Definitions
Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following:
An “anonymous work” is a work on the copies or phonorecords of which no natural person is identified as author.
An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.
“Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
The “Berne Convention” is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto.
The “best edition” of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.
A person's “children” are that person's immediate offspring, whether legitimate or not, and any children legally adopted by that person.
A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.
A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.
A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.
A “Copyright Royalty Judge” is a Copyright Royalty Judge appointed under section 802 of this title, and includes any individual serving as an interim Copyright Royalty Judge under such section.
“Copyright owner”, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.
A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
A “device”, “machine”, or “process” is one now known or later developed.
A “digital transmission” is a transmission in whole or in part in a digital or other nonanalog format.
To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
An “establishment” is a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.
A “food service or drinking establishment” is a restaurant, inn, bar, tavern, or any other similar place of business in which the public or patrons assemble for the primary purpose of being served food or drink, in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.9
The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.
A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
The “Geneva Phonograms Convention” is the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, concluded at Geneva, Switzerland, on October 29, 1971.
The “gross square feet of space” of an establishment means the entire interior space of that establishment, and any adjoining outdoor space used to serve patrons, whether on a seasonal basis or otherwise.
The terms “including” and “such as” are illustrative and not limitative.
An “international agreement” is —
(1) the Universal Copyright Convention;
(2) the Geneva Phonograms Convention;
(3) the Berne Convention;
(4) the WTO Agreement;
(5) the WIPO Copyright Treaty;
(6) the WIPO Performances and Phonograms Treaty; and
(7) any other copyright treaty to which the United States is a party.
A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.
“Motion pictures” are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.
The term “motion picture exhibition facility’’ means a movie theater, screening room, or other venue that is being used primarily for the exhibition of a copyrighted motion picture, if such exhibition is open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.
To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.
A “performing rights society” is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners of such works, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc.
“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.
“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.
For purposes of section 513, a “proprietor” is an individual, corporation, partnership, or other entity, as the case may be, that owns an establishment or a food service or drinking establishment, except that no owner or operator of a radio or television station licensed by the Federal Communications Commission, cable system or satellite carrier, cable or satellite carrier service or programmer, provider of online services or network access or the operator of facilities therefor, telecommunications company, or any other such audio or audiovisual service or programmer now known or as may be developed in the future, commercial subscription music service, or owner or operator of any other transmission service, shall under any circumstances be deemed to be a proprietor.
A “pseudonymous work” is a work on the copies or phonorecords of which the author is identified under a fictitious name.
“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
To perform or display a work “publicly” means —
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
“Registration”, for purposes of sections 205(c)(2), 405, 406, 410(d), 411, 412, and 506(e), means a registration of a claim in the original or the renewed and extended term of copyright.
“Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.
“State” includes the District of Columbia and the Commonwealth of Puerto Rico, and any territories to which this title is made applicable by an Act of Congress.
A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.
A “transmission program” is a body of material that, as an aggregate, has been produced for the sole purpose of transmission to the public in sequence and as a unit.
To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.
A “treaty party” is a country or intergovernmental organization other than the United States that is a party to an international agreement.
The “United States”, when used in a geographical sense, comprises the several States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government.
For purposes of section 411, a work is a “United States work” only if —
(1) in the case of a published work, the work is first published —
(A) in the United States;
(B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States;
(C) simultaneously in the United States and a foreign nation that is not a treaty party; or
(D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States;
(2) in the case of an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or, in the case of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States; or
(3) in the case of a pictorial, graphic, or sculptural work incorporated in a building or structure, the building or structure is located in the United States.
A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.
The author's “widow” or “widower” is the author's surviving spouse under the law of the author's domicile at the time of his or her death, whether or not the spouse has later remarried.
The “WIPO Copyright Treaty” is the WIPO Copyright Treaty concluded at Geneva, Switzerland, on December 20, 1996.
The “WIPO Performances and Phonograms Treaty” is the WIPO Performances and Phonograms Treaty concluded at Geneva, Switzerland, on December 20, 1996.
A “work of visual art” is —
(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
A work of visual art does not include —
(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.
A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person's official duties.
A “work made for hire” is —
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that amendment —
(A) shall be considered or otherwise given any legal significance, or
(B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination,
by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made For Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations.
The terms “WTO Agreement” and “WTO member country” have the meanings given those terms in paragraphs (9) and (10), respectively, of section 2 of the Uruguay Round Agreements Act.
Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship 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; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Copyright Law in the USA
Copyright occurs automatically when both of two conditions are satisfied:- the creation of an original work and
- "fixation of that work in any tangible medium of expression."
Loading copyrighted material into a computer's semiconductor memory does create a fixation that satisfies the legal test for copying.
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9thCir. 1993), cert. dismissed, 510 U.S. 1033 (1994).
The current law in the USA requires neither a notice of copyright (e.g., "Copyright 1997 Ronald B. Standler") nor registration of the work with the U.S. Copyright Office. 17 USC §§ 401(a), 407(a), 408(a). However, if a work does have a notice, then an infringer can not claim a "defense based on innocent infringement in mitigation of actual or statutory damages". 17 USC §401(d). And if a work is registered, then:
- the registration is prima facie evidence of the validity of the copyright in litigation for copyright infringement. 17 USC §410(c).
- the author may file suit for infringement of the copyright. 17 USC §411(a).
- the author may seek an award of statutory damages between US$ 750 and US$ 30 000 (i.e., the author is entitled to money from the infringer, without the author needing to show financial loss from the infringement). If the infringement was "willful", the statutory damages can go as high as US$ 150 000. 17 USC §§412, 504(c).
- a court may require the infringer to pay all of the attorney's fees of the author. 17 USC §§412, 505.
An author of a copyrighted work has the following exclusive rights conferred by 17 USC §106:
- to reproduce the work (e.g., to make copies)
- to prepare derivative works (e.g., translation, abridgment, condensation, adaptation)
- to distribute copies to the public (e.g., publish, sell, rental, lease, or lending)
- to perform the work publicly
- to display the work publicly
The Berne Convention for the Protection of Literary and Artistic Works, Article 6bis(1), states:
- Independently of the author's economic rights, and even after the 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.
Unfortunately, the U.S. national law does not recognize such "moral rights" of authors (except for the special case of authors of visual art, such as paintings, 17 USC § 106A), although such rights for all authors are clearly specified in The Berne Convention for the Protection of Literary and Artistic Works quoted above, and despite the claim of the U.S.A. that, since 1 March 1988, the national law in the U.S.A. complies with the Berne Convention. 17 USC §104(c). I have posted a separate essay on moral rights of authors in the USA, with emphasis on rights of scientists, professors, and students.
Works of the U.S. Government (e.g., statutes, opinions of federal courts) are not protected by copyright inside the U.S.A. 17 USC §105.
The duration of the copyright in the USA for works created after 1 Jan 1978 is life of the author plus an additional 70 years. 17 USC §302(a) (amended 1998, current Nov 2008). For works created before 1978, see the chart created by Prof. Laura Gasaway, Head of the Law Library at the University of North Carolina at Chapel Hill. Peter B. Hirtle, a librarian at Cornell Univ., has a more comprehensive chart.
Plagiarism
Plagiarism is defined as quoting or paraphrasing text from another author without both (1) the indicia of a quotation and (2) a proper bibliographic citation. The indicia of a quotation is either (1) enclosing the text in quotation marks or (2) formatting the text as an indented, single-spaced block. Information about the form(s) of a bibliographic citation is given in academic style manuals (e.g., The Chicago Manual of Style). At a minimum, a proper citation must contain the author's name and enough information about the source of the quotation, so that the reader can easily find the quotation in the original. For quotations from a webpage, the author's name and the URL of the webpage must be given.I have posted separately a long, detailed discussion of the legal aspects plagiarism in colleges in the USA, with emphasis on plagiarism by college students and the sale of term papers. My essay on plagiarization includes quotations from many court cases in the USA.
Note that paraphrasing or other trivial changes in copied text, in an attempt to avoid copyright infringement, are specifically prohibited by law in the USA:
- Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) ("It is of course essential to any protection of literary property ... that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.");
- Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936) ("... no plagiarist can excuse the wrong by showing how much of his work he did not pirate.").
Amendments to the U.S. Copyright statutes in 1998 included a new section making it wrongful to "intentionally remove or alter" any one or more of the following items:
- the notice of copyright,
- the title of the work,
- the author's name and other identifying information about the author,
- the copyright owner's name and other identifying information about the copyright owner, or
- "terms and conditions for the use of the work."
Violation of this section entitles the copyright owner to statutory damages between US$ 2500 and US$ 25 000 for a first offense by the defendant, or payment of actual damages, whichever are greater. For a subsequent offense by a defendant within three years, the damages may be tripled (i.e., statutory damages of at least US$ 7500). In addition, the judge "may award reasonable attorney's fees to the prevailing party". 17 USC §1203.
These new penalties for removing or altering a copyright notice give authors and owners of copyrights a new tool to prosecute plagiarists.
Fair Use
Under the doctrine of fair use, an author may make short quotations for purposes of criticism, comment, news reporting, teaching, or scholarship, without first obtaining permission of the copyright owner of the quoted work. However, every quotation must be clearly identified with the source of the quotation and the name of the author of the quoted text.For many years, fair use in the USA was common law (i.e., law created by judges), but the Copyright Act of 1976 included fair use:
- Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
- 17 USC § 107 (amended 1992).
- Sony v. Universal, 464 U.S. 417 (1984);
- Harper & Row v. Nation, 471 U.S. 539 (1985);
- Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994);
- AGU v. Texaco, 60 F.3d 913 (2dCir. 1994), cert. dismissed, 516 U.S. 1005 (1995).
Originally, fair use only applied to authors who made short quotations when preparing new works. Since the early 1970s, some attorneys have argued that fair use also applies to photocopying and other forms of exact reproduction. I am aware of many judicial opinions that hold that making a verbatim copy of an entire chapter in a book, an entire article in a scholarly journal, or an entire webpage is not fair use under the law of the USA, even if done by a teacher or professor. The topic of fair use is controversial amongst specialists in copyright law, and too complicated to discuss here. The safe advice is to get permission of the copyright owner before making multiple verbatim copies of any copyrighted work.
The legislative history of the Copyright Act of 1976, U.S. House of Representatives Report 94-1476, contains a privately negotiated set of guidelines for photocopying by nonprofit educational institutions. These guidelines do not follow fair use law in judicial opinions, furthermore, these guidelines are not legally binding on a court in the U.S.A. I now believe these guidelines are not only worthless, but also misleading. I posted an HTML version of these guidelines on the Internet as an independent document, to clearly separate these guidelines from my own writing.
Using someone else's text
in your writing
In the context of creating a webpage (but also valid for writing in other contexts), let's discuss several methods to make a webpage and how copyright law views each method. - Find some text or a picture elsewhere and upload it to a website, without any changes. This is blatant copyright infringement, a violation of the copyright owner's exclusive legal rights under 17 U.S.C. § 106 to publicly display the work.
Aside from legal implications of copyright infringement, reposting of material from other web sites can be an inconvenience to other users. The author may revise the original document frequently, but copies posted by other users will not be revised (indeed, the author may not know of the existence of these copies). The easiest way for everyone on the Internet to have the freshest information is to have only the author post the document. Other people can post a hypertext link to the author's document, to refer their readers to the most recent version of the document at the author's site.
- Find some text elsewhere; copy it; make a few changes, deletions or additions; and then upload it to a website. This is copyright infringement, a violation of the copyright owner's exclusive legal rights under 17 U.S.C. § 106 to make (or to authorize) derivative works.
- Find some text elsewhere, copy a small part of it, and include it as a quotation in your work. To avoid plagiarism, be careful to both (a) use the indicia of a quotation (i.e., either quotation marks or indented block of single-spaced text) and (b) include a complete bibliographic citation (e.g., author's name, title of work, URL, etc.) to the source of the work. This is the only acceptable way of using text written by someone else in your webpage or other writing.
Copying illustrations, diagrams, or photographs (e.g., scanning a printed image or copying a GIF or JPEG file) always requires permission of the copyright owner, unless the works are clearly in the public domain (e.g., either a work produced by the U.S. Government or a work that was initially published before 1922 and was registered with the U.S. Copyright Office).
Permission
I have seen many web sites with collections of images that contain a notice similar to the following:- If you find an image that belongs to you and you do not want it displayed here, send me an e-mail and I'll remove it immediately.
And, when you ask for permission, do not say "If you do not reply, I will assume you granted permission." (I have actually received many e-mails with such wording!) The only way for a copyright owner to grant permission is to make a statement — either a general statement in his/her terms-of-service webpage or a specific statement in reply to a request for permission — that copying is acceptable to the copyright owner. The default setting (i.e., no reply from the copyright owner) is that there is no permission to copy.
Photocopy Machines
Photocopy machines have been commonly used in libraries and offices since the mid-1960s. Yet the business and legal community was startled in 1991-1996 by a series of federal cases that held that some common uses of a photocopy machine were copyright infringement:- Basic Books v. Kinko's, 758 F.Supp. 1522 (S.D.N.Y. 1991);
- AGU v. Texaco, 60 F.3d 913 (2dCir. 1994), cert. dismissed, 516 U.S. 1005 (1995);
- Princeton Univ. Press v. Mich. Document Service, 99 F.3d 1381 (6thCir. 1996), cert. den., 520 U.S. 1156 (1997).
The Princeton Univ. Press v. Mich. Document Service case is particularly important for professors. In that case, professors copied chapters of books and articles in scholarly journals, then handed the set of photocopies to Michigan Document Service to reproduce into a custom-made textbook for students. Of course, no royalties were paid to the owners of the copyrighted material that was photocopied and distributed. The courts held that this copying was an infringement of copyright. Aside from legal issues of copyright infringement, a professor should set a good example for his/her students, by respecting copyrights of other authors.
Copying on the Internet
Most of copyright law was formulated in terms of books, audiovisual works (e.g., motion pictures), and sound recordings. While the basic principles of copyright law are the same for all media, it is not yet clear how some of these principles apply to the Internet.The act of viewing a page on the Internet automatically involves making a copy, since the material is transferred to the user's computer and stored there in semiconductor memory (also called RAM, an acronym for "random access memory"). This copy is arguably not infringement, because authors post documents on the Internet with the intent of having other people read the documents, so there may be an implied license to copy web pages during the reading of them. Moreover, the copy in RAM evaporates when the machine is switched off and the copy in RAM is overwritten when the next document is read, so the copy in RAM is not permanent.
Some browsers, such as Netscape, make a second copy of a document on the hard disk drive (e.g., for Netscape running under Windows 3.1, typically as a file in C:\NETSCAPE\CACHE\*.*). The purpose of this second copy is to make access quicker when the user presses the Back button on the browser. Retrieving a copy from the hard disk on the user's machine is much faster than reading the document again from the source machine and again transmitting the document through the Internet. While this second copy is a convenient feature of a browser, the designer and programmer probably gave no thought to the implications of this copy under copyright law. The cache directory on the user's hard disk is set by default in Netscape 3 to five megabytes of the most recently accessed documents. Once this limit is reached, the browser automatically deletes the oldest document to make room for the current document. The copies in cache on the hard disk will survive switching off the user's machine, but the copies will not survive repeated accessing of more documents from the Internet. The copy in cache is arguably acceptable practice under copyright law, provided that this copy is not used for any other purpose.
A third way to make a copy with a browser is to use the Print command to make a paper copy of the document. Such copying may be infringement of a copyright or there may be an implied license from the author for such paper copies. If a court finds that there is an implied license, a court could still find infringement, if the licensee's use exceeded the scope of the implied license.
A fourth way to make a copy with a browser is to use the Save As command from the File menu. This command saves the HTML, JPEG, or other file on the user's hard disk with a filename chosen by the user. Such copying is infringement of a copyright.
Servers operated by local Internet Service Providers obviously transmit a copy of documents requested by their users. A new section of the copyright law, 17 USC § 512(a) (1998), provides immunity from infringement to Internet service providers who automatically transmit or route copies of material in response to requests from users. Another new copyright law provides immunity from infringement to Internet service providers who maintain a temporary copy (called caching) of a frequently requested document on their server, to reduce the amount of long-distance communications and to decrease response time. 17 USC § 512(b) (1998).
Internet service providers (ISPs) and colleges should be aware of amendments to the copyright statutes in 1998 that provide the corporation or college with immunity from infringement by their customers or students, if the ISP or college complies with certain requirements prior to the infringement. Consult a local attorney who is familiar with copyright law for details.
Posting a document on the world wide web is not publication. Publication is defined in the U.S. Copyright statute as
- ... the distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. .... A public performance or display of a work does not of itself constitute publication.
Posting a document on the world wide web is a "public display" of the work, which is among the rights exclusively reserved to the owner of the copyrighted work. 17 USC §106(5).
International problems
Finally, this essay emphasizes the law in the U.S.A. However, copyright law in many other countries differs in details from the law in the U.S.A. Therefore, copying that is legal in the U.S.A. might be a violation of the author's rights in another country, something of concern given the international nature of the Internet. One important example is the law in the U.S.A. does not recognize moral rights of authors, although such rights for all authors are clearly specified in The Berne Convention for the Protection of Literary and Artistic Works, Article 6bis, and despite the claim of the U.S.A. that, since 1 March 1988, the national law in the U.S.A. complies with the Berne Convention. There is already a case, in a different context than the Internet, that illustrates these differences in national laws. John Huston's black and white film Asphalt Jungle was converted to color by the Turner company. Turner then contracted with a French television network to show the color version. Huston's heirs sued in a French court, with a claim that Turner had violated Huston's moral rights. Note that Huston, the company that produced the original black and white movie, and Turner were all American, and both the black and white movie and the colorized version were produced in the USA. Under the usual conflict of law rules, the law of the USA should apply: (1) the studio, not Huston, was the author and (2) there are no moral rights of authors in the USA. Instead, the highest French court, in Huston v. La Cinq Cass. civ. 1re (28 May 1991), applied French law, because they believed moral rights of authors, as part of basic human rights, were of higher importance than contract law. The French court held that the protection of moral rights of authors did not depend on the law of the country of origin of the work. Hence, the television network was enjoined from showing the color version of the movie.Future directions for copyright law
Copyright law in the USA seems to have been written by lobbyists for publishers and motion picture studios, in that legal protection for rights of authors is markedly less than in France or Germany, or even in the Berne Convention.One frequently sees proposals in the USA to end copyright law. Most of these proposals recognize the ease of making copies with a photocopy machine or with a computer (e.g., copying a program or downloading a file from the Internet), then simply assert that the ease of making a copy has somehow made copyright obsolete. In my opinion, this type of argument is like a child who claims that algebra is difficult to learn, therefore he/she should not be expected to learn it. I suspect that many of these proposals are really nothing more than a disguised attempt to further reduce author's rights, by weakening copyright law.
The fundamental purpose of copyright law is to provide an incentive for authors to create expression, by recognizing that expression as a kind of property. The invention of photocopy machines and personal computers in no way changes the desirability of protecting authors' intellectual property.
Registration of a copyright in the USA
Most people register their copyrights without the assistance of an attorney. The U.S. Copyright Office provides forms for registration of documents. However, any questions about the legal terms used on the application form (e.g., Was this a work for hire?), should be referred to an attorney who is both licensed to practice in your state and familiar with copyright law.I registered 98 copyrights during 1997-2007. The process was slow: it took the Copyright Office between five and twelve months to issue the certificate of registration when there were both no questions and no objections from the Copyright office. It took the Copyright Office between 33 and 76 days to deposit the check that was enclosed with the application, something that should be routine and automatic.
In mid-2008, the Copyright Office began online registrations, which — ironically — are more slowly processed by the Office than the old handwritten forms during 1997-2007.
Rights of certain authors to attribution and integrity
(a) Rights of Attribution and Integrity. — Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art —
(1) shall have the right —
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the right —
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
(b) Scope and Exercise of Rights. — Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work.
(c) Exceptions. — (1) The modification of a work of visual art which is the result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).
(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.
(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of “work of visual art” in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).
(d) Duration of Rights. — (1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author.
(2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.
(3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author.
(4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire.
Infringement is defined in 17 U.S.C. § 501. Infringement requires
- a protected work
- that the defendant copied the protected work
- that the defendant's copying of the protected work was an infringement
If a work is not protectable it cannot be infringed upon. For instance, spoken conversations that are unrecorded ("fixed in a tangible medium of expression") are not protectable. Similarly, if two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying. Typically this is referred to as the defense of independent creation; however, technically this is not a defense since without copying there is not an infringement to begin with. Even if a defendant copied protected works that act might be permissible under one of the defenses or limitations. Fair use is one such defense. Quoting from a book in a review might be a copying of protected material, however this copying may well be permissible under 17 U.S.C. § 107
Parodies
Although a parody can be considered a derivative work under United States Copyright Law, and thus within the exclusive rights of the copyright owner, it may qualify for the "fair use" exception to the exclusive rights, which is codified at 17 U.S.C. § 107. Parodic works are not automatically fair use of the material parodied, however. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work; in contrast, a satire (which is not targeted at the work borrowed from) does not require use of the original work to make its point. (See Campbell v. Acuff-Rose Music, Inc.)
Defenses and Limitations
US copyright law includes numerous defenses, exceptions, and limitations. These protect both the boundary with the free expression guarantees of the First Amendment and establish carve-outs to address specific situations.
Some of the most important include:
- Subject matter limitations and the "idea/expression dichotomy". Copyright applies only to certain subject matter, codified within 17 USC 102. Works that are not "original works of authorship fixed in any tangible medium of expression" are not subject to copyright. codifies that copyright protection does not extend to ideas, procedures, processes, systems, etc. Facts may not be copyrighted. This doctrine was explored in some detail in the Feist case discussed above.
- The "fair use" exception is codified at 17 U.S.C. § 107, and states that "the fair use of a copyrighted work ... is not an infringement of copyright." The section lists four factors that must be assessed to determine whether a particular use is fair.
- The first sale doctrine is codified at 17 U.S.C. § 109, and limits the rights of copyright holders to control the distribution and display of copies of their works. The owner of a particular copy is entitled to "sell or otherwise dispose of the possession of that copy" and to "display the copy publicly ... to viewers present at the place where the copy is located."
- The "good faith" defense (Section 504(c)(2)) protects educational institutions, libraries, archives, and public broadcasters, by permitting the court to limit statutory damages to only $200 if they reasonably believed their infringement was a fair use under 17 U.S.C. § 107.
- 17 U.S.C. § 108 and § 110-122 include specific exemptions for types of works and particular entities, such as libraries (§ 108), public broadcasters (§ 110 and § 118), braille (§ 121), software backup copies (§ 117), "cover license" permitting sound recording covers (§ 115), and jukebox compulsory licenses (§ 116).
- Section 512 ("OCILLA", passed as part of the DMCA in 1998) provides a contingent "safe harbor" for online service providers from secondary liability for their users' copy infringements.
Government Infringement
The U.S. government, its agencies and officials, and corporations owned or controlled by it, are subject to suit for copyright infringement. All infringement claims against the U.S. that did not arise in a foreign country must be filed with the United States Court of Federal Claims within three years of the infringing action. Claims filed in the wrong court are dismissed for lack of subject-matter jurisdiction. The government and its agencies are also authorized to settle the infringement claims out of court.
Provisions for the Handicapped
There is specific statutory provision for reproduction of material for the blind or other persons with disabilities. Specific legislation permits the reproduction of copyright works in Braille, audio, electronic, Web-Braille, or other necessary formats. The program is administered by the National Library Service for the Blind and Physically Handicapped (NLS).
Relief available for Infringement
A person whose copyright has been violated (infringed upon) may pursue relief. These remedies, however, require the copyright holder to actively enforce his or her rights. There is no "copyright police" that enforces copyright without the right holder complaining. For example, the FBI investigates cases of criminal infringement (mostly audio and video products), but even then, it does not do so on its own, only on cases where a complaint is received from the copyright holder. The FBI has its own guidelines on which cases to investigate.
Civil Remedies
Barring investigation by law enforcement, therefore, a copyright holder must file a lawsuit in federal court to pursue his or her remedies. These remedies fall into two general categories: Injunctions and damages.
Injunctions: Copyright Act §502 authorizes courts to grant both preliminary and permanent injunctions against copyright infringement and against violations of the author's rights of attribution and integrity in works of visual art. There are also provisions for impounding allegedly infringing copies, phonorecords, and other materials used to infringe, and for their ultimate destruction upon a final judgment of infringement.
Damages and/or profits: Section §504 of the 1976 Act gives the copyright owner/author a choice of recovering: (1) their actual damages and any additional profits of the defendant; or (2) statutory damages.
Equitable relief
Both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright. Where the infringer is the government, however, injunctions are not available and the copyright holder can only seek monetary damages.
One form of equitable relief that is available in copyright cases is a seizure order. At any time during the lawsuit, the court may order the impoundment of any and all copies of the infringing products. The seizure order may include materials used to produce such copies, such as master tapes, film negatives, printing plates, etc. Items that are impounded during the course of the lawsuit can, if the plaintiff wins, be ordered destroyed as part of the final decree.
Monetary Damages
A copyright holder can also seek monetary damages. Injunctions and damages are not mutually exclusive. One can have injunctions and no damages, or damages and no injunctions, or both injunctions and damages. There are two types of damages: actual damages and profits, or statutory damages. During the course of the lawsuit, the copyright holder can ask the court for both, in the alternative. However, at the end of the case, they are mutually exclusive: Only one can be awarded and not the other.
Actual damages are the actual losses suffered by the copyright holder as a result of the infringement. Profits are the profits gained by the wrongdoer as a result of the infringement. In theory, the copyright holder can recover both his or her own actual damages, and also the wrongdoer’s profits.
Statutory damages are available as an alternative to actual damages and profits. This is sometimes preferable if actual damages and profits are either too small, or too difficult to prove, or both. There are, however, situations where statutory damages are not available. 17 U.S.C. § 412 provides:
- Statutory damages are not available if the work is unpublished and the infringement began before the effective date of its registration.
- Statutory damages are not available if the work is published but the infringement commenced after the first publication and before the effective date of its registration, unless registration is made within three months after the first publication.
Statutory damages are calculated per work infringed. Statutory damages range from a few hundred dollars to hundreds of thousands:
- Statutory damages range from $750 per work to $150,000 per work
- In case of “innocent infringement”, the range is $200 to $150,000 per work. "Innocent" is a technical term. In particular, if the work carries a copyright notice, the infringer cannot claim innocence.
- In case of “willful infringement” (again, “willful” is a technical term), the range is $750 to $300,000 per work.
Damages in copyright cases can be very high. In Lowry’s Reports, Inc. v. Legg Mason Inc., a 2003 lawsuit between a publisher of stock analysis newsletters against a company that buys one copy of the newsletters and makes multiple copies for use in-house, the jury awarded damages - actual damages for some newsletters and statutory damages for other newsletters - totaling $20 million.
Attorney's Fees
Cost and attorney fees: Copyright Act §505 permits courts, in their discretion, to award costs against either party and to award reasonable attorney fees to the prevailing party.
The court may (but is not required to) award to the "prevailing party" a reasonable attorney’s fees. This applies to both the winning plaintiff (right holder) and the winning defendant (accused infringer). However, attorney’s fees award is not available against the government. Like statutory damages, attorney’s fees are not available if the work infringed is not registered at the time of infringement.
Criminal Penalties
In addition to the civil remedies, the Copyright Act provides for criminal prosecution in some cases of willful copyright infringement. There are also criminal sanctions for fraudulent copyright notice, fraudulent removal of copyright notice, and false representations in applications for copyright registration. The Digital Millennium Copyright Act imposes criminal sanctions for certain acts of circumvention and interference with copyright management information. There are not criminal sanctions for violating the rights of attribution and integrity held by the author of a work of visual art.
Criminal penalties for copyright infringement include:
- A fine of not more than $500,000 or imprisonment for not more than five years, or both, for the first offense.
- A fine of not more than $1 million and imprisonment for not more than 10 years, or both, for repeated offenses.
Nonprofit libraries, archives, education institutions and public broadcasting entities are exempt from criminal prosecution.
(e) Transfer and Waiver. — (1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors.
(2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work.
