Module 3: The Scope of Copyright Law - Revision history

Ecrowley: /* Extensions of the Scope of Copyright Protection */

2012-01-09T23:06:18Z

Extensions of the Scope of Copyright Protection

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	== Extensions of the Scope of Copyright Protection ==		== Extensions of the Scope of Copyright Protection ==

	In recent years copyright law has expanded to encompass more types of works, last for a longer period of time, and to provide greater protections for copyrighted works. As we saw in [[Module 2: The International Framework]], the Berne Convention, the TRIPS Agreement, and the WIPO Copyright Treaty all set minimum standards of protection that countries must meet, and together expand copyright protection in all countries. For example, copyright law (or the closely related set of neighboring rights) has been extended to cover audio recordings, architectural works, and computer programs. The duration of copyright has expanded over the years, from 14 years under the Statute of Anne to the current minimum of life of the author plus 50 years for most works. Recent treaties have also included provisions prohibiting the circumvention of mechanisms to control reproduction or distribution of copyrighted works.		In recent years copyright law has expanded to encompass more types of works, last for a longer period of time, and provide greater protections for copyrighted works. As we saw in [[Module 2: The International Framework]], the Berne Convention, the TRIPS Agreement, and the WIPO Copyright Treaty all set minimum standards of protection that countries must meet, and together expand copyright protection in all countries. For example, copyright law (or the closely related set of neighboring rights) has been extended to cover audio recordings, architectural works, and computer programs. The duration of copyright has expanded over the years, from 14 years under the Statute of Anne to the current minimum of life of the author plus 50 years for most works. Recent treaties have also included provisions prohibiting the circumvention of mechanisms to control reproduction or distribution of copyrighted works.

	Some of these extensions arguably stimulate additional creativity by incentivizing it. However, the extension of copyright to more kinds of works and for a greater length of time has resulted in the reduction of the amount of material in the public domain. As a result, materials that otherwise could have been used in the creation of new artistic or literary works can no longer be used.		Some of these extensions arguably stimulate additional creativity by incentivizing it. However, the extension of copyright to more kinds of works and for a greater length of time has resulted in the reduction of the amount of material in the public domain. As a result, materials that otherwise could have been used in the creation of new artistic or literary works can no longer be used.
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	Audiovisual or cinematographic works are collective projects that often involve the contributions of several individual authors. Given the large number of people that are involved in their creation, treating each contributor as a joint author of the work would give rise to practical problems. For instance, each contributor would be free to license use of the work to anyone they chose, potentially resulting in use of the work in a manner that other contributors found objectionable.		Audiovisual or cinematographic works are collective projects that often involve the contributions of several individual authors. Given the large number of people that are involved in their creation, treating each contributor as a joint author of the work would give rise to practical problems. For instance, each contributor would be free to license use of the work to anyone they chose, potentially resulting in use of the work in a manner that other contributors found objectionable.

	Different countries have tried to overcome this problem in different ways. The French Intellectual Property Code treats contributors to films as co-authors but includes in the author-producer relationship a transfer of the exploitation rights of the material to the producer. Countries such as the United Kingdom and the United States, by contrast, vest the authorship and copyright ownership of these works in a single person or organization. For instance, the 1988 Copyright, Designs and Patent Act in the United Kingdom typically vests exploitation rights in the producer. By contrast, as was suggested above, the U.S. Copyright Act treats the contributions to a audiovisual or cinematographic work as works for hire, thereby vesting authorship and copyright ownership in one entity, again typically the producer. The Berne Convention recognizes and respects the differences among countries in the allocation of rights in audiovisual and cinematographic works. This phenomenon is described further in the Rights Ownership and Works for Hire topic in [[Module 4: Rights, Exceptions, and Limitations]].		Different countries have tried to overcome this problem in different ways. The French Intellectual Property Code treats contributors to films as co-authors but includes in the author-producer relationship a transfer of the exploitation rights of the material to the producer. Countries such as the United Kingdom and the United States, by contrast, vest the authorship and copyright ownership of these works in a single person or organization. For instance, the 1988 Copyright, Designs and Patent Act in the United Kingdom typically vests exploitation rights in the producer. By contrast, as was suggested above, the U.S. Copyright Act treats the contributions to an audiovisual or cinematographic work as works for hire, thereby vesting authorship and copyright ownership in one entity, again typically the producer. The Berne Convention recognizes and respects the differences among countries in the allocation of rights in audiovisual and cinematographic works. This phenomenon is described further in the Rights Ownership and Works for Hire topic in [[Module 4: Rights, Exceptions, and Limitations]].

	====Computer Programs====		====Computer Programs====
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	* the broadcasting of her work or its communication to the public by any means of wireless diffusion of signs, sounds or images;		* the broadcasting of her work or its communication to the public by any means of wireless diffusion of signs, sounds or images;
	* further communication to the public by wire or by rebroadcasting of the original broadcast of the work, when this communication is made by an organization other than the original broadcaster;		* further communication to the public by wire or by rebroadcasting of the original broadcast of the work when this communication is made by an organization other than the original broadcaster;
	*the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.		*the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.

Ecrowley: /* Owning a Copy vs. Owning a Copyright */

2012-01-09T23:03:30Z

Owning a Copy vs. Owning a Copyright

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	Ordinarily, when the creator of a work sells or transfers a copy of it to another person, she does not surrender her copyright unless she expressly agrees to do so. So, for example, the writer of a letter or an email message retains the copyright in the letter even after he has sent it to the recipient.		Ordinarily, when the creator of a work sells or transfers a copy of it to another person, she does not surrender her copyright unless she expressly agrees to do so. So, for example, the writer of a letter or an email message retains the copyright in the letter even after he has sent it to the recipient.

	Even though the owner of a physical copy of a copyrighted work may not be entitled to copy it without permission, he or she is usually free to sell or rent it to other people. The rule that creates this privilege is known as the "first-sale" doctrine. As we will see, it is subject to certain exceptions involving commercial rental of some types of material.		Even though the owner of a physical copy of a copyrighted work may not be entitled to copy it without permission, he or she is usually free to sell or rent it to other people. The rule that creates this privilege is known as the "first sale" doctrine. As we will see, it is subject to certain exceptions involving commercial rental of some types of material.

	For the most part, the lawful owner of a copy of a copyrighted work is also free to destroy or mutilate it. However, some treaties and national legal systems recognize “moral rights” that set limits on the freedom of the owner to act in these ways. The Berne Convention, for example, specifies that: ''"Independently of the author’s economic rights, and even after transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."''		For the most part, the lawful owner of a copy of a copyrighted work is also free to destroy or mutilate it. However, some treaties and national legal systems recognize “moral rights” that set limits on the freedom of the owner to act in these ways. The Berne Convention, for example, specifies that: ''"Independently of the author’s economic rights, and even after transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."''

Kliu: /* The Relationship Between Copyright Infringement and Other Unauthorized Activities */

2011-01-11T02:56:25Z

The Relationship Between Copyright Infringement and Other Unauthorized Activities

← Older revision		Revision as of 02:56, 11 January 2011
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	'''“Piracy”''' over the years has taken on meaning in a number of different contexts. In history, the term is frequently used to describe the actions of individuals at high sea. The origins of the word itself are not completely clear; however, readings have linked it to the word “Pirata,” which the Romans had used to refer to people who robbed ships at sea.		'''“Piracy”''' over the years has taken on meaning in a number of different contexts. In history, the term is frequently used to describe the actions of individuals at high sea. The origins of the word itself are not completely clear; however, readings have linked it to the word “Pirata,” which the Romans had used to refer to people who robbed ships at sea.

	Countries including the U.S., Great Britain, Bolivia, and Brazil have addressed the issue of piracy within their penal codes, common law, and statutes. Specifically, in the U.S. Constitution, Article I, Section 8, Congress is given the power “to define and punish Piracies and Felonies committed on the high Seas.” U.S. Const. art. I, § 8. And, in Bolivia, the Penal Code of November 6th, 1834 punishes individuals for committing “piracy,” which is generally defined as the act of “performing on the sea any act of depredation or of violence.” Alternatively, in many countries such as Bulgaria, Haiti, and Albania, there are no laws relating to piracy. For a listing of the piracy laws of different countries, see Stanley Morrison’s article “Codification of International Law: Part V: A Collection of Piracy Laws of Various Countries.”		Countries including the U.S., Great Britain, Bolivia, and Brazil have addressed the issue of piracy within their penal codes, common law, and statutes. Specifically, in the U.S. Constitution, Article I, Section 8, Congress is given the power “to define and punish Piracies and Felonies committed on the high Seas.” [http://www.usconstitution.net/xconst_A1Sec8.html U.S. Const. art. I, § 8]. And, in Bolivia, the Penal Code of November 6th, 1834 punishes individuals for committing “piracy,” which is generally defined as the act of “performing on the sea any act of depredation or of violence.” Alternatively, in many countries such as Bulgaria, Haiti, and Albania, there are no laws relating to piracy. For a listing of the piracy laws of different countries, see Stanley Morrison’s article “Codification of International Law: Part V: A Collection of Piracy Laws of Various Countries.”

	Looking at the numerous definitions of piracy contained within the laws of different countries, it is clear that the meaning of the word “piracy” has grown to encompass more than its old historical definition. As noted by an article in law.jrank.org, in the U.S., “[t]he traditional definition of an independent criminal was broadened to include sailors acting on commissions from foreign nations, if and when their commissions violated U.S. treaties with their government.”		Looking at the numerous definitions of piracy contained within the laws of different countries, it is clear that the meaning of the word “piracy” has grown to encompass more than its old historical definition. As noted by an [http://law.jrank.org/pages/9216/Piracy.html article in law.jrank.org], in the U.S., “[t]he traditional definition of an independent criminal was broadened to include sailors acting on commissions from foreign nations, if and when their commissions violated U.S. treaties with their government.”

	Today, antipiracy law is defined by various international treaties, including the Geneva Convention of April 29, 1958 and the 1982 United Nations Convention on the Law of the Sea, as well as a number of country-specific antipiracy laws. However, in addition to its original high-seas definition, the term has also recently been used to refer to the unauthorized use or production of a copyrighted material. Though the term “piracy” itself has yet to appear within the Copyright Law, it has become common within both academic and public circles to refer to various acts of copyright infringement as acts of piracy. Particular examples include the “unauthorized storage, reproduction, distribution, or sale of intellectual property . . . [of] music CDs, movie videocassettes, and even fashion designs.” Article on Piracy at law.jrank.org. For the most part, the term has been used to refer to infringing activities related to computer software and audiovisual works. As some writers hypothesize, this is most likely due to the development of technologies that enable quick methods of copyright and dissemination of software and audiovisual works. Russell Nelson, in his article on antipiracy issues concerning database protection, notes that the “pace of technology development,” has made it possible for “rapid, inexpensive copying and manipulation” of databases. He argues that this in turn has led to lower incentives for database providers to invest in making high-quality databases.		Today, antipiracy law is defined by various international treaties, including the Geneva Convention of April 29, 1958 and the 1982 United Nations Convention on the Law of the Sea, as well as a number of country-specific antipiracy laws. However, in addition to its original high-seas definition, the term has also recently been used to refer to the unauthorized use or production of a copyrighted material. Though the term “piracy” itself has yet to appear within the Copyright Law, it has become common within both academic and public circles to refer to various acts of copyright infringement as acts of piracy. Particular examples include the “unauthorized storage, reproduction, distribution, or sale of intellectual property . . . [of] music CDs, movie videocassettes, and even fashion designs.” [http://law.jrank.org/pages/9216/Piracy.html Article on Piracy at law.jrank.org]. For the most part, the term has been used to refer to infringing activities related to computer software and audiovisual works. As some writers hypothesize, this is most likely due to the development of technologies that enable quick methods of copyright and dissemination of software and audiovisual works. Russell Nelson, in his article on antipiracy issues concerning database protection, notes that the “pace of technology development,” has made it possible for “rapid, inexpensive copying and manipulation” of databases. He argues that this in turn has led to lower incentives for database providers to invest in making high-quality databases.

	As the word “piracy” is increasingly used with acts of copyright infringement, it may be difficult to draw a distinction between the terms “copyright infringement” and “piracy.” On the one hand, the written laws of many nations only recognize acts of piracy in relation to violent activities that occur on the high seas; however, on the other hand, law-making bodies in many nations, including the U.S. and the United Kingdom, have used the word “piracy” to describe infringing intellectual property activities. Specifically, in the U.S., the legislature has considered acts such as the Collections of Information Antipiracy Act and the Peer-to-Peer Piracy Prevention Act. In 1982, the legislature had also passed the Piracy and Counterfeiting Amendments Act, which enhances the criminal penalties of “piracy and counterfeiting of records, tapes (sound recording), motion pictures, and audio visual works” (quoting Douglas Blair Foster in “Recent Developments in U.S. Trademark, Copyright and Semiconductor Chip Anticounterfeiting Laws”). But even with these developments, the term “piracy” fails to appear in U.S. copyright law.		As the word “piracy” is increasingly used with acts of copyright infringement, it may be difficult to draw a distinction between the terms “copyright infringement” and “piracy.” On the one hand, the written laws of many nations only recognize acts of piracy in relation to violent activities that occur on the high seas; however, on the other hand, law-making bodies in many nations, including the U.S. and the United Kingdom, have used the word “piracy” to describe infringing intellectual property activities. Specifically, in the U.S., the legislature has considered acts such as the Collections of Information Antipiracy Act and the Peer-to-Peer Piracy Prevention Act. In 1982, the legislature had also passed the Piracy and Counterfeiting Amendments Act, which enhances the criminal penalties of “piracy and counterfeiting of records, tapes (sound recording), motion pictures, and audio visual works” (quoting Douglas Blair Foster in “Recent Developments in U.S. Trademark, Copyright and Semiconductor Chip Anticounterfeiting Laws”). But even with these developments, the term “piracy” fails to appear in U.S. copyright law.
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	In addition to the use of piracy in government, numerous legal scholars over the years have also incorporated the word “piracy” in legal contexts addressing global intellectual property issues. The international TRIPS agreement (as discussed in Module 2: The International Framework) also refers piracy as the act of copyright infringement (see Article 51, Article 61, and Article 69). But, since the term is associated with the violence that accompanies the seizure of ships on the high seas, many others still argue that it is misleading when used in connection with the unauthorized use of creative works.		In addition to the use of piracy in government, numerous legal scholars over the years have also incorporated the word “piracy” in legal contexts addressing global intellectual property issues. The international TRIPS agreement (as discussed in Module 2: The International Framework) also refers piracy as the act of copyright infringement (see Article 51, Article 61, and Article 69). But, since the term is associated with the violence that accompanies the seizure of ships on the high seas, many others still argue that it is misleading when used in connection with the unauthorized use of creative works.

	'''“Counterfeiting”''' is generally defined as an act of imitation. Most often, the term refers to the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity. Legally, the act of counterfeiting is governed primarily by trademark law and the law of unfair competition. However, more recently, counterfeiting has also been used interchangeably to refer to acts of copyright infringement. As TechDirt reports, at 2010 U.S. congressional committee hearings on intellectual property enforcement, the U.S. Department of Homeland Security intentionally juxtaposed the words “counterfeiting” and “copyright infringement” in order to “suggest that they are the same thing.” And, as Roy Schestowitz reports in his article on counterfeiting and copyright infringement, the Intellectual Property Owners Association (IPO) has also been dissatisfied with the Anti-Counterfeiting Trade Agreement (ACTA) for “lump[ing] together counterfeiting and copyright infringement.” The harms that are attributed to copyright infringement are usually harder to show than the harms that flow from counterfeiting. Therefore, many commentators feel that these efforts and others that are designed to muddle the distinction between the two terms are being used to exaggerate the harms associated with copyright infringement.		'''“Counterfeiting”''' is generally defined as an act of imitation. Most often, the term refers to the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity. Legally, the act of counterfeiting is governed primarily by trademark law and the law of unfair competition. However, more recently, counterfeiting has also been used interchangeably to refer to acts of copyright infringement. As [http://www.techdirt.com/articles/20100722/01263010314.shtml TechDirt] reports, at 2010 U.S. congressional committee hearings on intellectual property enforcement, the U.S. Department of Homeland Security intentionally juxtaposed the words “counterfeiting” and “copyright infringement” in order to “suggest that they are the same thing.” And, as [http://techrights.org/2010/07/26/recording-industry-and-misinformation/ Roy Schestowitz] reports in his article on counterfeiting and copyright infringement, the Intellectual Property Owners Association (IPO) has also been dissatisfied with the Anti-Counterfeiting Trade Agreement (ACTA) for “lump[ing] together counterfeiting and copyright infringement.” The harms that are attributed to copyright infringement are usually harder to show than the harms that flow from counterfeiting. Therefore, many commentators feel that these efforts and others that are designed to muddle the distinction between the two terms are being used to exaggerate the harms associated with copyright infringement.

	The U.S. International Trade Administration distinguishes between the terms counterfeit and copyright infringement by referring to the former as “fake goods” and the latter as the “the act of reproducing movies, music, books or other copyrighted works without permission from the copyright owner.” Similarly, in other countries such as the United Kingdom, Thailand, and Ghana, the terms counterfeit(ing) and copyright infringements are not always used to refer to the same acts. In the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement) and ACTA , the terms “counterfeit trademark goods” and “pirated copyright goods” are also assigned different definitions (see TRIPS, Article 51, n. 14 and ACTA, Article 1.X (final draft)).		The [http://www.stopfakes.gov/sf_what.asp#q6 U.S. International Trade Administration] distinguishes between the terms counterfeit and copyright infringement by referring to the former as “fake goods” and the latter as the “the act of reproducing movies, music, books or other copyrighted works without permission from the copyright owner.” Similarly, in other countries such as the United Kingdom, Thailand, and Ghana, the terms counterfeit(ing) and copyright infringements are not always used to refer to the same acts. In the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement) and ACTA , the terms “counterfeit trademark goods” and “pirated copyright goods” are also assigned different definitions (see [http://www.wto.org/english/res_e/booksp_e/analytic_index_e/trips_03_e.htm TRIPS, Article 51, n. 14] and [http://www.ustr.gov/webfm_send/2379 ACTA, Article 1.X (final draft)]).

	Although both counterfeiting and copyright infringement may lead to criminal sanctions, the penalties associated with counterfeiting are typically greater than those associated with copyright infringement. Specifically, in the U.S., the “Trademark Counterfeiting Act, 18 U.S.C. § 2320(a), provides penalties of up to ten years imprisonment and a $2 million fine for a defendant who ‘intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services,’” whereas the maximum punishment associated with criminal copyright infringement is “3 years imprisonment and a $250,000 fine under 17 U.S.C. § 506(a) and 18 U.S.C. § 2319” (report made by the U.S. Department of Justice’s Task Force on Intellectual Property Enforcement). However, in U.S. civil suits, juries have awarded damages of more than $1 billion for suits arising out of copyright infringement (see article: “Jury gives Oracle $1.3 billion in copyright damages from SAP”). Similarly, in Thailand, the penalties for counterfeiting can include “fines up to 400,000 Baht . . . and prison sentences up to four years” whereas the penalties for copyright infringement “ranges from 20,000 up to 200,000 Baht” if the offense was not committed for a commercial purpose (see http://asialaw.tripod.com/articles/anticounterfeiting.html and http://www.itd.or.th/en/node/427). Typically, in most countries, the act of counterfeiting is viewed as a more serious crime because of “its willful and intentional nature” (Clark Lackert, “International Efforts against Trademark Counterfeiting”).		Although both counterfeiting and copyright infringement may lead to criminal sanctions, the penalties associated with counterfeiting are typically greater than those associated with copyright infringement. Specifically, in the U.S., the “Trademark Counterfeiting Act, 18 U.S.C. § 2320(a), provides penalties of up to ten years imprisonment and a $2 million fine for a defendant who ‘intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services,’” whereas the maximum punishment associated with criminal copyright infringement is “3 years imprisonment and a $250,000 fine under 17 U.S.C. § 506(a) and 18 U.S.C. § 2319” (report made by the [http://www.ustr.gov/webfm_send/2379 U.S. Department of Justice’s Task Force on Intellectual Property Enforcement]). However, in U.S. civil suits, juries have awarded damages of more than $1 billion for suits arising out of copyright infringement (see article: [http://arstechnica.com/tech-policy/news/2010/11/jury-gives-oracle-13-billion-in-copyright-damages-from-sap.ars “Jury gives Oracle $1.3 billion in copyright damages from SAP”]). Similarly, in Thailand, the penalties for counterfeiting can include “fines up to 400,000 Baht . . . and prison sentences up to four years” whereas the penalties for copyright infringement “ranges from 20,000 up to 200,000 Baht” if the offense was not committed for a commercial purpose (see http://asialaw.tripod.com/articles/anticounterfeiting.html and http://www.itd.or.th/en/node/427). Typically, in most countries, the act of counterfeiting is viewed as a more serious crime because of “its willful and intentional nature” (Clark Lackert, “International Efforts against Trademark Counterfeiting”).

	Counterfeiting has been a serious problem for intellectual property right holders over the years. Each year, numerous organizations release statistics that estimate counterfeiting to cost nations around the world hundreds of billions of dollars. However, even though many nations have anti-counterfeiting laws, individuals wishing to assert their intellectual property rights in this area still face many difficulties. First, differences in national law that exist between countries prevent many rights holders from effectively targeting counterfeiters (Gerard van der Wal and Freya van Schaik, “The Combat against Counterfeiting and Piracy in the European Union”). With the finalization of ACTA and its future impact on anti-counterfeiting law, this difficulty may prove to be less of a concern; however, there is debate whether many nations including the U.S. and India may choose to fully embrace the agreement’s terms. Second, “lack of resources” and the existence of “confusion among legal professionals, law enforcement agencies and local government officials” also limit the ability of many nations to combat counterfeiting (Clark Lackert, “International Efforts against Trademark Counterfeiting”). And third, the “legal distinction [that exists] between counterfeiting and legitimate use of intellectual property rights” continue to prevent many from seeking redress from counterfeiters. For example, in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), a U.S. Supreme Court case that dealt with the intersection of copyright and trademark law, the Court held that copyrighted works that have fallen into the public domain can no longer be afforded protection under U.S. trademark law. Considering that the act of counterfeiting is mostly addressed by trademark law, this holding may be problematic for individuals in the U.S. who seek to prevent others from making counterfeit copies of their products that have fallen into the public domain.		Counterfeiting has been a serious problem for intellectual property right holders over the years. Each year, numerous organizations release statistics that estimate counterfeiting to cost nations around the world hundreds of billions of dollars. However, even though many nations have anti-counterfeiting laws, individuals wishing to assert their intellectual property rights in this area still face many difficulties. First, differences in national law that exist between countries prevent many rights holders from effectively targeting counterfeiters (Gerard van der Wal and Freya van Schaik, “The Combat against Counterfeiting and Piracy in the European Union”). With the finalization of ACTA and its future impact on anti-counterfeiting law, this difficulty may prove to be less of a concern; however, there is debate whether many nations including the U.S. and India may choose to fully embrace the agreement’s terms. Second, “lack of resources” and the existence of “confusion among legal professionals, law enforcement agencies and local government officials” also limit the ability of many nations to combat counterfeiting (Clark Lackert, “International Efforts against Trademark Counterfeiting”). And third, the “legal distinction [that exists] between counterfeiting and legitimate use of intellectual property rights” continue to prevent many from seeking redress from counterfeiters. For example, in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), a U.S. Supreme Court case that dealt with the intersection of copyright and trademark law, the Court held that copyrighted works that have fallen into the public domain can no longer be afforded protection under U.S. trademark law. Considering that the act of counterfeiting is mostly addressed by trademark law, this holding may be problematic for individuals in the U.S. who seek to prevent others from making counterfeit copies of their products that have fallen into the public domain.

Kliu: /* The Relationship Between Copyright Infringement and Other Unauthorized Activities */

2011-01-11T02:49:45Z

The Relationship Between Copyright Infringement and Other Unauthorized Activities

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	In recent years, numerous articles have commented on the growing prevalence of plagiarism, especially in academic circles. Chris Park, in his article on plagiarism among university students, finds that plagiarism is on the rise these days especially given the growth of the Internet and increasing access to digital sources. Fintan Culwin, in his article on plagiarism in the academic sphere, also observes such a rise in plagiarism and proposes that educational institutions need to adopt “pro-active anti-plagiarism polic[ies]” in order to combat this problematic rise.		In recent years, numerous articles have commented on the growing prevalence of plagiarism, especially in academic circles. Chris Park, in his article on plagiarism among university students, finds that plagiarism is on the rise these days especially given the growth of the Internet and increasing access to digital sources. Fintan Culwin, in his article on plagiarism in the academic sphere, also observes such a rise in plagiarism and proposes that educational institutions need to adopt “pro-active anti-plagiarism polic[ies]” in order to combat this problematic rise.

	In countries all around, common social sanctions for plagiarism include reputational harm, social disapproval, or expulsion or suspension from an academic institution. As hinted above, the customs and attitudes pertaining to plagiarism in these countries vary widely. For example, in Germany, Helene Hegemann, a young author who was found to have used, without permission or attribution, significant passages from other novels in her recent book, felt minimal societal backlash as her book continued to have high sales and was also announced as one of the finalists for a prize at the Leipzig Book Fair. Whereas, in the U.S., when young author Kaavya Viswanathan admitted to copying certain passages from another author’s works, her publisher immediately issued a mass recall of her book. Attitudes toward plagiarism even vary somewhat between academic and professional disciplines. For example, the definition of plagiarism adopted by the American Historical Association is different from that adopted by the Modern Language Association. Plagiarism by corporate executives is also treated less seriously than plagiarism by novelists, academics, or journalists.		In countries all around, common social sanctions for plagiarism include reputational harm, social disapproval, or expulsion or suspension from an academic institution. As hinted above, the customs and attitudes pertaining to plagiarism in these countries vary widely. For example, in Germany, [http://www.nytimes.com/2010/02/12/world/europe/12germany.html Helene Hegemann], a young author who was found to have used, without permission or attribution, significant passages from other novels in her recent book, felt minimal societal backlash as her book continued to have high sales and was also announced as one of the finalists for a prize at the Leipzig Book Fair. Whereas, in the U.S., when young author [http://www.nytimes.com/2006/04/28/books/28author.html?_r=1 Kaavya Viswanathan] admitted to copying certain passages from another author’s works, her publisher immediately issued a mass recall of her book. Attitudes toward plagiarism even vary somewhat between academic and professional disciplines. For example, the definition of plagiarism adopted by the [http://www.historians.org/pubs/free/professionalstandards.cfm#Plagiarism American Historical Association] is different from that adopted by the [http://www.english.udel.edu/kharbot/write/mlaandpla.html Modern Language Association]. Plagiarism by [http://www.nytimes.com/2006/05/03/business/media/03leonhardt.html corporate executives] is also treated less seriously than plagiarism by novelists, academics, or journalists.

	'''“Piracy”''' over the years has taken on meaning in a number of different contexts. In history, the term is frequently used to describe the actions of individuals at high sea. The origins of the word itself are not completely clear; however, readings have linked it to the word “Pirata,” which the Romans had used to refer to people who robbed ships at sea.		'''“Piracy”''' over the years has taken on meaning in a number of different contexts. In history, the term is frequently used to describe the actions of individuals at high sea. The origins of the word itself are not completely clear; however, readings have linked it to the word “Pirata,” which the Romans had used to refer to people who robbed ships at sea.
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	Although both counterfeiting and copyright infringement may lead to criminal sanctions, the penalties associated with counterfeiting are typically greater than those associated with copyright infringement. Specifically, in the U.S., the “Trademark Counterfeiting Act, 18 U.S.C. § 2320(a), provides penalties of up to ten years imprisonment and a $2 million fine for a defendant who ‘intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services,’” whereas the maximum punishment associated with criminal copyright infringement is “3 years imprisonment and a $250,000 fine under 17 U.S.C. § 506(a) and 18 U.S.C. § 2319” (report made by the U.S. Department of Justice’s Task Force on Intellectual Property Enforcement). However, in U.S. civil suits, juries have awarded damages of more than $1 billion for suits arising out of copyright infringement (see article: “Jury gives Oracle $1.3 billion in copyright damages from SAP”). Similarly, in Thailand, the penalties for counterfeiting can include “fines up to 400,000 Baht . . . and prison sentences up to four years” whereas the penalties for copyright infringement “ranges from 20,000 up to 200,000 Baht” if the offense was not committed for a commercial purpose (see http://asialaw.tripod.com/articles/anticounterfeiting.html and http://www.itd.or.th/en/node/427). Typically, in most countries, the act of counterfeiting is viewed as a more serious crime because of “its willful and intentional nature” (Clark Lackert, “International Efforts against Trademark Counterfeiting”).		Although both counterfeiting and copyright infringement may lead to criminal sanctions, the penalties associated with counterfeiting are typically greater than those associated with copyright infringement. Specifically, in the U.S., the “Trademark Counterfeiting Act, 18 U.S.C. § 2320(a), provides penalties of up to ten years imprisonment and a $2 million fine for a defendant who ‘intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services,’” whereas the maximum punishment associated with criminal copyright infringement is “3 years imprisonment and a $250,000 fine under 17 U.S.C. § 506(a) and 18 U.S.C. § 2319” (report made by the U.S. Department of Justice’s Task Force on Intellectual Property Enforcement). However, in U.S. civil suits, juries have awarded damages of more than $1 billion for suits arising out of copyright infringement (see article: “Jury gives Oracle $1.3 billion in copyright damages from SAP”). Similarly, in Thailand, the penalties for counterfeiting can include “fines up to 400,000 Baht . . . and prison sentences up to four years” whereas the penalties for copyright infringement “ranges from 20,000 up to 200,000 Baht” if the offense was not committed for a commercial purpose (see http://asialaw.tripod.com/articles/anticounterfeiting.html and http://www.itd.or.th/en/node/427). Typically, in most countries, the act of counterfeiting is viewed as a more serious crime because of “its willful and intentional nature” (Clark Lackert, “International Efforts against Trademark Counterfeiting”).

	Counterfeiting has been a serious problem for intellectual property right holders over the years. Each year, numerous organizations release statistics that estimate counterfeiting to cost nations around the world hundreds of billions of dollars. However, even though many nations have anti-counterfeiting laws, individuals wishing to assert their intellectual property rights in this area still face many difficulties. First, differences in national law that exist between countries prevent many rights holders from effectively targeting counterfeiters (Gerard van der Wal and Freya van Schaik, “The Combat against Counterfeiting and Piracy in the European Union”). With the finalization of ACTA and its future impact on anti-counterfeiting law, this difficulty may prove to be less of a concern; however, there is debate whether many nations including the U.S. and India may choose to fully embrace the agreement’s terms. Second, “lack of resources” and the existence of “confusion among legal professionals, law enforcement agencies and local government officials” also limit the ability of many nations to combat counterfeiting (Clark Lackert, “International Efforts against Trademark Counterfeiting”). And third, the “legal distinction [that exists] between counterfeiting and legitimate use of intellectual property rights” continue to prevent many from seeking redress from counterfeiters. For example, in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), a U.S. Supreme Court case that dealt with the intersection of copyright and trademark law, the Court held that copyrighted works that have fallen into the public domain can no longer be afforded protection under U.S. trademark law. Considering that the act of counterfeiting is mostly addressed by trademark law, this holding may be problematic for individuals in the U.S. who seek to prevent others from making counterfeit copies of their products that have fallen into the public domain.		Counterfeiting has been a serious problem for intellectual property right holders over the years. Each year, numerous organizations release statistics that estimate counterfeiting to cost nations around the world hundreds of billions of dollars. However, even though many nations have anti-counterfeiting laws, individuals wishing to assert their intellectual property rights in this area still face many difficulties. First, differences in national law that exist between countries prevent many rights holders from effectively targeting counterfeiters (Gerard van der Wal and Freya van Schaik, “The Combat against Counterfeiting and Piracy in the European Union”). With the finalization of ACTA and its future impact on anti-counterfeiting law, this difficulty may prove to be less of a concern; however, there is debate whether many nations including the U.S. and India may choose to fully embrace the agreement’s terms. Second, “lack of resources” and the existence of “confusion among legal professionals, law enforcement agencies and local government officials” also limit the ability of many nations to combat counterfeiting (Clark Lackert, “International Efforts against Trademark Counterfeiting”). And third, the “legal distinction [that exists] between counterfeiting and legitimate use of intellectual property rights” continue to prevent many from seeking redress from counterfeiters. For example, in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), a U.S. Supreme Court case that dealt with the intersection of copyright and trademark law, the Court held that copyrighted works that have fallen into the public domain can no longer be afforded protection under U.S. trademark law. Considering that the act of counterfeiting is mostly addressed by trademark law, this holding may be problematic for individuals in the U.S. who seek to prevent others from making counterfeit copies of their products that have fallen into the public domain.

	== Copyright Duration ==		== Copyright Duration ==

Kliu: Updated section on Counterfeiting

2010-11-25T00:33:44Z

Updated section on Counterfeiting

← Older revision		Revision as of 00:33, 25 November 2010
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	In addition to the use of piracy in government, numerous legal scholars over the years have also incorporated the word “piracy” in legal contexts addressing global intellectual property issues. The international TRIPS agreement (as discussed in Module 2: The International Framework) also refers piracy as the act of copyright infringement (see Article 51, Article 61, and Article 69). But, since the term is associated with the violence that accompanies the seizure of ships on the high seas, many others still argue that it is misleading when used in connection with the unauthorized use of creative works.		In addition to the use of piracy in government, numerous legal scholars over the years have also incorporated the word “piracy” in legal contexts addressing global intellectual property issues. The international TRIPS agreement (as discussed in Module 2: The International Framework) also refers piracy as the act of copyright infringement (see Article 51, Article 61, and Article 69). But, since the term is associated with the violence that accompanies the seizure of ships on the high seas, many others still argue that it is misleading when used in connection with the unauthorized use of creative works.

	'''“Counterfeiting”''' is defined ~~in various ways~~. Most often, the term refers to the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity. ~~Counterfeiting in this sense~~ is governed primarily by trademark law and the law of unfair competition, not by copyright ~~law~~. ~~However~~, the ~~proposed [~~http://~~cyber~~.~~law~~.~~harvard~~.~~edu~~/~~copyrightforlibrarians~~/~~Module_2:_The_International_Framework#The_proposed_Anti-Counterfeiting_Trade_Agreement_~~.~~28ACTA~~.~~29 Anti-Counterfeiting Trade Agreement~~ (~~ACTA~~)], ~~currently under negotiation~~ (~~as discussed~~ in ~~[[Module 2: The International Framework]]~~), may, ~~when finished~~, ~~require member countries~~ to ~~expand~~ the ~~coverage~~ of copyright law in ~~this area~~.		'''“Counterfeiting”''' is generally defined as an act of imitation. Most often, the term refers to the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity. Legally, the act of counterfeiting is governed primarily by trademark law and the law of unfair competition. However, more recently, counterfeiting has also been used interchangeably to refer to acts of copyright infringement. As TechDirt reports, at 2010 U.S. congressional committee hearings on intellectual property enforcement, the U.S. Department of Homeland Security intentionally juxtaposed the words “counterfeiting” and “copyright infringement” in order to “suggest that they are the same thing.” And, as Roy Schestowitz reports in his article on counterfeiting and copyright infringement, the Intellectual Property Owners Association (IPO) has also been dissatisfied with the Anti-Counterfeiting Trade Agreement (ACTA) for “lump[ing] together counterfeiting and copyright infringement.” The harms that are attributed to copyright infringement are usually harder to show than the harms that flow from counterfeiting. Therefore, many commentators feel that these efforts and others that are designed to muddle the distinction between the two terms are being used to exaggerate the harms associated with copyright infringement.

			The U.S. International Trade Administration distinguishes between the terms counterfeit and copyright infringement by referring to the former as “fake goods” and the latter as the “the act of reproducing movies, music, books or other copyrighted works without permission from the copyright owner.” Similarly, in other countries such as the United Kingdom, Thailand, and Ghana, the terms counterfeit(ing) and copyright infringements are not always used to refer to the same acts. In the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS agreement) and ACTA , the terms “counterfeit trademark goods” and “pirated copyright goods” are also assigned different definitions (see TRIPS, Article 51, n. 14 and ACTA, Article 1.X (final draft)).

			Although both counterfeiting and copyright infringement may lead to criminal sanctions, the penalties associated with counterfeiting are typically greater than those associated with copyright infringement. Specifically, in the U.S., the “Trademark Counterfeiting Act, 18 U.S.C. § 2320(a), provides penalties of up to ten years imprisonment and a $2 million fine for a defendant who ‘intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services,’” whereas the maximum punishment associated with criminal copyright infringement is “3 years imprisonment and a $250,000 fine under 17 U.S.C. § 506(a) and 18 U.S.C. § 2319” (report made by the U.S. Department of Justice’s Task Force on Intellectual Property Enforcement). However, in U.S. civil suits, juries have awarded damages of more than $1 billion for suits arising out of copyright infringement (see article: “Jury gives Oracle $1.3 billion in copyright damages from SAP”). Similarly, in Thailand, the penalties for counterfeiting can include “fines up to 400,000 Baht . . . and prison sentences up to four years” whereas the penalties for copyright infringement “ranges from 20,000 up to 200,000 Baht” if the offense was not committed for a commercial purpose (see http://asialaw.tripod.com/articles/anticounterfeiting.html and http://www.itd.or.th/en/node/427). Typically, in most countries, the act of counterfeiting is viewed as a more serious crime because of “its willful and intentional nature” (Clark Lackert, “International Efforts against Trademark Counterfeiting”).

			Counterfeiting has been a serious problem for intellectual property right holders over the years. Each year, numerous organizations release statistics that estimate counterfeiting to cost nations around the world hundreds of billions of dollars. However, even though many nations have anti-counterfeiting laws, individuals wishing to assert their intellectual property rights in this area still face many difficulties. First, differences in national law that exist between countries prevent many rights holders from effectively targeting counterfeiters (Gerard van der Wal and Freya van Schaik, “The Combat against Counterfeiting and Piracy in the European Union”). With the finalization of ACTA and its future impact on anti-counterfeiting law, this difficulty may prove to be less of a concern; however, there is debate whether many nations including the U.S. and India may choose to fully embrace the agreement’s terms. Second, “lack of resources” and the existence of “confusion among legal professionals, law enforcement agencies and local government officials” also limit the ability of many nations to combat counterfeiting (Clark Lackert, “International Efforts against Trademark Counterfeiting”). And third, the “legal distinction [that exists] between counterfeiting and legitimate use of intellectual property rights” continue to prevent many from seeking redress from counterfeiters. For example, in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), a U.S. Supreme Court case that dealt with the intersection of copyright and trademark law, the Court held that copyrighted works that have fallen into the public domain can no longer be afforded protection under U.S. trademark law. Considering that the act of counterfeiting is mostly addressed by trademark law, this holding may be problematic for individuals in the U.S. who seek to prevent others from making counterfeit copies of their products that have fallen into the public domain.

	== Copyright Duration ==		== Copyright Duration ==

Kliu: Added additional text to piracy section

2010-11-15T04:14:44Z

Added additional text to piracy section

← Older revision		Revision as of 04:14, 15 November 2010
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	As the word “piracy” is increasingly used with acts of copyright infringement, it may be difficult to draw a distinction between the terms “copyright infringement” and “piracy.” On the one hand, the written laws of many nations only recognize acts of piracy in relation to violent activities that occur on the high seas; however, on the other hand, law-making bodies in many nations, including the U.S. and the United Kingdom, have used the word “piracy” to describe infringing intellectual property activities. Specifically, in the U.S., the legislature has considered acts such as the Collections of Information Antipiracy Act and the Peer-to-Peer Piracy Prevention Act. In 1982, the legislature had also passed the Piracy and Counterfeiting Amendments Act, which enhances the criminal penalties of “piracy and counterfeiting of records, tapes (sound recording), motion pictures, and audio visual works” (quoting Douglas Blair Foster in “Recent Developments in U.S. Trademark, Copyright and Semiconductor Chip Anticounterfeiting Laws”). But even with these developments, the term “piracy” fails to appear in U.S. copyright law.		As the word “piracy” is increasingly used with acts of copyright infringement, it may be difficult to draw a distinction between the terms “copyright infringement” and “piracy.” On the one hand, the written laws of many nations only recognize acts of piracy in relation to violent activities that occur on the high seas; however, on the other hand, law-making bodies in many nations, including the U.S. and the United Kingdom, have used the word “piracy” to describe infringing intellectual property activities. Specifically, in the U.S., the legislature has considered acts such as the Collections of Information Antipiracy Act and the Peer-to-Peer Piracy Prevention Act. In 1982, the legislature had also passed the Piracy and Counterfeiting Amendments Act, which enhances the criminal penalties of “piracy and counterfeiting of records, tapes (sound recording), motion pictures, and audio visual works” (quoting Douglas Blair Foster in “Recent Developments in U.S. Trademark, Copyright and Semiconductor Chip Anticounterfeiting Laws”). But even with these developments, the term “piracy” fails to appear in U.S. copyright law.

	In addition to the use of piracy in government, numerous legal scholars over the years have also incorporated the word “piracy” in legal contexts addressing global intellectual property issues. But, since the term is associated with the violence that accompanies the seizure of ships on the high seas, many others still argue that it is misleading when used in connection with the unauthorized use of creative works.		In addition to the use of piracy in government, numerous legal scholars over the years have also incorporated the word “piracy” in legal contexts addressing global intellectual property issues. The international TRIPS agreement (as discussed in Module 2: The International Framework) also refers piracy as the act of copyright infringement (see Article 51, Article 61, and Article 69). But, since the term is associated with the violence that accompanies the seizure of ships on the high seas, many others still argue that it is misleading when used in connection with the unauthorized use of creative works.

	'''“Counterfeiting”''' is defined in various ways. Most often, the term refers to the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity. Counterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. However, the proposed [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework#The_proposed_Anti-Counterfeiting_Trade_Agreement_.28ACTA.29 Anti-Counterfeiting Trade Agreement (ACTA)], currently under negotiation (as discussed in [[Module 2: The International Framework]]), may, when finished, require member countries to expand the coverage of copyright law in this area.		'''“Counterfeiting”''' is defined in various ways. Most often, the term refers to the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity. Counterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. However, the proposed [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework#The_proposed_Anti-Counterfeiting_Trade_Agreement_.28ACTA.29 Anti-Counterfeiting Trade Agreement (ACTA)], currently under negotiation (as discussed in [[Module 2: The International Framework]]), may, when finished, require member countries to expand the coverage of copyright law in this area.

Kliu: Update of piracy section

2010-11-12T03:45:44Z

Update of piracy section

← Older revision		Revision as of 03:45, 12 November 2010
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	In countries all around, common social sanctions for plagiarism include reputational harm, social disapproval, or expulsion or suspension from an academic institution. As hinted above, the customs and attitudes pertaining to plagiarism in these countries vary widely. For example, in Germany, Helene Hegemann, a young author who was found to have used, without permission or attribution, significant passages from other novels in her recent book, felt minimal societal backlash as her book continued to have high sales and was also announced as one of the finalists for a prize at the Leipzig Book Fair. Whereas, in the U.S., when young author Kaavya Viswanathan admitted to copying certain passages from another author’s works, her publisher immediately issued a mass recall of her book. Attitudes toward plagiarism even vary somewhat between academic and professional disciplines. For example, the definition of plagiarism adopted by the American Historical Association is different from that adopted by the Modern Language Association. Plagiarism by corporate executives is also treated less seriously than plagiarism by novelists, academics, or journalists.		In countries all around, common social sanctions for plagiarism include reputational harm, social disapproval, or expulsion or suspension from an academic institution. As hinted above, the customs and attitudes pertaining to plagiarism in these countries vary widely. For example, in Germany, Helene Hegemann, a young author who was found to have used, without permission or attribution, significant passages from other novels in her recent book, felt minimal societal backlash as her book continued to have high sales and was also announced as one of the finalists for a prize at the Leipzig Book Fair. Whereas, in the U.S., when young author Kaavya Viswanathan admitted to copying certain passages from another author’s works, her publisher immediately issued a mass recall of her book. Attitudes toward plagiarism even vary somewhat between academic and professional disciplines. For example, the definition of plagiarism adopted by the American Historical Association is different from that adopted by the Modern Language Association. Plagiarism by corporate executives is also treated less seriously than plagiarism by novelists, academics, or journalists.

	'''“Piracy”''' has no ~~strict~~ definition ~~within (or outside~~ of~~) copyright~~ law. ~~In recent years~~, the term has become a common ~~way for some~~ to refer to ~~unauthorized~~ and ~~unexcused reproductions~~ of ~~audio~~ and ~~video recordings~~. ~~However~~, the copyright laws ~~do not themselves refer~~ to “piracy.~~” Since~~ the term is associated with the violence that accompanies the seizure of ships on the high seas, many argue that it is misleading when used in connection with unauthorized ~~uses~~ of creative works.		'''“Piracy”''' over the years has taken on meaning in a number of different contexts. In history, the term is frequently used to describe the actions of individuals at high sea. The origins of the word itself are not completely clear; however, readings have linked it to the word “Pirata,” which the Romans had used to refer to people who robbed ships at sea.

			Countries including the U.S., Great Britain, Bolivia, and Brazil have addressed the issue of piracy within their penal codes, common law, and statutes. Specifically, in the U.S. Constitution, Article I, Section 8, Congress is given the power “to define and punish Piracies and Felonies committed on the high Seas.” U.S. Const. art. I, § 8. And, in Bolivia, the Penal Code of November 6th, 1834 punishes individuals for committing “piracy,” which is generally defined as the act of “performing on the sea any act of depredation or of violence.” Alternatively, in many countries such as Bulgaria, Haiti, and Albania, there are no laws relating to piracy. For a listing of the piracy laws of different countries, see Stanley Morrison’s article “Codification of International Law: Part V: A Collection of Piracy Laws of Various Countries.”

			Looking at the numerous definitions of piracy contained within the laws of different countries, it is clear that the meaning of the word “piracy” has grown to encompass more than its old historical definition. As noted by an article in law.jrank.org, in the U.S., “[t]he traditional definition of an independent criminal was broadened to include sailors acting on commissions from foreign nations, if and when their commissions violated U.S. treaties with their government.”

			Today, antipiracy law is defined by various international treaties, including the Geneva Convention of April 29, 1958 and the 1982 United Nations Convention on the Law of the Sea, as well as a number of country-specific antipiracy laws. However, in addition to its original high-seas definition, the term has also recently been used to refer to the unauthorized use or production of a copyrighted material. Though the term “piracy” itself has yet to appear within the Copyright Law, it has become common within both academic and public circles to refer to various acts of copyright infringement as acts of piracy. Particular examples include the “unauthorized storage, reproduction, distribution, or sale of intellectual property . . . [of] music CDs, movie videocassettes, and even fashion designs.” Article on Piracy at law.jrank.org. For the most part, the term has been used to refer to infringing activities related to computer software and audiovisual works. As some writers hypothesize, this is most likely due to the development of technologies that enable quick methods of copyright and dissemination of software and audiovisual works. Russell Nelson, in his article on antipiracy issues concerning database protection, notes that the “pace of technology development,” has made it possible for “rapid, inexpensive copying and manipulation” of databases. He argues that this in turn has led to lower incentives for database providers to invest in making high-quality databases.

			As the word “piracy” is increasingly used with acts of copyright infringement, it may be difficult to draw a distinction between the terms “copyright infringement” and “piracy.” On the one hand, the written laws of many nations only recognize acts of piracy in relation to violent activities that occur on the high seas; however, on the other hand, law-making bodies in many nations, including the U.S. and the United Kingdom, have used the word “piracy” to describe infringing intellectual property activities. Specifically, in the U.S., the legislature has considered acts such as the Collections of Information Antipiracy Act and the Peer-to-Peer Piracy Prevention Act. In 1982, the legislature had also passed the Piracy and Counterfeiting Amendments Act, which enhances the criminal penalties of “piracy and counterfeiting of records, tapes (sound recording), motion pictures, and audio visual works” (quoting Douglas Blair Foster in “Recent Developments in U.S. Trademark, Copyright and Semiconductor Chip Anticounterfeiting Laws”). But even with these developments, the term “piracy” fails to appear in U.S. copyright law.

			In addition to the use of piracy in government, numerous legal scholars over the years have also incorporated the word “piracy” in legal contexts addressing global intellectual property issues. But, since the term is associated with the violence that accompanies the seizure of ships on the high seas, many others still argue that it is misleading when used in connection with the unauthorized use of creative works.

	'''“Counterfeiting”''' is defined in various ways. Most often, the term refers to the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity. Counterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. However, the proposed [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework#The_proposed_Anti-Counterfeiting_Trade_Agreement_.28ACTA.29 Anti-Counterfeiting Trade Agreement (ACTA)], currently under negotiation (as discussed in [[Module 2: The International Framework]]), may, when finished, require member countries to expand the coverage of copyright law in this area.		'''“Counterfeiting”''' is defined in various ways. Most often, the term refers to the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity. Counterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. However, the proposed [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework#The_proposed_Anti-Counterfeiting_Trade_Agreement_.28ACTA.29 Anti-Counterfeiting Trade Agreement (ACTA)], currently under negotiation (as discussed in [[Module 2: The International Framework]]), may, when finished, require member countries to expand the coverage of copyright law in this area.

Kliu: Update of plagiarism section

2010-10-21T03:02:11Z

Update of plagiarism section

← Older revision		Revision as of 03:02, 21 October 2010
Line 116:		Line 116:
	Some uses of copyrighted works may not infringe copyright but may violate other legal rules. Others may violate nonlegal social norms. Still others may be lawful uses that are socially approved. This complex pattern of norms finds expression in a variety of terms that are frequently confused. We explain some of them below; they will be studied further in [[Module 7: Enforcement]].		Some uses of copyrighted works may not infringe copyright but may violate other legal rules. Others may violate nonlegal social norms. Still others may be lawful uses that are socially approved. This complex pattern of norms finds expression in a variety of terms that are frequently confused. We explain some of them below; they will be studied further in [[Module 7: Enforcement]].

	'''"Plagiarism"''' is the use of ~~someone else's ideas or words~~ without ~~properly crediting the source~~. It is ~~entirely separate from~~ copyright law. Plagiarism is not a ~~violation~~ of ~~legal rules~~, ~~but~~ instead ~~of social norms~~. ~~Common social sanctions~~ for plagiarism are ~~expulsion or suspension from school~~, ~~discharge from~~ a ~~job~~, and ~~social disapproval~~.		'''"Plagiarism"''' can be loosely defined as the use of another individual’s creative output without proper attribution. It is not a legal term that is recognized by copyright law but is instead a violation of social norms. However, even though plagiarism is not officially recognized as a crime, Malcolm Gladwell, in his article “Something Borrowed,” comments that it has gone from being “bad literary manners” to something that closely resembles a crime.

			In her article “Copy Wrong: Plagiarism, Process, Property, and the Law,” Laurie Stearns explains that copyright infringement and plagiarism “diverge in respect to three main aspects of the offense: copying, attribution, and intent.” With respect to copying, Stearns explains that plagiarism, unlike copyright infringement, does not distinguish between copying ideas and expressions nor concern itself with the amount of material that is copied. In terms of attribution, she notes that the U.S. legal system for copyright does not address the concept of attribution. In fact, there can and have been situations where infringement has been found to occur even when the author was properly attributed. However, she does go on to admit that in countries where an artist’s moral rights are recognized, certain authors may be able to claim a right to attribution. For example, in Mozambique, the law requires that the author of a work be given the right to “claim authorship of his work, in particular the right to ensure that, as far as possible, his name is mentioned in the usual way on copies of the work in relation to every public use of his or her work.” Lastly, when looking at intent, Stearns states that a common defense to plagiarism is to show that one did not mean to plagiarize (i.e. one lacked the intent to plagiarize and had instead made a honest mistake). However, for copyright infringement, she comments that one’s intent is never considered because the offense is one judged under strict liability standards.
			From her observations of the differences that exist between plagiarism and copyright infringement, Stearns concludes that the key reason why the two are so different lies in their areas of focus: plagiarism, on the one hand, is concerned with the relationship between things, whereas copyright infringement is more focused on results. For example, in a copyright infringement suit, we are more interested in identifying and quantifying the harm that a plaintiff suffers as a result of an unauthorized use instead of looking at how that use may have violated certain moral standards associated with the creative process itself.

	~~Customs~~ and attitudes pertaining to plagiarism vary ~~somewhat by country~~. For example, ~~recently~~ a young ~~German novelist~~ was found to have ~~copied~~ without permission or attribution significant passages from other novels. ~~[http://www~~.~~nytimes~~.~~com/2010/02/12/world/europe/12germany.html She has been treated much more leniently((.link_green))] than [http://www.nytimes.com/2006/04/28/books/28author.html?_r=1 a~~ young ~~American~~ author ~~who~~ a ~~few years ago engaged in very similar behavior.((~~.~~link_green))]~~ Attitudes toward plagiarism even vary somewhat between academic disciplines. For example, ~~[http://www.historians.org/pubs/free/professionalstandards.cfm#Plagiarism~~ the definition of plagiarism adopted by the American Historical Association~~((.link_green))]~~ is ~~not exactly the same as [http://www.english.udel.edu/kharbot/write/mlaandpla.html the standard~~ adopted by the Modern Language Association((.~~link_green))]. Finally, [http://www.nytimes.com/2006/05/03/business/media/03leonhardt.html plagiarism~~ by corporate executives~~((.link_green))]~~ is ~~often~~ treated ~~as much~~ less ~~serious~~ than plagiarism by novelists, academics, or journalists.		In recent years, numerous articles have commented on the growing prevalence of plagiarism, especially in academic circles. Chris Park, in his article on plagiarism among university students, finds that plagiarism is on the rise these days especially given the growth of the Internet and increasing access to digital sources. Fintan Culwin, in his article on plagiarism in the academic sphere, also observes such a rise in plagiarism and proposes that educational institutions need to adopt “pro-active anti-plagiarism polic[ies]” in order to combat this problematic rise.

			In countries all around, common social sanctions for plagiarism include reputational harm, social disapproval, or expulsion or suspension from an academic institution. As hinted above, the customs and attitudes pertaining to plagiarism in these countries vary widely. For example, in Germany, Helene Hegemann, a young author who was found to have used, without permission or attribution, significant passages from other novels in her recent book, felt minimal societal backlash as her book continued to have high sales and was also announced as one of the finalists for a prize at the Leipzig Book Fair. Whereas, in the U.S., when young author Kaavya Viswanathan admitted to copying certain passages from another author’s works, her publisher immediately issued a mass recall of her book. Attitudes toward plagiarism even vary somewhat between academic and professional disciplines. For example, the definition of plagiarism adopted by the American Historical Association is different from that adopted by the Modern Language Association. Plagiarism by corporate executives is also treated less seriously than plagiarism by novelists, academics, or journalists.

	'''“Piracy”''' has no strict definition within (or outside of) copyright law. In recent years, the term has become a common way for some to refer to unauthorized and unexcused reproductions of audio and video recordings. However, the copyright laws do not themselves refer to “piracy.” Since the term is associated with the violence that accompanies the seizure of ships on the high seas, many argue that it is misleading when used in connection with unauthorized uses of creative works.		'''“Piracy”''' has no strict definition within (or outside of) copyright law. In recent years, the term has become a common way for some to refer to unauthorized and unexcused reproductions of audio and video recordings. However, the copyright laws do not themselves refer to “piracy.” Since the term is associated with the violence that accompanies the seizure of ships on the high seas, many argue that it is misleading when used in connection with unauthorized uses of creative works.

BerkmanSysop: /* The Relationship Between Copyright Infringement and Other Unauthorized Activities */

2010-03-19T15:25:16Z

The Relationship Between Copyright Infringement and Other Unauthorized Activities

← Older revision		Revision as of 15:25, 19 March 2010
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	'''“Piracy”''' has no strict definition within (or outside of) copyright law. In recent years, the term has become a common way for some to refer to unauthorized and unexcused reproductions of audio and video recordings. However, the copyright laws do not themselves refer to “piracy.” Since the term is associated with the violence that accompanies the seizure of ships on the high seas, many argue that it is misleading when used in connection with unauthorized uses of creative works.		'''“Piracy”''' has no strict definition within (or outside of) copyright law. In recent years, the term has become a common way for some to refer to unauthorized and unexcused reproductions of audio and video recordings. However, the copyright laws do not themselves refer to “piracy.” Since the term is associated with the violence that accompanies the seizure of ships on the high seas, many argue that it is misleading when used in connection with unauthorized uses of creative works.

	'''“Counterfeiting”''' is defined in various ways. Most often, the term refers to the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity. Counterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. However, the proposed [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:~~_The_international_framework~~#The_proposed_Anti-Counterfeiting_Trade_Agreement_.28ACTA.29 Anti-Counterfeiting Trade Agreement (ACTA)], currently under negotiation (as discussed in [[Module 2: The International Framework]]), may, when finished, require member countries to expand the coverage of copyright law in this area.		'''“Counterfeiting”''' is defined in various ways. Most often, the term refers to the creation or distribution of imitations of genuine works with the intent to deceive the public about their authenticity. Counterfeiting in this sense is governed primarily by trademark law and the law of unfair competition, not by copyright law. However, the proposed [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework#The_proposed_Anti-Counterfeiting_Trade_Agreement_.28ACTA.29 Anti-Counterfeiting Trade Agreement (ACTA)], currently under negotiation (as discussed in [[Module 2: The International Framework]]), may, when finished, require member countries to expand the coverage of copyright law in this area.

	== Copyright Duration ==		== Copyright Duration ==

BerkmanSysop: /* The Concept of Originality */

2010-03-19T15:20:43Z

The Concept of Originality

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	====The Concept of Originality====		====The Concept of Originality====

	Neither the [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:~~_The_international_framework~~#Berne_Convention Berne Convention] nor the [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:~~_The_international_framework~~#The_Agreement_on_Trade_Related_Aspects_of_Intellectual_Property_Rights_.28TRIPS.29 TRIPS Agreement] expressly requires originality for a work to be protected by copyright. However, almost all countries require some level of originality for a work to qualify for copyright protection. Unfortunately, there is no standard international minimum of originality. Each country independently sets the originality standard that a work must meet. In some countries, such as the United States and Canada, originality requires only "independent conception" and a "bare minimum" of creativity. In other countries, such as France, Spain and developing countries influenced by the civil-law tradition, originality is defined as the “imprint of the author’s personality” on the work.		Neither the [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework#Berne_Convention Berne Convention] nor the [http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework#The_Agreement_on_Trade_Related_Aspects_of_Intellectual_Property_Rights_.28TRIPS.29 TRIPS Agreement] expressly requires originality for a work to be protected by copyright. However, almost all countries require some level of originality for a work to qualify for copyright protection. Unfortunately, there is no standard international minimum of originality. Each country independently sets the originality standard that a work must meet. In some countries, such as the United States and Canada, originality requires only "independent conception" and a "bare minimum" of creativity. In other countries, such as France, Spain and developing countries influenced by the civil-law tradition, originality is defined as the “imprint of the author’s personality” on the work.

	In most countries, the work of authorship need not be novel, ingenious, or have aesthetic merit in order to satisfy the originality requirement. For example, the U.S. Supreme Court in <i>Feist Pulbications v. Rural Telephone Service Co.</i>, 499 U.S. 340 (1991), defined originality as requiring only that the work be independently created by the author and that it possess “at least some minimal degree of creativity.” According to the Court, the “requisite level of creativity is extremely low” and a work need only “possess some creative spark no matter how crude, humble or obvious it might be.”		In most countries, the work of authorship need not be novel, ingenious, or have aesthetic merit in order to satisfy the originality requirement. For example, the U.S. Supreme Court in <i>Feist Pulbications v. Rural Telephone Service Co.</i>, 499 U.S. 340 (1991), defined originality as requiring only that the work be independently created by the author and that it possess “at least some minimal degree of creativity.” According to the Court, the “requisite level of creativity is extremely low” and a work need only “possess some creative spark no matter how crude, humble or obvious it might be.”