Copyright, Fair Use, and the Digital Age Notes
Copyright Laws, Fair Use, and the Digital Age
Introduction
- The Internet facilitates easy sharing and access to creative works (songs, artwork, books, videos, etc.).
- However, this ease of sharing doesn't guarantee legality due to copyright laws.
- Copyright protects the intellectual property of creators, granting them legal rights over the copying and distribution of their work.
Copyright Laws
- Historical Context:
- The first copyright law emerged in England in the 1700s, spurred by the printing press and unregulated book copying.
- Most countries now have copyright laws; 177 countries, including the United States, adhere to the Berne Convention.
- Berne Convention:
- An international agreement standardizing copyright across borders.
- In signatory countries, a creative work is automatically copyrighted upon being "fixed in a tangible medium" (physical or digital).
- Copyright notices are not mandatory, though registration is optional for enforcing copyright in court.
- Scope of Copyright:
- Copyright protects the expression of ideas, not the ideas themselves.
- Exclusive Rights in the US:
- The right to reproduce the work.
- The right to create derivative works.
- The right to distribute copies through sale or rental.
- The right to publicly display visual works.
- The right to publicly perform audio works via digital transmission.
- Duration of Copyright:
- The Berne Convention sets a minimum of 50 years after the author's death.
- The United States extends this to 70 years in most cases.
- Public Domain:
- Once a copyright expires, the work enters the public domain.
- Public domain works can be freely used and adapted by anyone (e.g., 19th-century books like Bram Stoker's Dracula and Jane Austen's Pride and Prejudice).
Fair Use
- Definition:
- Fair use allows limited use of copyrighted materials without permission for purposes such as criticism, comment, news reporting, teaching, or research.
- Determination:
- A judge determines fair use on a case-by-case basis, considering four factors:
- Purpose and Character of Use: Educational vs. entertainment, non-profit vs. for-profit, transformative vs. iterative.
- Nature of Copyrighted Work: Factual vs. fictional.
- Amount and Significance of Portion Used: How much of the work is used, and its importance to the whole.
- Impact on Market Value: Effect of the use on the potential market for the copyrighted work.
- Examples:
- A non-profit educational website using a paragraph from a history book is likely fair use.
- A commercial website streaming an entire historical drama is likely not fair use.
- Transformative Use: Court cases help define what constitutes "transformative" use.
Copyright in the Digital Age
- Challenges:
- Easy reproduction of work leads to unintentional copyright violations (downloading files, pasting text, sharing images).
- Rise of Digital File Sharing:
- 1990s: Peer-to-peer networks (e.g., Napster) enabled easy downloading of files.
- Napster's Impact: At its peak, Napster consumed 60% of some colleges' Internet bandwidth through MP3 downloads.
- Copyright Issues: Many MP3s were copyrighted music.
- Napster Lawsuits:
- Lawsuits from Metallica, Dr. Dre, and record companies for enabling copyright violations in 2001.
- Napster's Response: Attempted to remove copyrighted songs using digital fingerprinting algorithms.
- Outcome: Napster shut down and filed for bankruptcy after a judge ruled its efforts insufficient.
- New Era in Digital Music:
- Entrepreneurs sought legal means for online music access.
- Examples: Spotify, Pandora (streaming subscriptions); Amazon, Apple (single song purchases).
- Business Model: Companies pay royalties to copyright owners and obtain permission to offer songs.
- Digital Rights Management (DRM):
- Definition: Tools that restrict how users can use copyrighted media.
- Purpose: To prevent unauthorized sharing of legally downloaded content.
- Example: Spotify uses DRM to prevent playing streamed songs outside of Spotify apps by scrambling audio data.
- Circumvention: Programmers often find ways to bypass DRM.
- Digital Millennium Copyright Act (DMCA):
- Passed in 1998 in the United States.
- Criminalizes the production and distribution of technology that circumvents DRM.
- Takedown Notices: Copyright owners can send DMCA takedown notices to services or individuals distributing their copyrighted works.
- Compliance: Services must comply with takedown requests or face legal action.
- Scale: Google has received over 4 billion DMCA takedown requests.
- Example: RIAA sends thousands of takedown requests to Google daily.
- Criticisms and Concerns:
- Abuse of Takedown Notices:
- A 2016 study found that 36% of DMCA takedown requests to Google Image Search were of questionable validity.
- Nearly half of invalid requests weren't copyright-related.
- About one-third likely qualified as fair use.
- Consequences:
- Content hosting services use algorithms and human review to assess notices.
- Mistakes can lead to legitimate content being taken down.
- Takedown notices can be used for censorship or to stifle competition.
- Impact on Visually Impaired Users:
- DRM can prevent screen readers from accessing e-books.
- Visually impaired users may be cut off from information or risk violating the DMCA by circumventing DRM.
- Solutions Proposed: Movements to move away from DRM and exempt accessibility technologies from DMCA anti-circumvention provisions.