Friday Copyright 2010 Wiki Page

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On Friday July 20 we are talking about copyright.

Can the group help me fill this out in advance - say in dot points?

Each country may be different in some way - so please lets all get involved.

Copyright Basics

History of copyright goes back to years following invention of the printing press – 1709 Statute of Anne gave the right to authors – an “Act for Encouragement of Learning and for Securing the Property to Copies of Books to the Rightful Owners”

Subject Matter (what is generally covered)

  • What is it? Books (literary works), Movies, Sound recordings, ...
  • Who owns it? Initially, the creator or his/her employer. Creator may assign the (most) rights. Moral rights.
  • What economic rights does the copyright owner get?
    • Copying (reproduction) -- this happens much more frequently in digital technologies than analog
    • Making available (communication, distribution)
    • Public performance, display, adaptation
  • Moral rights (stay with the creator, even when copyright is transferred and copies are sold)
    • Authorship attribution
    • Integrity
    • Anti-distortion
    • Withdrawal
    • Reclaim
    • Droit de suite (right to follow proceeds of a sale)

How do you use a copyrighted work?

  • Get permission, from agreement or law
  • User rights: "Exceptions and limitations", e.g., fair use

The Law Copyright is strict liability. If you use without right/permission, you're liable, even without intending to.

How do you prove infringement?

  • Independent creation is not a copyright infringement
  • But... it's hard to prove independence
  • Copying may be proved from
    • Access to the original
    • Substantial similarity


The subject matter protected by copyright law has been expanding with the advance of technologies.

Hypos

Are the Chinese Backstreet Boys copyright infringers? http://www.youtube.com/watch?v=N2rZxCrb7iU

  • Copyright owners: Yes, they're making copies/distributing the song. Taking views/money away from the Backstreet Boys.
  • YouTube: It's a parody, not commercial.

Would this breach Australian copyright law? criminally?

  • distributing?
  • infringing copy?
  • prejudicial to the interests of the copyright owner?


Viacom v. YouTube

Viacom: (c)(3)(A)(i),(ii): Actual knowledge and red flag knowledge of infringement. You're advertising filtering technology to content partners. Clearly you know there's something to filter out. Why aren't you using that filtering tech? Repeat infringements of the same material. That shows knowledge. (B): Financial benefit. "Draw" evidenced by pageviews, external links to infringing materials. Added value to the advertising space, to the share value, reflected in YouTube's sale price.

Google/YouTube: We follow notice-and-takedown. The statute puts the burden on Viacom to point out infringing materials. We don't have to monitor in advance of those notices. General knowledge doesn't take us out of the safe-harbor. You're trying to overturn the legislative balance. U.S. notice-and-takedown is already better than notice-and-notice elsewhere. YouTube's financial model doesn't draw people to specific (infringing) content; no ads on the content pages.

What does the future look like: Google's adsense lets Google make money off others' content. It should be paying those who make the attractive content. Compulsory licensing. YouTube facilitates free expression and performance. Keep the lawyers out of our culture. Look at YouTube as a channel. Entertainment industry dinosaurs always want to kill off innovative technologies. They should be looking at them as new opportunities, like Betamax. Personal social responsibility.

Details

EU

In the European Union, there are a number of Directives (EU legislative measures) which have been incorporated into national legislation, but some differences between member states are still apparent. The most important is the EU Copyright Directive (EUCD) of 2001: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML

Some information on copyright in the EU

Australia

Under the current Australian Copyright Act 1968, it covers two types, namely works and subject matter other than works.

Works consist of the following materials: literary works, dramatic works, artistic works, musical works and adaptations of literary, dramatic or musical works. And subject matter other than works consists of the following materials: sound recordings, sound and television broadcasts, cinematograph films and published editions (ie typographical layouts) of works.

Canada

Canada Copyright Act (C-42): http://www.cb-cda.gc.ca/info/act-e.html#wwp[1], Recent act changes: June 2, 2007

Copyright excerpt from Canada’s Media Awareness Network http://www.media-awareness.ca/english/resources/legislation/canadian_law/federal/copyright_act/cdn_copyright_ov.cfm#wwp[2]

Canadian Copyright law protects creative endeavours by ensuring that the creator has the sole right to authorize their publication, performance or reproduction (section 3(1)). Copyright applies to all original:

• literary or textual works: books, pamphlets, poems, computer programs

• dramatic works: films, videos, plays, screenplays and scripts

• musical works: compositions consisting of both words and music, or music only (lyrics without music are considered literary works)

• artistic works: paintings, drawings, maps, photographs, and sculptures

• architectural works

Copyright also applies to three other kinds of subject matter: performer’s performances (section 15); broadcast communication signals (section 21); and sound recordings such as records, cassettes and CDs (section 18).

Proposed Changes Bill C-60 from CIPPIC: Copyright Revision http://www.cippic.ca/en/faqs-resources/bill-c-60/#wwp[3]

Canadian Intellectual Property Office: http://strategis.ic.gc.ca/sc_mrksv/cipo/cp/copy_gd_protect-e.html#2#wwp[4]

Canada’s Copyright Guru: Michael Geist http://www.michaelgeist.ca/#wpp[5]

China

Copyright Law of People's Republic of China provides that:

Article 3 For the purposes of this Law, the term "works" includes works of literature, art, natural science, social science, engineering technology and the like which are expressed in the following forms:

 (1) written works; 
 (2) oral works; 
 (3) musical, dramatic, quyi', choreographic and acrobatic works; 
 (4) works of fine art and architecture; 
 (5) photographic works; 
 (6) cinematographic works and works created by virtue of an analogous method of film production; 
 (7) drawings of engineering designs, and product designs; maps, sketches and other graphic works and model works; 
 (8) computer software; 
 (9) other works as provided for in laws and administrative regulations. 

Article 4 Works the publication or distribution of which is prohibited by law shall not be protected by this Law.

   Copyright owners, in exercising their copyright, shall not violate the Constitution or laws or prejudice the public interests. 

Article 5 This Law shal1 not be applicable to:

 (l) laws; regulations; resolutions, decisions and orders of State organs; other documents of a legislative, administrative or judicial nature; and their official translations; 
 (2) news on current affairs; and 
 (3) calendars, numerical tables and forms of general use, and formulas. 

Article 6 Regulations for the protection of copyright in expressions of folklore shall be established separately by the State Council.

Spain

Under the current Spanish Copyright Act of 1996 the subject matter protected are the original literary, artistic and scientific creations, expressed by any mean or medium, tangible or intangible, presently known or invented in the future, including but not restricted to: books, musical compositions, plays, films and audiovisual works, sculpture, architectural projects, graphics and maps, photographs, software, databases and derivate works.

United States

According to www.copyright.gov/circs/circ1.html#wwp[6], US Copyright law covers the following:

"Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories:

  1. literary works;
  2. musical works, including any accompanying words
  3. dramatic works, including any accompanying music
  4. pantomimes and choreographic works
  5. pictorial, graphic, and sculptural works
  6. motion pictures and other audiovisual works
  7. sound recordings
  8. architectural works

These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”"

Also according to copyright.gov, the following things are not covered by copyright:

  • Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
  • Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
  • Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)


Ownership (who owns copyright)

Australia

Under Australian copyright law:

Usually, the creator (author/maker) owns c/r: s35(2)

Exceptions to the rule :

employees (s35(6));

journalists (s35(4));

commissioned domestic or private photos, paintings, drawings (s35(5);

commissioned sound recordings, films (ss 97(3), 98(3))

Where two or more people collaborate in producing a work, it is considered to be jointly authored: s 10(1)

sound recordings: -the maker (the person who owned the “record” embodying the recording): s97(2)

cinematograph films:-the maker (the person who made the arrangements necessary for the making of the film):98(2) Includes director, but only in relation to right to include the film in a retransmission of a free to air broadcast

tv and sound broadcasts:- the maker (the person who provided the broadcasting service that delivered the broadcast): s99

published editions: -the publisher: s100

Spain

Under Spanish law it owns the work the person who creates the literary, artistic or scientific work, however in some cases (collective works) legal entities could own copyright.

United States

US copyright law states that the author who created the work is the owner of the work except in cases of work for hire. Work for hire includes work completed by an employee, commissioned work (like a screenplay), or in any cases in which the work is designated as a work for hire in the contract.


Rights Involved (what economic and moral rights exist)

In the context of Copyright law of China, Copyright contains two groups of rights, namely economic rights and personality right. However, under the copyright law of Australia and USA, the former group is called exclusive rights of copyright and the later is called moral right.

China

Article 10 of Copyright Law of PRC provides: The term "copyright" shall include the following …property rights:

(l) the right of publication, that is, the right to decide whether to make a work available to the public;

(2) the right of authorship, that is, the right to claim authorship and to have the author's name mentioned in connection with the work;

(3) the right of alteration, that is, the right to alter or authorize others to alter one's work;

(4) the right of integrity, that is, the right to protect one's work against distortion and mutilation;

(5) the right of reproduction;

(6) the right of distribution;

(7) the right of rental;

(8) the right of exhibition;

(9) the right of performance;

(10) the right of showing;

(11) the right of broadcast;

(12) the right of communication over networks;

(13) the right of making cinematographic work;

(14) the right of adaptation;

(15) the right of translation;

(16) the right of compilation; and

(17) any other rights a copyright owner is entitled to enjoy.

A copyright owner may authorize another person to exercise the rights under the preceding paragraphs (5) to (17), and receive remuneration pursuant to an agreement or this Law. A copyright owner may assign, in part or in whole, the rights under the preceding paragraphs (5) to (17), and receive remuneration pursuant to an agreement or this Law.”

Australia

According to Copyright Act 1968 (Cth), “unless the contrary intention appears, copyright, in relation to a work, is the exclusive right”:

Part III works (s 31): • to reproduce in a material form

• to make an adaptation eg translate

• to publish

• to perform in public

• to communicate to the public in electronic form

• rental right - only for software

Part IV materials:

• sound recordings and films (ss 85 and 86):

– make a copy

– cause it to be heard in public

– communicate it to the public

– enter into a commercial rental deal – sound recordings only

• broadcasts (s 87)

– make a recording or copy of the broadcast;

– re-broadcast it or communicate it to the public (other than by broadcasting)

• Published editions (s 88)

– to make a facsimile copy

United States of America

The exclusive rights of a copyright owner are set forth in §106 of the Copyright Act: “Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

Spain

Moral rights: disclosure, authorship, integrity, modification, withdrawal of commerce, access to a unique or rare copy of the work

Economic rights:

- Reproduction - Distribution - Public communication - Transformation - Participation (artistic works - % when selling or auction) - Remuneration for private copy


Limitations/Exceptions/User Rights (what rights exist to use copyright material without the permission or licence of the copyright owner)

Under Spanish law there are limitations in case of quotation, works about current issues, reproduction and loan in public institutions, official and religious ceremonies, parody. For software, there are limitations in case of corrections, security copies, and interoperability information. For databases, there are limitations in case of extractions for private or academic purposes or public security


Infringement (when does infringement occur?)

Generally speaking, under Australian copyright law there are two circumstances of copyright infringement and correspondingly there are two types of infringement, direct and indirect.

Direct Infringement:

- occurs when a person who is not the copyright owner does without permission any of the acts within the copyright owner’s exclusive rights: ss 36(1), 101(1).

- Includes authorising someone else to do an act within the c/r owner’s exclusive rights - ss 36(1A) and 101(1A) – UNSW v Moorhouse [1975]

- In deciding if authorisation has occurred, look at all circumstances including: ss 36(1A) and 101(1A)

   a. power to prevent the doing of the act; 
   b. nature of relationship with person who did the act; and 
   c. any reasonable steps to prevent or avoid the doing of the act

Indirect infringement (ss 37, 38, 102, 103):

- occurs when a person

   a. imports a copyright article into Australia for the purpose of trade (eg sale, hire, prejudicial effect etc), without the authorisation of the copyright owner or 
   b. deals in infringing articles 
 

- Must have known or ought reasonably to have known that the making of the article would have infringed copyright if done in Australia

- Exceptions for: sound recordings and underlying literary, dramatic & musical works; books and periodicals; legitimate (non pirate) computer programs


When are intermediaries liable for the infringement of others?



What is the purpose of safe harbours like those in the DMCA?



Thanks - Brian Fitzgerald