Module 7: Enforcement: Difference between revisions

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By Dmitriy Tishyevich, Melanie Dulong de Rosnay and William Fisher
==[[Image:key.png|50px|]] Learning objective ==


== Learning Objective ==
This module will provide a general overview of what it means to infringe another’s copyright and explain the various ways in which infringement may occur.  It will also provide a description of some of the issues that commonly arise when a copyright holder decides to bring a copyright infringement lawsuit, and how such cases typically proceed and conclude.  It will review some statutory provisions discussed in previous modules that provide liability exemptions for service providers, including libraries.  Finally, the module will consider the appropriate roles of librarians with regard to copyright and copyright enforcement.


This module describes activities that may infringe copyright, several exceptions and defenses to infringement, and the procedures used in a typical infringement case.


This module provide a general overview of what it means to infringe another’s copyright and to explain the various ways in which infringement may occur.  It will also provide a description of some of the issues that commonly arise when a copyright owner decides to bring a copyright infringement lawsuit, and how such cases typically proceed and conclude.  It will review some statutory provisions discussed in previous modules that provide liability exemptions for service providers, including libraries.  Finally, the module will consider the appropriate roles of librarians with regard to copyright and copyright enforcement, and suggest possible ways to assess and minimize the risk of liability for copyright infringement.
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== [[Image:casestudy.png|50px|]]Case Study ==


== Case Study ==
Angela leaves Nadia an urgent phone message: ''“I received a cease and desist letter from a publisher complaining that, by including some of his works in one of my course packs, I am infringing his copyright. What should I do?”''


''“I received a cease and desist letter from a publisher complaining that, by including some of his works in one of my coursepacks, I am infringing his copyright. What should I do?”''
How should Nadia respond?


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==[[Image:lesson.png|50px|]] Lesson ==
== What Infringes Copyright? ==
== What Infringes Copyright? ==


====Acts That May Infringe Copyright====
====Acts That May Infringe Copyright====


When someone exercises an exclusive right of the copyright holder without permission it infringes copyright. For example, making a copy of a book or record invokes the exclusive right of reproduction, and, if performed without permission, would infringe the rightsholder's copyright.
As we have seen, the unauthorized exercise of an exclusive right of the copyright holder infringes copyright unless the use is covered by one of the exceptions or limitations discussed in [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_4:_Rights%2C_Exceptions%2C_and_Limitations Module 4]. For example, making a copy of a book or record implicates the exclusive right of reproduction, and, if done without permission in a manner not covered by one of the exceptions, would infringe the rightsholder's copyright.  
 
Infringement may also occur when one violates any of the moral rights recognized by the particular country’s copyright regime. These may include the right of an author to prevent distortion or mutilation of his or her work, the right to be attributed for one’s work or not to have authorship falsely attributed.


Of course, these acts may not infringe copyright if there is an exception or limitation that allows someone other than the rightsholder to perform them.
Infringement may also occur when one violates any of the moral rights recognized by the particular country’s copyright laws. These may include the right of an author to prevent distortion or mutilation of his or her work, the right to be attributed as the author of a work or not to have authorship falsely attributed.


====Direct and Indirect Infringement====
====Direct and Indirect Infringement====
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Copyright law typically distinguishes between two different kinds of infringement.   
Copyright law typically distinguishes between two different kinds of infringement.   


Direct infringement occurs when one actually exercises any of the copyright owner’s exclusive rights without authorization. As stated in the previous section, this may include copying a book or record without permission.  
Direct infringement occurs when one exercises one of the copyright holder’s exclusive rights without authorization or legal justification. As stated in the previous section, this would include copying a book or record without permission.  


However, most copyright regimes also recognize a form of indirect or secondary infringement. Indirect or secondary infringement allow one to be found liable for the acts of another. For example, one may be liable for “contributory infringement” if he or she knows about the infringing activity and induces, causes, or materially contributes to the infringement done by another person. One may be liable for ”vicarious infringement” even when he or she does not have actual knowledge of the infringement if she has the right and ability to control the other person’s acts and benefits directly from the infringement.
However, many copyright regimes also recognize forms of indirect or "secondary" infringement. Under certain circumstances, one can be found liable for the acts of another. For example, in the United States, one may be liable for “contributory infringement” if he or she knows about the infringing activity of another and does something to induce, cause, or materially contribute to that infringement. One may be liable for “vicarious infringement” based on the actions of another person, even without actual knowledge of the infringement, if she has the right and ability to control the other person’s acts and benefits directly from the infringement.


Merely providing a device capable of committing direct infringement is usually not enough to incur liability for contributory or vicarious equipment. Generally speaking, if the device is capable of '''substantial non-infringing uses''' - like a copy machine, or a computer - then it is OK.  However, courts in the United States have recently developed the "inducement" standard. According to the inducement standard, if a potentially infringing technology is promoted by its ability to infringe copyright, the distributor of the technology may be liable.  
Merely providing a device capable of committing direct infringement is usually not enough to incur liability for contributory or vicarious infringement. Generally speaking, if the device is capable of '''substantial non-infringing uses''' - like a copy machine or a computer - then the maker of that device will ordinarily not be liable for the actions of the device's users.  However, under certain circumstances the maker of a device used by others to commit infringement can be liable for "inducement" of copyright infringement. In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the US Supreme Court held that the distributor of file sharing software could be liable for copyright infringement if the distributor intended to promote the software's use for infringing purposes and took "affirmative steps" to achieve that goal.  


Other countries take a similar approach.  In addition to punishing direct infringement, for example, the United Kingdom also imposes liability for secondary infringement for actions such as importing infringing copies, providing means of creating unauthorized copies, transmitting a copyrighted work over a telecommunications system, or supplying sound recordings or films for an infringing performance.  Similarly, under South African law, infringement may occur when one exercises any of the exclusive rights of the copyright holder without license, or causes any other person to do so.
Other countries also impose secondary liability for copyright infringement.  In addition to punishing direct infringement, for example, the United Kingdom also imposes liability for providing a means of creating unauthorized copies, or supplying sound recordings or films for an infringing performance.  Similarly, under South African law, infringement may occur when one either exercises one of the exclusive rights of the copyright holder without license (or other legal justification), or causes another person to do so.


====Plagiarism and Copyright Infringement====
====The Liability of Online Service Providers====


Copyright infringement is a crime of producing unauthorized copies of a protected work. Plagiarism is the ethical violation of stealing ideas without proper attribution. It is unusual that plagiarizing another’s work will also constitute an act of copyright infringement. This is in part due to the fact that copyright law is concerned with protection of material manifestations and expression of ideas, rather than protection of ideas themselves.  However, because many countries protect authors’ rights to have their work attributed to them, it is possible that plagiarism may constitute infringement of moral right of attribution.
Many countries have enacted “safe harbor” statutes that protect online service providers such as search engines, internet service providers, libraries or universities from liability for copyright infringement committed by their users. In order to be eligible for these exemptions, the service provider must comply with certain rules.   


In the most common instance of copyright infringement, one engages in unauthorized copying or distribution of a particular copyrighted work.  In a typical instance of plagiarism, however, a person uses another author’s writing, ideas, research, or language without citing or otherwise attributing the source.  Although plagiarism is similarly likely to involve the unauthorized use of another's work, it also requires the additional element of consciously concealing the source of that work.  Unlike copyright infringement, plagiarism may still occur when the original work is not protected by copyright. For example, it would be plagiarism to steal the ideas or language from a book in the public domain even though it would not infringe copyright. Still, it may be possible for plagiarism to constitute copyright infringement if the source work is protected by copyright, and if the amount taken without attribution from the source is sufficiently substantial so as to violate the copyright holder’s exclusive right of reproduction.  
Some countries require online service providers to comply with so-called '''“notice and takedown”''' provisions to be protected by a safe harbor.  For example, in the United States, if a copyright holder believes that a file hosted by a service provider infringes her copyright, the copyright holder may submit a notice to the provider to request that the file be removed.  The notice must typically include the name of the complaining party and list any infringing materials, including the '''URL'''. It must also contain a good-faith statement by the copyright holder that the materials infringe on her copyright. It must conclude with a sworn statement of the accuracy of the notice and the notice provider's authorization to act on behalf of the rightsholder.  


The distinction between plagiarism and copyright infringement also explains the distinction in their enforcement.  Instances of plagiarism are typically enforced by educational institutions, social norms, and ethical codes and carry no civil or criminal penalties. Instances of copyright infringement are adjudicated by courts and may be punishable by civil damages, fines, or imprisonment.
Upon receipt of a take-down notice, the service provider must quickly remove the infringing material or disable access to it.  It must also notify the individual responsible for the infringing material of its removal.  It is not necessary for the copyright holder to obtain a judicial decision that the material is, in fact, infringing in order to send a take-down notice. The safe harbor provisions allow the individual responsible for the content to file what's called a '''counter-notice''' to challenge a take-down notice.  If the poster submits a counter-notice asserting that the material removed was not infringing, the service provider must notify the copyright holder. If the copyright holder does not file a lawsuit within two weeks, the service provider must then restore access to the material. The statute exempts service providers for liability for its good-faith removal of materials pursuant to a take-down notice, even if the material is ultimately determined not to be infringing.


== Legal Procedures and Damages ==
The European Union has created a similar, though more open-ended, take-down system in Directive 2000/31/EC (Directive on Electronic Commerce) [discussed in [[Module_2:_The_International_Framework | Module 2]]]. This Directive contains different rules for different kinds of service providers. Mere “conduits,” or services that only route and cache online traffic, are exempted from liability entirely. Providers that actually host data, however, are exempted only if they have no “actual knowledge” or “awareness” of illegal activities, and if they act quickly to remove or disable access to the infringing materials once they have been notified. 


===="Cease-and-Desist" and "Take-Down" Procedures====
However, the question of what constitutes “actual knowledge” of hosting infringing materials has been left largely unanswered. This creates serious problems. It is unclear whether a service provider who receives a notice from a copyright holder that it may be hosting infringing materials will be deemed to have "actual knowledge" of hosting the materials. Likewise, it is uncertain what, if any, evidence such notices must include, whether the person sending it is required to identify himself and include a good-faith statement of belief of infringement, and under what circumstances the service provider is obligated to remove the content in order to take advantage of the safe-harbor provisions. The “awareness” of illegal activities criterion is similarly vague, and it is far from clear how rigorously providers must self-regulate and monitor the data they host or provide access to in order to come within the safe harbor provisions.


Many countries have enacted “safe harbor” statutes that exempt online service providers such as search engines, internet service providers, libraries or universities from liability for their users’ activities. These laws require that the service provider comply with certain rules in order to be protected by the exemptions. If the service provider complies with the safe harbor requirements, only the infringing user will be held liable for damages, while the provider will not be held responsible.
The European Union directive is broader than the US approach in that it does not provide a clearly articulated, multi-step approach for initiating and responding to take-down notices. Because of this lack of clarity, service providers have incentives to respond aggressively to take-down notices. Further, under the Directive, there does not appear to be a set procedure in place for a user to object to removal of the material, nor are providers required to notify a user when material is removed or made inaccessible.


Some common statutory requirements are so-called '''“notice and takedown”''' provisions. Such provisions are specifically described in American law. Other countries, however, have not been as particular in enacting these statutes.  
The approaches taken by other countries to the exemption of online service providers from liability for infringement committed by their users may differ substantially. Australian law, for example, contains an exemption that is similar to that codified in the United States. However, it does not require service providers to notify the person who posted the material that has been removed. Israel likewise has a notice and take-down procedure as part of its safe harbor statute. Unlike the United States, though, it does not require the service provider to remove the material quickly upon the receipt of a complaint. Instead, it allows users three days to respond to the complaint before the material will be removed. Some countries - such as India - do not recognize safe harbor provisions for Internet service providers and may hold them liable for copyright infringement committed by their users even if the provider has no active or direct involvement in that infringement.


In the United States, if a copyright holder believes that a document or recording hosted by a service provider infringes his copyright or allows others to infringe it, the copyright owner may submit a notice to the provider.  The notice must typically include the name of the complaining party. It must list any infringing materials and their Internet addresses. It must contain a good-faith statement by the copyright holder that the materials infringe on her copyright. It must conclude with a sworn statement of the accuracy of the notice and authorization to act on behalf of the rightsholder.  
Surprisingly enough, these rules may affect some libraries in developing countries.  The reason is that some libraries may assist in running or managing the networks in universities with which the libraries are affiliated.  In such circumstances, it is possible that some of the libraries' activities may qualify for protection under a safe-harbor provision. If so, librarians should pay close attention to the details of the notice-and-takedown systems (if any) contained in their countries' copyright laws.


Upon receipt of the notice, the service provider must quickly remove the infringing material or disable access to it to qualify for the safe harbor provisions.  It must also notify the individual responsible for the infringing material of the removal.  It is not necessary for the copyright holder to obtain a judicial decision that the material is, in fact, infringing in order to send a take-down notice. Rather, all that is necessary is a good-faith belief that infringement has occurred.
==Procedures and Penalties ==


The safe-harbor provisions allow for counter-notice and put-back procedures to make sure that copyright owners do not insist on removal of works that do not actually infringe their copyright.  To so invoke these procedures, the user who posted the allegedly infringing material must provide a “counter-notice” to the service provider, asserting that the material removed was not infringing.  Upon receipt of the counter-notice, the service provider is obligated to notify the copyright holder of the objection.  If the copyright holder does not file a lawsuit within two weeks, the service provider must then put the removed material back online.  The statute exempts service providers for liability for any claims made on the basis of the provider’s good-faith removal of materials, regardless whether the material or activity is ultimately determined to be infringing.
====Legal Procedures and Remedies====


The European Union has created a similar, though more open-ended, system with Directive 2000/31/EC (Directive on Electronic Commerce).  This Directive distinguishes between different kinds of service providers. Mere “conduits,” or services that only route and cache online traffic, are exempted from liability entirely.  Providers that actually host data, however, are exempted only if they have no “actual knowledge” or “awareness” of illegal activities, and if they act expeditiously to remove or disable access to infringing materials.
A copyright holder may decide to file a copyright infringement lawsuit if she believes that infringement of one of her exclusive rights has occurred. Typically, only the holder of the exclusive right that was infringed or a beneficial holder of that right may bring a copyright infringement claim.


However, the question of what constitutes “actual knowledge” of hosting infringing materials has been left largely unanswered.  This creates serious problems. It is unclear whether a service provider who receives a notice from a copyright holder that it may be hosting infringing materials may be deemed to have "actual knowledge" of hosting the materials.  Likewise, it is uncertain what, if any, evidence such notices must include, whether the person sending it is required to identify himself and include a good-faith statement of belief of infringement, and in what circumstances the service provider is actually obligated to remove the content in order to take advantage of the safe-harbor provisions.  The “awareness” of illegal activities criterion is similarly vague, and it is far from clear how rigorously providers must self-regulate and monitor the data they host or provide access to in order to come within the safe harbor provisions.
The copyright holder may choose to sue the person or persons who committed direct infringement, and / or anyone else who may be found to be liable under the several theories of secondary or indirect infringement described above.  In many countries, the copyright holder must bring the claim within a certain period of time after the act of copyright infringement occurs, or it  will be barred by the statute of limitations.  The length of the statute of limitations varies by country.  For example, the statute of limitations for copyright infringement actions is three years in the United States and six years in Australia. (17 U.S.C. section 507(b); Section 134(1) of the Australian Copyright Act.)


At the very least, the European Union directive seems broader than the United States approach in that it does not provide a clearly articulated, multi-step approach for initiating and responding to take-down notices.  Because of this lack of clarity, service providers have incentives to respond aggressively to take-down notices.  Further, under the Directive, there does not appear to be a set procedure in place for a user to object to the material being removed, nor are providers required to notify the users when material is removed or made inaccessible.
At the outset of litigation, the defendant -- who could be an individual user, a librarian, or a library -- should consider whether settlement is a better alternative than proceeding toward full trial.  Because the finer points of copyright infringement litigation are often complex, defending against an allegation of copyright infringement can be very expensive.  Further, because some countries allow a plaintiff who succeeds in his copyright infringement lawsuit to collect damages as set by statute, instead of having to prove actual damages, the final awards in copyright infringement actions can be large.  Finally, statutes or courts may even award attorney’s fees and other costs to the plaintiff if he prevails in his litigation.


Other countries’ approach to exempting online service providers from liability for infringement committed by their users may differ substantially.  Australian law, for example, contains an exemption that is similar to that codified in the United States. However it does not require service providers to notify of the persons who posted material that has been removed.  Israel likewise has a notice and take-down procedure as part of its safe harbor statute.  Unlike the United States, though, it does not require the service providers to remove the material quickly upon receipt of a complaint. Instead, it allows users three days to respond to the complaint.  Some countries - such as India - do not recognize safe harbor provisions for Internet service providers, and may hold them liable for the copyright infringement committed by their users even when the providers had no active or direct involvement with that infringement.
In light of these considerations, the defendant may decide that settling with the plaintiff is a better option than facing the uncertainty and potential expense of litigation.  In a settlement procedure, once the parties have agreed to a set of terms and once the defendant has complied with those terms, the plaintiff will dismiss his lawsuit.  The terms of settlement can vary significantly.  In some instances, the plaintiff may be content with the defendant simply removing the materials from her web site.  In other cases, the plaintiff may demand that the defendant pay some amount of money in addition to removing the infringing material.  Frequently, as part of a settlement, the parties will agree to a permanent injunction that prohibits the defendant from engaging in the same behavior in the future.


====Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations====
At other times, however, the defendant may decide that settlement is not appropriate, and thus will proceed with the litigation.  In order to prevail in a copyright infringement lawsuit, the copyright holder must prove:


Despite international attempts to create relative uniformity across copyright regimes, domestic legal procedures, burdens of proof, and availability and extent of damages vary considerably across countries.  Because of these differences, the plaintiff’s choice of which country and court in which to bring her suit in becomes important.  However, whether a particular forum is available is likely to be limited by substantive law of copyright, extraterritoriality, choice of law, and conflict of laws.
* that the work is copyrightable
* that she is the holder of the copyright
* that the defendant used the plaintiff's work
* that unauthorized exercise of one or more of the exclusive rights occurred.


For instance, a copyright holder can usually not take action against infringement that occurred entirely outside her country. Under United States precedents concerning the extraterritorial reach of federal statutes, federal legislation is presumed to apply only within the territorial jurisdiction.  Because the U.S. Copyright Act does not contain any explicit  language expressing intent for it to apply extraterritoriality, United States courts have almost uniformly rejected attempts to apply it to extraterritorial conduct.  Other countries have been similarly reluctant to extend the reach of their copyright statutes beyond their own borders, and have generally declined to extend enforcement of their domestic copyright regimes to infringement that takes place entirely outside of the country’s territory.
Each of these requirements is discussed in depth in earlier modules; we review them here briefly.


This tradition, however, has been complicated by advances in digital technologies and the rise of the Internet.   
Unauthorized copying and reproduction is the most common form of copyright infringement.  Copying may be demonstrated by direct proof, but such evidence is often unavailable.  Copying may also be demonstrated indirectly, by presenting evidence of a substantial similarity between the original work and the copied work and by demonstrating that the defendant had access to the copyright holder’s work.  Access may be proven by facts showing specifically how the defendant could have obtained the copyrighted work. Alternatively, it may be shown by the fact that the copyrighted work was generally available and widely distributed.  The substantial similarity requirement and the access requirement are interconnected in that the more similar the two works are, the less evidence the plaintiff needs to introduce regarding access to the work.
It used to be easy to identify "where" a copyright was physically infringed. However, digital infringement may involve several steps that occur in different countries governed by different copyright regimes.  This muddles the question of where an actual infringement took place.


Courts have not been entirely consistent in analyzing this issue. For example, some early decisions suggested that an American authorizing an infringement that occurs on foreign soil does not violate U.S. copyright law.  Subsequent courts have been reluctant to follow this reasoning. Instead, they have held that U.S. law applies to any infringement where a single "predicate act" - an act which led to the infringement - occurred in the U.S. Commentators have advanced alternative '''choice-of-law rules''', including, for example, application of the law of a particular state if it is possible to localize in that state the point from which the infringing work becomes available to the public. However, there presently does not appear to be a uniform, agreed-upon analysis that governs this issue.
In defending against a claim of copyright infringement, the defendant may claim several defenses and exceptions, such as fair use, statute of limitations, uncopyrightability of the original work, public domain, first sale doctrine, safe-harbor provisions, independent creation, and other statutory exemptions. We examined those Exceptions and Limitations in detail in [[Module 4: Rights, Exceptions, and Limitations|Module 4]].  


If a particular infringement is alleged to have occurred at least in part in more than one country, a court will engage in a “conflict of laws” analysis to determine which state’s law will govern the infringement action.  Because the same act of infringement may occur in several different countries, it is possible that a court adjudicating the matter will apply laws of each of those countries in the same lawsuit.  Sometimes, a court will rule that the applicable law is the law of the country in which the infringement occurred. As such, that law will govern all elements of the action without regard to nationality of author, country of origin of copyrighted work, or place of first publication. However, this view is criticized by some because its application would result in application of different laws every time the work crosses a national border.
Most countries’ copyright regimes provide a broad range of remedies for copyright infringement.  This is required by several of international agreements discussed in [[Module_2:_The_International_Framework|Module 2]].  The copyright holder can typically seek temporary or permanent injunctive relief, actual damages suffered as the result of the infringement, award of trial costs and attorney fees. Finally, in extremely rare circumstances involving blatant copyright infringement, the infringing party may be found to be criminally liable and sanctioned with fines or imprisonment.


An alternative approach is to apply different laws to originality, ownership, and infringement – the different elements of the infringement action.  Under this view, a U.S. court would have to apply U.S. law in resolving issues of originality. The constitutional requirement of originality for copyright prevents courts from applying more lenient originality standards of foreign countries.  The law applicable to ownership is likely to be the law of the state that has the most significant relationship to the copyrighted work and to the parties involved.  Finally, under the general principle of '' '''lex loci delicti''' '' (the place of wrong), the law applicable to the actual infringement is likely to be that of the country in which the actual infringement occurred.
It should be emphasized that successful copyright infringement suits are unusual.  The large majority of copyright holders are content with settlements in which defendants agree to cease their behavior and perhaps pay modest damage awards.  Libraries are especially unlikely to be targets of successful copyright infringement suits.  There are very few reported judicial opinions in any country in which a public or academic library has been found liable for violating the copyright laws.  Thus, it is important that librarians be aware of the potential sanctions for copyright infringement, particularly so that they can give reliable advice to their various constituencies.  But the libraries themselves should not be unduly worried about the prospect of being sued.


The dominant view seems to be that courts should apply the law of the place where the infringement actually occurred.  This view is consistent with the territorial limitations of copyright law, as well as the general consensus that the protections granted by copyright are largely domestic.  It is also consistent with Article 5(2) of the Berne Convention, which provides that copyright protection is to be “governed exclusively by the laws of the country where protection is claimed.”  At the same time, application of this view to digital acts of infringement may create significant enforcement difficulties and greatly increase the complexity of the case, as digital distribution and reproduction make it easy to disseminate copyrighted works to persons in different countries with different copyright regimes.
====Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations====


====Legal Procedures and Remedies====
Despite attempts to create some uniformity in international copyright laws, domestic legal procedures, burdens of proof, and the availability and amount of damages vary considerably across countries.  Because of these differences, the plaintiff’s choice of the country and court in which bring her suit becomes important.  However, whether a particular forum is available is likely to be limited by the substantive law of copyright and the doctrines of extraterritoriality, choice of law, and conflict of laws.


If a copyright holder may decide to file a copyright infringement lawsuit if she believes that infringement of one of her exclusive rights has occurred. Typically, only an owner of the exclusive right that was infringed or a beneficial owner of the copyright may bring a copyright infringement claim.
For instance, a copyright holder cannot usually sue in one country for acts of copyright infringement that occurred in a different country. This is because, with a few exceptions, the doctrine of extraterritoriality means that a country's laws only apply within the geographic borders of that country.  Applying this doctrine, courts in the United States have almost uniformly rejected attempts to apply U.S. copyright law to conduct outside of the United States.  Most other countries have taken the same position.


The copyright owner may choose to sue the person or persons who committed direct infringement, and / or anyone else who may be found to be liable under the several theories of secondary or indirect infringement described above. The copyright owner must bring the claim within a certain period of time, frequently three years of the time after the copyright infringement occurred, or it will be barred by the statute of limitations.
The doctrine of extraterritoriality has been complicated, however, by digital technologies and the rise of the Internet. With physical goods, it is usually easy to identify "where" an act of copyright infringement occurred.  However, infringement in the digital environment may involve several steps that occur in different countries governed by different copyright regimes.  This muddles the question of where an actual infringement took place.


More on [[the doctrine of sovereign immunity]].
In the United States, courts confronted with such problems have generally held that US laws apply only when the defendant has engaged in some concrete act on U.S. soil.  But most countries have yet to be confronted with cases of this sort.  How the courts in those countries will respond remains uncertain.


At the outset of litigation, the defendant – who could be an individual user, a librarian, or a library – should consider whether settlement may not be a better alternative than proceeding toward full trial.  Because the finer points of copyright infringement litigation are often complex, defending against an allegation of copyright infringement can be very expensive.  Further, because many countries allow a plaintiff who succeeds in his copyright infringement lawsuit to collect damages as set by statute, rather than have to prove actual damages, the final award can be substantial.  Finally, statutes or courts may even award attorney’s fees and other costs to the plaintiff if he prevails in his litigation.
If a particular infringement is alleged to have occurred at least in part in more than one country, a court will engage in a “conflict of laws” analysis to determine which country’s law will govern the infringement action.  Because the same act of infringement may occur in several different countries, it is possible that courts in different countries might apply different countries' laws to the same action.  Sometimes, a court will rule that the applicable law is the law of the country in which the infringement occurred. As such, that law will govern all elements of the action without regard to the nationality of the author, the country of origin of the copyrighted work, or the place of first publication of the copyrighted work. However, this view has been criticized by some commentators because its application would result in the application of different laws every time the work crosses a national border.


In light of the above considerations, the defendant may decide that settling with the plaintiff is a better option than facing the uncertainty  and potential expense of litigation.  In a settlement procedure, once the parties have agreed to a set of terms and once the defendant has complied with those terms, the plaintiff will dismiss his lawsuit.  The terms of settlement can of course vary significantly.  In some instances, the plaintiff may be content simply with the defendant removing some particular materials from his web site.  In other cases, the plaintiff may demand that the defendant pay some amount of money in addition to removing the infringing material.  Frequently, as part of a settlement, the parties will agree to a permanent injunction that prohibits the defendant from engaging in the same behavior in the future.
An alternative approach is to apply different laws to the issues of originality, ownership, and infringement -- the different elements of the infringement action.  Under this view, a U.S. court would have to apply U.S. law to resolve issues of originality if the work is first published in the U.S.  The law applicable to ownership is likely to be the law of the country that has the most significant relationship to the copyrighted work and to the parties involved.  Finally, under the general principle of '' '''lex loci delicti''' '' (the place of wrong), the law applicable to the actual infringement is likely to be that of the country in which the actual infringement occurred.


At other times, however, the defendant may decide that settlement is not appropriate, and thus will proceed with the litigation.  In order to prevail in a copyright infringement lawsuit, the copyright owner must prove
The dominant view seems to be that courts should apply the law of the place where the infringement actually occurred.  This view is consistent with the territorial limitations of copyright law, as well as the general consensus that the protections granted by copyright are largely domestic.  It is also consistent with Article 5(2) of the Berne Convention, which provides that copyright protection is to be “governed exclusively by the laws of the country where protection is claimed.” At the same time, application of this view to digital acts of infringement may create significant enforcement difficulties and greatly increase the complexity of the case, as digital distribution and reproduction make it easy to disseminate copyrighted works to persons in different countries with different copyright regimes.
 
* that the work is copyrightable
* originality of the work
* that she is the author or holder of the copyright
* that unauthorized exercise of one or more of the exclusive rights occurred.  Each of these requirements is discussed in depth in earlier modules; we review them here briefly.
 
Unauthorized copying and reproduction is the most common form of copyright infringement.  Copying may be demonstrated by direct proof, but such evidence is often unavailable.  Copying may also by demonstrated indirectly, by presenting evidence of substantial similarity between the original work and the copied work, and by demonstrating that the defendant had access to the copyright holder’s work.  Access may be proven by facts showing specifically how defendant could have obtained the copyrighted work. Alternatively, it may be shown by the fact that the copyrighted work was generally available and widely distributed.  The substantial similarity requirement and the access requirement are interconnected in that the more similar the two works are, the less evidence the plaintiff needs to introduce of access.
 
In the library setting, however, some infringing actions are much more straightforward, such when a library patron makes a full copy of a copyrighted book provided by the library, or when he digitally copies a CD or DVD that she borrows.  However, it is not always so clearly cut. Questions may arise, for example, when a librarian copies an article or a portion of a copyrighted work at a patron’s request, or when a librarian seeks to make a copy of an entire copyrighted work for preservation or replacement.  Broadly speaking, most countries allow libraries to make copies of portions of materials available at the library for patrons’ personal use, though some allow this only in instances where the patron requests the material for research or study.  Likewise, many countries permit libraries to make copies of copyrighted materials for purposes of replacing or archiving them, but vary in the requirements and the restrictions of this practice.  Further, only certain categories of works may be subject to these statutory exceptions.  Because the scope of these exceptions and practices can mean the difference between legal activities and an act of copyright infringement, it is important for the librarian to be aware of the local statutes and regulations.
In defending against a claim of copyright infringement, the defendant may claim several defenses and exceptions, such as fair use, statute of limitations, uncopyrightability of the original work, public domain, first sale doctrine, safe-harbor provisions, and other statutory exemptions. You can read more on Exceptions and Limitations on [[Module 4: Rights, Exceptions, and Limitations]];
 
Most countries’ copyright regimes provide a broad range of remedies for copyright infringement.  This is required by, among other, various EU Directives as well as the TRIPs Agreement, which requires members to establish enforcement procedures and remedies sufficient to prevent infringement and to serve as a deterrent to future infringements.  (Art. 41(1).)  The copyright owner can typically seek temporary or permanent injunctive relief, actual damages suffered as the result of the infringement, statutory damages, award of trial costs and attorney fees.  Finally, and under fairly limited circumstances, the infringing party may be found to be criminally liable, and sanctioned with fines and imprisonment.
 
To obtain a preliminary injunction against the infringement, the copyright owner typically has to establish a likelihood of success on the merits of the lawsuit and the possibility of irreparable injury if injunctive relief is not granted.  If infringement is found, the copyright owner may be entitled to a permanent injunction, which results in seizure, impoundment, and destruction of the infringing works.  United States courts routinely grant preliminary injunctions if the plaintiff is able to establish a '''prima facie''' case of infringement.  The seizure and impoundment procedures are part of international treaty obligations under Article 46 of the TRIPs Agreement.
 
The copyright owner is also likely to seek either actual or statutory damages arising from the copyright infringement.  In establishing the amount of money to be recovered, the owner may demonstrate either the actual loss caused by infringement, or the defendant’s profits attributable to the infringement.  The goal is typically to place the copyright owner in a position he would have been but for the infringement.  The copyright owner may also claim injury suffered from not being credited with authorship or injury to business goodwill in computing damages.  Further, some countries allow recovery of immaterial or moral damages in instances where the violation of rights was particularly egregious, or where the infringement was intentional.  For example, Art. 13(1)(a) of the EU Directive 2004/48/EC on the Enforcement of Intellectual Property Rights indicates that in calculating damages, the court may take into account non-economic factors such as the moral prejudice caused to the copyright owner by the infringement.
 
Because precise calculation of damages and lost profits may be difficult or even impossible in copyright infringement cases, most countries allow the copyright owner to choose to recover statutorily-determined damages instead of having to compute and prove actual damages.  For example, under United States law, if the copyright owner chooses this option, the court may award damages of between $750 and $30,000 for each copyrighted work infringed.  If, however, the copyright owner proves that the defendant infringed willfully, the statutory damages award may be as high as $150,000.  Conversely, if the defendant is able to demonstrate that he or she was unaware that his or her acts constituted copyright infringement, the court may reduce the damage award to $200 per work infringed.  The statutory damages set by other countries vary, but the upper limits of the awards tend to be substantial.  Israel, for example, permits an award of statutory damages for infringement of a copyright or a moral right of up to $26,000 at the court’s discretion, while Canada allows for statutory damages of between $500 and $20,000 per work infringed.
 
As noted above, plaintiffs in copyright infringement suits may attempt to recover some or all of their costs, as well as reasonable attorney’s fees.  The courts typically have discretion to decide whether to award costs and fees, and if so, in what amount.  Some countries allow courts to award costs (but not attorney’s fees) to losing parties.
 
In rare cases, copyright infringement may result in criminal sanctions.  Typically, to succeed in a criminal copyright infringement suit, the government must demonstrate that the defendant infringed a copyright, did so willfully, and for commercial advantage or private financial gain.  Persons who knowingly and willfully aid and abet a person committing copyright infringement may be subject to the same criminal penalties as that person.  A good-faith belief by the defendant that the infringing conduct was legal will typically suffice to defeat the “willfulness” requirement in a criminal prosecution.  If, however, the government is able to demonstrate all required elements of criminal copyright infringement, the sanctions may be very steep.  Under United States law, for example, a commercial infringer may be fined up to $250,000 and imprisoned for up to five years.  However, criminal prosecutions of individual infringers are infrequent, and seem largely limited to instances such as willful copying of copyrighted material with the intent to sell or otherwise distribute the copies.


== Responsibilities and Remedies for Librarians ==
In short, it is currently uncertain which laws govern which aspects of copyright disputes that involve more than one country.  Such disputes are becoming increasingly common.  Greater attention to this matter is inevitable.  One hopes that such attention will lead to greater clarity.


====The Role of Librarians====
== The Complex Responsibilities of Librarians ==


Libraries are major purchasers of copyrighted works and make these works available for the public.  Although librarians protect against copyright infringement of library materials whenever possible, the ultimate role of librarians is to provide access to materials and information services, not to enforce copyright law.  Several librarian organizations have articulated their views as to the appropriate balance between protecting the rights of authors and serving the needs of library patrons.   
Libraries are major purchasers of copyrighted works and make these works available to the public.  Although librarians typically seek to prevent copyright infringement of library materials, the ultimate responsibility of librarians is to provide access to materials and information services, not to enforce copyright law.  Several library organizations have attempted to provide guidance as to the appropriate balance between protecting the rights of authors and serving the needs of library patrons.   


For example, the American Library Association Code of Ethics notes that recognition and respect for intellectual property rights is one of the principles that should guide librarians’ ethical decision-making.  However, the Code also emphasizes that the ALA is committed to upholding the principles of intellectual freedom and resisting efforts to censor library resources.   
For example, the American Library Association Code of Ethics notes that recognition and respect for intellectual property rights is one of the principles that should guide librarians’ ethical decision-making.  However, the Code also emphasizes that the ALA is committed to upholding the principles of intellectual freedom and resisting efforts to censor library resources.   


The United Kingdom’s Chartered Institute of Library and Information Professionals (CILIP) supports similar values in its Code of Professional Practice. Its code requires members to “defend the legitimate needs and interests of information users, while upholding the moral and legal rights of the creators and distributors of intellectual property.”   
The United Kingdom’s Chartered Institute of Library and Information Professionals (CILIP) supports similar values in its Code of Professional Practice. Its code requires members to “defend the legitimate needs and interests of information users, while upholding the moral and legal rights of the creators and distributors of intellectual property.”   


Finally, the International Federation of Library Associations and Institutions (IFLA) has released a statement to clarify its position on copyright. The IFLA has acknowledged that librarians have a long-standing role in informing and educating users about the importance of copyright law and compliance with it.  However, it also emphasized that overprotection of copyright leads to unreasonable restrictions to access and knowledge. It has suggested that copyright law should establish clear limitations on liability of third parties, such as librarians, in instances where compliance cannot practically or reasonably be enforced.
Finally, the International Federation of Library Associations and Institutions (IFLA) has released a statement setting forth its position on copyright. The IFLA has acknowledged that librarians have a long-standing role in informing and educating users about the importance of copyright law and compliance with it.  However, it also emphasizes that overprotection of copyright leads to unreasonable restrictions to access and knowledge. It has suggested that copyright law should establish clear limitations on liability of third parties, such as librarians, in instances where compliance cannot practically or reasonably be enforced.


====Lawsuits and Sanctions When Acting In Good Faith: Liability and Safe Harbors====


Most countries have acknowledged that the role of the librarian is to provide access rather than to enforce copyright. To this end they have enacted various statutory exceptions and immunities to libraries and librarians in their copyright laws.  These exceptions vary widely, and librarians should familiarize themselves with the local statutes.  The following will briefly survey some common situations librarians may face, and provide general guidelines librarians should follow to minimize the risk of liability for copyright infringement.


=====Allowing Library Patrons to Use the Library’s Copy Machines or Other Copy Equipment===== 


Patrons frequently wish to make copies of excerpts of library-owned materials.  Unless the book or article the patron is copying is in public domain, such copying is regulated by the country’s copyright statute. If the copying exceeds the maximum set by copyright law, the patron may be committing copyright infringement. In some situations, the library could be held secondarily or indirectly liable for allowing the infringement to take place by providing the equipment. 
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Fortunately, many countries, have enacted specific statutory provisions that shield librarians and libraries for liability for copyright infringement committed by patrons who use photocopiers or other equipment the library provides.  To qualify for the statutory exemption, libraries typically must post a notice and a disclaimer, stating that making of photocopies or other reproductions is governed by copyright law, and that the person using the equipment is liable for any infringement.
==[[Image:casestudy.png|50px|]] Back to the case study ==
Nadia and Angela should first ascertain whether there is any merit to the publisher's complaint.  For example, they should check to determine whether the copyright on the work has expired or whether the inclusion of a copy of the work in the packet of course materials is protected by any of the exceptions and limitations in their nation's copyright laws.  If they have any doubts on this score, they should consult a lawyer.  The lawyer will provide them advice not just concerning the permissibility of their behavior, but also concerning the sanctions they might face if they are unable to resolve the dispute with the publisher amicably.  With the lawyer's aid, they should then decide whether to remove the material at issue from the course materials.


=====Making Copyrighted Materials Available on the Library's Computers=====
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Libraries often make documents available to the public on computers.  If those documents are subject to copyright, and if the library fails to obtain permission for displaying them, it may be subject to liability.  However, as noted above, many countries have enacted so-called “safe harbor” statutory exceptions to the liability of online service providers. To the extent that universities and libraries may be considered such providers, they are shielded from liability for any acts of infringement that occur as long as they comply with the procedures set forth in each country’s laws.
 
=====Making Copies for Library Patrons=====
 
Library patrons may on occasion request that the librarian make copies of copyrighted materials for their personal use.  Many countries provide statutory exceptions that permit librarians to make limited copies.  Some allow such reproductions only for certain specified classes of works such as periodicals, while others make no such distinctions.  Further, some countries only permit copying for purposes such as research, while others do not have this limitation. 
 
By way of example, the United Kingdom allows librarians to make copies of articles in periodicals, but limits such copying to a single article per issue, and requires the patron to prove that the copy is for private noncommercial research or study. Canada, on the other hand, does not have the single-article restriction, but does limit the reproduction exception to articles published in scholarly, scientific, or technical journals. Canada also excludes works of fiction, poetry, etc. from the class of works that may be copied.


The particular statutory requirements differ widely between countries, and librarians should consult their local laws to make sure that any copying meets local copyright requirements.
==[[image:resource.png|50px|]] Additional resources ==


=====Making copies for preservation or replacement; digital copies===== 
In [http://www.law.columbia.edu/law_school/communications/reports/winter06/facforum1 "Secondary Liability for Copyright Infringement in the US"((.link_red))] (2006), Professor Jane Ginsburg provides a good review of the law governing contributory and vicarious copyright infringement.


Librarians are permitted, in certain circumstances, to make copies of library materials for their preservation or replacement. As with the above, these circumstances are typically tightly regulated by local copyright statutes. Many countries permit copying when the library owns the original work and the work is publicly accessible, and when the original is at risk for damage or deterioration, is in obsolete format, or cannot be viewed because of the conditions in which it must be kept.  The permitted reproduction is often limited to a small number of copies. If an appropriate copy is commercially available, the right to reproduce for preservation or replacement is typically much more circumscribed. Further, copying is often limited to paper reproduction, and copies made in digital format typically may not be made available to the public outside of the library premises.
The Stanford Technology Law Review examines the same subject in [http://stlr.stanford.edu/pdf/CDT-grokster.pdf "Interpreting Grokster: Limits on the Scope of Secondary Liability for Copyright Infringement"((.link_green))] (2006).


=====Creating coursepacks for students=====
Another good treatment of the same subject is Jay Dratler, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=872903"A Theory of Secondary Liability for Copyright Infringement"((.link_green))] (2005).


University librarians are sometimes asked to create “coursepacks,” typically a collection of excerpted journals, articles, book chapters, etc. for use by students enrolled in a particular course. In the United States, many universities used to assemble coursepacks without obtaining permission of the copyright owners of the individual articles, believing that such copying qualified for the “fair use” exception for academic purposes.  However, court decisions in the 1990s held that such copying did not constitute fair use, and that the universities must obtain permission from the copyright owners to be able to reproduce their articles in a coursepack. Because the United States doctrine of fair use is more expansive than the comparable exceptions to copyright law in most other countries and was still found not to cover coursepack assembly, it is likely that librarians in other countries must obtain permission from the copyright holders in order to create coursepacks.  To reduce the administrative burden of seeking permission from many different copyright holders, librarians may wish to use private clearance services, who enter into affiliations with academic publishers and obtain blanket clearance licenses for the publisher’s entire catalog, or enter into agreements with collecting societies representing publishers.
A shrewd, forward-looking study of secondary liability doctrines with specific reference to filesharing is Guy Pessach, [http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=924527 "An International-Comparative Perspective on Peer-to-Peer File-Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations' Questions,"((.link_red))] 40 Vanderbilt Journal of Transnational Law 87 (2007).


A thoughtful recent statement by the IFLA concerning the copyright system and its impact on libraries can be found [http://www.ifla.org/en/publications/statement-by-ifla-at-the-inter-sessional-intergovernmental-meeting-on-a-development-age Here((.link_green))].


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== Cases ==


== Back to the case study ==
The following judicial opinions explore and apply some of the principles discussed in this module:
Nadia (the librarian) and Angela (the professor) will make sure that an infringement is unlikely to occur and elaborate best practices around some of their core activities:


· Entire works, such as publishers’ abstracts or book covers, should not be uploaded on the library website without authorization.
[http://cyber.law.harvard.edu/people/tfisher/1984%20Sony%20Abridged.pdf Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)((.link_red))] (secondary liability)
· If publishers’ abstracts can’t be reused verbatim, a summary may well be rewritten by the librarian to describe and index books in the catalog.
· Notices should be placed next to copy machines, computers and other equipement available to the public to inform patrons of their rights and limits.


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[http://www.ipo.gov.uk/ipcass/ipcass-legislation/ipcass-legislation-copyact-1956/ipcass-cbs.htm CBS Songs Limited & Others v. Amstrad Consumer Electronics Plc and Anor., House of Lords, 12 May 1988((.link_green))] (secondary liability)


== Assignment and discussion questions ==
== [[image:question.png|50px|]] Assignment and discussion questions ==


'''Round 1 questions'''
'''[[image:assignment.png|50px|]]Assignment'''


1. Does your country have a safe harbor limiting service providers’ liability? If yes, please describe the mechanism.
1. Does your country have a safe harbor limiting service providers’ liability? If yes, please describe the mechanism.


2. Select one activity of your library, describe it and elaborate best practices to avoid copyright infringement.  For example, you might draft a set of guidelines for professors who prepare coursepacks or a notice to be displayed next to the printing machine or the computers available to patrons.
2. Select one activity of your library, describe it and elaborate best practices to avoid copyright infringement.  For example, you might draft a set of guidelines for professors who prepare course packs or a notice to be displayed next to the printing machine or the computers available to patrons.


'''Round 2 questions'''
'''[[image:discussion.png|50px]]Discussion Question(s)'''


1. Please review the safe harbor policies available in the countries of your colleagues. Which ones offer the most favorable conditions for libraries and for what reasons?
1. Please review the safe harbor policies available in the countries of your colleagues. Which ones offer the most favorable conditions for libraries and for what reasons?


2. Please comment on a few notices of your colleagues. These should be clear and inclusive, but not overbroad.
2. Please comment on a few responses of your colleagues. These should be clear and inclusive, but not overbroad.
 
 
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'''Quick Access'''


* [http://cnx.org/content/col10698/latest/ Connexions]
== Contributors ==
* [http://h2o.law.harvard.edu/ViewProject.do?projectID=1012 Rotisserie]


'''The textbook modules are available both on [http://cnx.org/content/col10698/latest/ Connexions] and on this wiki'''
This module was  created by [[Contributors#tishyevich|Dmitriy Tishyevich]]. It was then edited by a team including [[Contributors#diaz|Sebastian Diaz]], [[Contributors#fisher|William Fisher]], [[Contributors#gasser|Urs Gasser]], [[Contributors#holland|Adam Holland]], [[Contributors#isbell|Kimberley Isbell]], [[Contributors#jaszi|Peter Jaszi]], [[Contributors#maclay|Colin Maclay]], [[Contributors#moshirnia|Andrew Moshirnia]], and [[Contributors#peterson|Chris Peterson]].


* '''[[Module 1]]'''
* '''[[Module 2]]'''
* '''[[Module 3]]'''
* '''[[Module 4]]'''
* '''[[Module 5]]'''
* '''[[Module 6]]'''
* '''[[Module 7]]'''


</div>
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Latest revision as of 13:49, 20 January 2012

Key.png Learning objective

This module will provide a general overview of what it means to infringe another’s copyright and explain the various ways in which infringement may occur. It will also provide a description of some of the issues that commonly arise when a copyright holder decides to bring a copyright infringement lawsuit, and how such cases typically proceed and conclude. It will review some statutory provisions discussed in previous modules that provide liability exemptions for service providers, including libraries. Finally, the module will consider the appropriate roles of librarians with regard to copyright and copyright enforcement.


Casestudy.pngCase Study

Angela leaves Nadia an urgent phone message: “I received a cease and desist letter from a publisher complaining that, by including some of his works in one of my course packs, I am infringing his copyright. What should I do?”

How should Nadia respond?

Lesson.png Lesson

What Infringes Copyright?

Acts That May Infringe Copyright

As we have seen, the unauthorized exercise of an exclusive right of the copyright holder infringes copyright unless the use is covered by one of the exceptions or limitations discussed in Module 4. For example, making a copy of a book or record implicates the exclusive right of reproduction, and, if done without permission in a manner not covered by one of the exceptions, would infringe the rightsholder's copyright.

Infringement may also occur when one violates any of the moral rights recognized by the particular country’s copyright laws. These may include the right of an author to prevent distortion or mutilation of his or her work, the right to be attributed as the author of a work or not to have authorship falsely attributed.

Direct and Indirect Infringement

Copyright law typically distinguishes between two different kinds of infringement.

Direct infringement occurs when one exercises one of the copyright holder’s exclusive rights without authorization or legal justification. As stated in the previous section, this would include copying a book or record without permission.

However, many copyright regimes also recognize forms of indirect or "secondary" infringement. Under certain circumstances, one can be found liable for the acts of another. For example, in the United States, one may be liable for “contributory infringement” if he or she knows about the infringing activity of another and does something to induce, cause, or materially contribute to that infringement. One may be liable for “vicarious infringement” based on the actions of another person, even without actual knowledge of the infringement, if she has the right and ability to control the other person’s acts and benefits directly from the infringement.

Merely providing a device capable of committing direct infringement is usually not enough to incur liability for contributory or vicarious infringement. Generally speaking, if the device is capable of substantial non-infringing uses - like a copy machine or a computer - then the maker of that device will ordinarily not be liable for the actions of the device's users. However, under certain circumstances the maker of a device used by others to commit infringement can be liable for "inducement" of copyright infringement. In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the US Supreme Court held that the distributor of file sharing software could be liable for copyright infringement if the distributor intended to promote the software's use for infringing purposes and took "affirmative steps" to achieve that goal.

Other countries also impose secondary liability for copyright infringement. In addition to punishing direct infringement, for example, the United Kingdom also imposes liability for providing a means of creating unauthorized copies, or supplying sound recordings or films for an infringing performance. Similarly, under South African law, infringement may occur when one either exercises one of the exclusive rights of the copyright holder without license (or other legal justification), or causes another person to do so.

The Liability of Online Service Providers

Many countries have enacted “safe harbor” statutes that protect online service providers such as search engines, internet service providers, libraries or universities from liability for copyright infringement committed by their users. In order to be eligible for these exemptions, the service provider must comply with certain rules.

Some countries require online service providers to comply with so-called “notice and takedown” provisions to be protected by a safe harbor. For example, in the United States, if a copyright holder believes that a file hosted by a service provider infringes her copyright, the copyright holder may submit a notice to the provider to request that the file be removed. The notice must typically include the name of the complaining party and list any infringing materials, including the URL. It must also contain a good-faith statement by the copyright holder that the materials infringe on her copyright. It must conclude with a sworn statement of the accuracy of the notice and the notice provider's authorization to act on behalf of the rightsholder.

Upon receipt of a take-down notice, the service provider must quickly remove the infringing material or disable access to it. It must also notify the individual responsible for the infringing material of its removal. It is not necessary for the copyright holder to obtain a judicial decision that the material is, in fact, infringing in order to send a take-down notice. The safe harbor provisions allow the individual responsible for the content to file what's called a counter-notice to challenge a take-down notice. If the poster submits a counter-notice asserting that the material removed was not infringing, the service provider must notify the copyright holder. If the copyright holder does not file a lawsuit within two weeks, the service provider must then restore access to the material. The statute exempts service providers for liability for its good-faith removal of materials pursuant to a take-down notice, even if the material is ultimately determined not to be infringing.

The European Union has created a similar, though more open-ended, take-down system in Directive 2000/31/EC (Directive on Electronic Commerce) [discussed in Module 2]. This Directive contains different rules for different kinds of service providers. Mere “conduits,” or services that only route and cache online traffic, are exempted from liability entirely. Providers that actually host data, however, are exempted only if they have no “actual knowledge” or “awareness” of illegal activities, and if they act quickly to remove or disable access to the infringing materials once they have been notified.

However, the question of what constitutes “actual knowledge” of hosting infringing materials has been left largely unanswered. This creates serious problems. It is unclear whether a service provider who receives a notice from a copyright holder that it may be hosting infringing materials will be deemed to have "actual knowledge" of hosting the materials. Likewise, it is uncertain what, if any, evidence such notices must include, whether the person sending it is required to identify himself and include a good-faith statement of belief of infringement, and under what circumstances the service provider is obligated to remove the content in order to take advantage of the safe-harbor provisions. The “awareness” of illegal activities criterion is similarly vague, and it is far from clear how rigorously providers must self-regulate and monitor the data they host or provide access to in order to come within the safe harbor provisions.

The European Union directive is broader than the US approach in that it does not provide a clearly articulated, multi-step approach for initiating and responding to take-down notices. Because of this lack of clarity, service providers have incentives to respond aggressively to take-down notices. Further, under the Directive, there does not appear to be a set procedure in place for a user to object to removal of the material, nor are providers required to notify a user when material is removed or made inaccessible.

The approaches taken by other countries to the exemption of online service providers from liability for infringement committed by their users may differ substantially. Australian law, for example, contains an exemption that is similar to that codified in the United States. However, it does not require service providers to notify the person who posted the material that has been removed. Israel likewise has a notice and take-down procedure as part of its safe harbor statute. Unlike the United States, though, it does not require the service provider to remove the material quickly upon the receipt of a complaint. Instead, it allows users three days to respond to the complaint before the material will be removed. Some countries - such as India - do not recognize safe harbor provisions for Internet service providers and may hold them liable for copyright infringement committed by their users even if the provider has no active or direct involvement in that infringement.

Surprisingly enough, these rules may affect some libraries in developing countries. The reason is that some libraries may assist in running or managing the networks in universities with which the libraries are affiliated. In such circumstances, it is possible that some of the libraries' activities may qualify for protection under a safe-harbor provision. If so, librarians should pay close attention to the details of the notice-and-takedown systems (if any) contained in their countries' copyright laws.

Procedures and Penalties

Legal Procedures and Remedies

A copyright holder may decide to file a copyright infringement lawsuit if she believes that infringement of one of her exclusive rights has occurred. Typically, only the holder of the exclusive right that was infringed or a beneficial holder of that right may bring a copyright infringement claim.

The copyright holder may choose to sue the person or persons who committed direct infringement, and / or anyone else who may be found to be liable under the several theories of secondary or indirect infringement described above. In many countries, the copyright holder must bring the claim within a certain period of time after the act of copyright infringement occurs, or it will be barred by the statute of limitations. The length of the statute of limitations varies by country. For example, the statute of limitations for copyright infringement actions is three years in the United States and six years in Australia. (17 U.S.C. section 507(b); Section 134(1) of the Australian Copyright Act.)

At the outset of litigation, the defendant -- who could be an individual user, a librarian, or a library -- should consider whether settlement is a better alternative than proceeding toward full trial. Because the finer points of copyright infringement litigation are often complex, defending against an allegation of copyright infringement can be very expensive. Further, because some countries allow a plaintiff who succeeds in his copyright infringement lawsuit to collect damages as set by statute, instead of having to prove actual damages, the final awards in copyright infringement actions can be large. Finally, statutes or courts may even award attorney’s fees and other costs to the plaintiff if he prevails in his litigation.

In light of these considerations, the defendant may decide that settling with the plaintiff is a better option than facing the uncertainty and potential expense of litigation. In a settlement procedure, once the parties have agreed to a set of terms and once the defendant has complied with those terms, the plaintiff will dismiss his lawsuit. The terms of settlement can vary significantly. In some instances, the plaintiff may be content with the defendant simply removing the materials from her web site. In other cases, the plaintiff may demand that the defendant pay some amount of money in addition to removing the infringing material. Frequently, as part of a settlement, the parties will agree to a permanent injunction that prohibits the defendant from engaging in the same behavior in the future.

At other times, however, the defendant may decide that settlement is not appropriate, and thus will proceed with the litigation. In order to prevail in a copyright infringement lawsuit, the copyright holder must prove:

  • that the work is copyrightable
  • that she is the holder of the copyright
  • that the defendant used the plaintiff's work
  • that unauthorized exercise of one or more of the exclusive rights occurred.

Each of these requirements is discussed in depth in earlier modules; we review them here briefly.

Unauthorized copying and reproduction is the most common form of copyright infringement. Copying may be demonstrated by direct proof, but such evidence is often unavailable. Copying may also be demonstrated indirectly, by presenting evidence of a substantial similarity between the original work and the copied work and by demonstrating that the defendant had access to the copyright holder’s work. Access may be proven by facts showing specifically how the defendant could have obtained the copyrighted work. Alternatively, it may be shown by the fact that the copyrighted work was generally available and widely distributed. The substantial similarity requirement and the access requirement are interconnected in that the more similar the two works are, the less evidence the plaintiff needs to introduce regarding access to the work.

In defending against a claim of copyright infringement, the defendant may claim several defenses and exceptions, such as fair use, statute of limitations, uncopyrightability of the original work, public domain, first sale doctrine, safe-harbor provisions, independent creation, and other statutory exemptions. We examined those Exceptions and Limitations in detail in Module 4.

Most countries’ copyright regimes provide a broad range of remedies for copyright infringement. This is required by several of international agreements discussed in Module 2. The copyright holder can typically seek temporary or permanent injunctive relief, actual damages suffered as the result of the infringement, award of trial costs and attorney fees. Finally, in extremely rare circumstances involving blatant copyright infringement, the infringing party may be found to be criminally liable and sanctioned with fines or imprisonment.

It should be emphasized that successful copyright infringement suits are unusual. The large majority of copyright holders are content with settlements in which defendants agree to cease their behavior and perhaps pay modest damage awards. Libraries are especially unlikely to be targets of successful copyright infringement suits. There are very few reported judicial opinions in any country in which a public or academic library has been found liable for violating the copyright laws. Thus, it is important that librarians be aware of the potential sanctions for copyright infringement, particularly so that they can give reliable advice to their various constituencies. But the libraries themselves should not be unduly worried about the prospect of being sued.

Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations

Despite attempts to create some uniformity in international copyright laws, domestic legal procedures, burdens of proof, and the availability and amount of damages vary considerably across countries. Because of these differences, the plaintiff’s choice of the country and court in which bring her suit becomes important. However, whether a particular forum is available is likely to be limited by the substantive law of copyright and the doctrines of extraterritoriality, choice of law, and conflict of laws.

For instance, a copyright holder cannot usually sue in one country for acts of copyright infringement that occurred in a different country. This is because, with a few exceptions, the doctrine of extraterritoriality means that a country's laws only apply within the geographic borders of that country. Applying this doctrine, courts in the United States have almost uniformly rejected attempts to apply U.S. copyright law to conduct outside of the United States. Most other countries have taken the same position.

The doctrine of extraterritoriality has been complicated, however, by digital technologies and the rise of the Internet. With physical goods, it is usually easy to identify "where" an act of copyright infringement occurred. However, infringement in the digital environment may involve several steps that occur in different countries governed by different copyright regimes. This muddles the question of where an actual infringement took place.

In the United States, courts confronted with such problems have generally held that US laws apply only when the defendant has engaged in some concrete act on U.S. soil. But most countries have yet to be confronted with cases of this sort. How the courts in those countries will respond remains uncertain.

If a particular infringement is alleged to have occurred at least in part in more than one country, a court will engage in a “conflict of laws” analysis to determine which country’s law will govern the infringement action. Because the same act of infringement may occur in several different countries, it is possible that courts in different countries might apply different countries' laws to the same action. Sometimes, a court will rule that the applicable law is the law of the country in which the infringement occurred. As such, that law will govern all elements of the action without regard to the nationality of the author, the country of origin of the copyrighted work, or the place of first publication of the copyrighted work. However, this view has been criticized by some commentators because its application would result in the application of different laws every time the work crosses a national border.

An alternative approach is to apply different laws to the issues of originality, ownership, and infringement -- the different elements of the infringement action. Under this view, a U.S. court would have to apply U.S. law to resolve issues of originality if the work is first published in the U.S. The law applicable to ownership is likely to be the law of the country that has the most significant relationship to the copyrighted work and to the parties involved. Finally, under the general principle of lex loci delicti (the place of wrong), the law applicable to the actual infringement is likely to be that of the country in which the actual infringement occurred.

The dominant view seems to be that courts should apply the law of the place where the infringement actually occurred. This view is consistent with the territorial limitations of copyright law, as well as the general consensus that the protections granted by copyright are largely domestic. It is also consistent with Article 5(2) of the Berne Convention, which provides that copyright protection is to be “governed exclusively by the laws of the country where protection is claimed.” At the same time, application of this view to digital acts of infringement may create significant enforcement difficulties and greatly increase the complexity of the case, as digital distribution and reproduction make it easy to disseminate copyrighted works to persons in different countries with different copyright regimes.

In short, it is currently uncertain which laws govern which aspects of copyright disputes that involve more than one country. Such disputes are becoming increasingly common. Greater attention to this matter is inevitable. One hopes that such attention will lead to greater clarity.

The Complex Responsibilities of Librarians

Libraries are major purchasers of copyrighted works and make these works available to the public. Although librarians typically seek to prevent copyright infringement of library materials, the ultimate responsibility of librarians is to provide access to materials and information services, not to enforce copyright law. Several library organizations have attempted to provide guidance as to the appropriate balance between protecting the rights of authors and serving the needs of library patrons.

For example, the American Library Association Code of Ethics notes that recognition and respect for intellectual property rights is one of the principles that should guide librarians’ ethical decision-making. However, the Code also emphasizes that the ALA is committed to upholding the principles of intellectual freedom and resisting efforts to censor library resources.

The United Kingdom’s Chartered Institute of Library and Information Professionals (CILIP) supports similar values in its Code of Professional Practice. Its code requires members to “defend the legitimate needs and interests of information users, while upholding the moral and legal rights of the creators and distributors of intellectual property.”

Finally, the International Federation of Library Associations and Institutions (IFLA) has released a statement setting forth its position on copyright. The IFLA has acknowledged that librarians have a long-standing role in informing and educating users about the importance of copyright law and compliance with it. However, it also emphasizes that overprotection of copyright leads to unreasonable restrictions to access and knowledge. It has suggested that copyright law should establish clear limitations on liability of third parties, such as librarians, in instances where compliance cannot practically or reasonably be enforced.



Casestudy.png Back to the case study

Nadia and Angela should first ascertain whether there is any merit to the publisher's complaint. For example, they should check to determine whether the copyright on the work has expired or whether the inclusion of a copy of the work in the packet of course materials is protected by any of the exceptions and limitations in their nation's copyright laws. If they have any doubts on this score, they should consult a lawyer. The lawyer will provide them advice not just concerning the permissibility of their behavior, but also concerning the sanctions they might face if they are unable to resolve the dispute with the publisher amicably. With the lawyer's aid, they should then decide whether to remove the material at issue from the course materials.

Resource.png Additional resources

In "Secondary Liability for Copyright Infringement in the US"((.link_red)) (2006), Professor Jane Ginsburg provides a good review of the law governing contributory and vicarious copyright infringement.

The Stanford Technology Law Review examines the same subject in "Interpreting Grokster: Limits on the Scope of Secondary Liability for Copyright Infringement"((.link_green)) (2006).

Another good treatment of the same subject is Jay Dratler, "A Theory of Secondary Liability for Copyright Infringement"((.link_green)) (2005).

A shrewd, forward-looking study of secondary liability doctrines with specific reference to filesharing is Guy Pessach, "An International-Comparative Perspective on Peer-to-Peer File-Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations' Questions,"((.link_red)) 40 Vanderbilt Journal of Transnational Law 87 (2007).

A thoughtful recent statement by the IFLA concerning the copyright system and its impact on libraries can be found Here((.link_green)).

Cases

The following judicial opinions explore and apply some of the principles discussed in this module:

Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)((.link_red)) (secondary liability)

CBS Songs Limited & Others v. Amstrad Consumer Electronics Plc and Anor., House of Lords, 12 May 1988((.link_green)) (secondary liability)

Question.png Assignment and discussion questions

Assignment.pngAssignment

1. Does your country have a safe harbor limiting service providers’ liability? If yes, please describe the mechanism.

2. Select one activity of your library, describe it and elaborate best practices to avoid copyright infringement. For example, you might draft a set of guidelines for professors who prepare course packs or a notice to be displayed next to the printing machine or the computers available to patrons.

Discussion.pngDiscussion Question(s)

1. Please review the safe harbor policies available in the countries of your colleagues. Which ones offer the most favorable conditions for libraries and for what reasons?

2. Please comment on a few responses of your colleagues. These should be clear and inclusive, but not overbroad.

Contributors

This module was created by Dmitriy Tishyevich. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isbell, Peter Jaszi, Colin Maclay, Andrew Moshirnia, and Chris Peterson.


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