; allowed for compulsory mechanical license; musical recordings contain copyright for musical composition and copyright for sound recording

Copyright Act of 1976

automatic protection for original works of authorship placed in fixed, tangible medium of expression for life of last surviving author + 50 years; effective January 1, 1978; divisibility of copyrights; termination right between 35th and 40th year with notification no more than 10 years and no less than 2 years from date of termination; implementation of Fair Use

Fairness in Music Act

1998; allows restaurants and bars under 3,750 sq. ft. to be exempt from paying for public performance licenses

6 bar rule myth

that you can sample someone else's music for free and without clearance if it's only 'six bars,'

Three strikes copyright alert system

a partnership between copyright holders and internet providers. The system was designed to scare people out of pirating by sending warning notices whenever they were caught.

When was the term of copyright extended to total of 56 years

Section 203 and 204 of 1976 Act; terminated for pre-1978 works during the 56th year; terminated for post-1978 works between 35th-40th years;

originality

1 of 2 requirements for copyrightability: a work created through the "fruits of intellectual labor."

Copyright Renewal Act

Act of 1992 amended the 1976 Copyright act but impacted works under the 1909 Act

Renewal became automatic for works created between 1964 and 1977