MM 350: Intellectual Property Law and New Media Introduction to Copyright Fall 2013 Day 4 © Ed Lamoureux/Steve Baron

Notes on the reading, esp. the opening examples T here are forces in the content industries who do NOT concur with the idea that you can move even non-protected material, like the music on a CD, onto another platform, like an iPod, without violating copyright. There are differences of opinion as to the legality (or not) of these examples. We changed all to “probably” legal or not legal just prior to publication based on reviewers who suggested that our analysis did not give enough weight to fair use defenses. There are learned people who produce MUCH MORE EXTREME examples (as plausible hypotheticals). For example, Tehranian, in Infringement Nation writes about the copyrights inherent in and singing in the shower. Infringement Nation

Introduction to Copyright Basics In order to be copyrighted –The work must be “original” “originality” can be very complex. In general for the purpose of legal proceedings, originality means that the work has not been previously copyright protected. –In earlier historic stages, originality might have had more direct reference to “first to think of it and put it down.” –The work must “fixed” In fact, it is the expression of the idea that is copyrighted, not the idea itself, so the work has to “come out.” However, “publication” is not limited to “professional distribution.” –The “new” nature of electronic/digital means of production and distribution makes this really problematic as “everyone” is now a potential producer and distributor.

Equivocation over web posting and publication Lack of clarity Lack of case law Much of what we have is based on whether making media files available “counts” as distribution (so violates the distribution right) –Nimmer Changes His Tune: “Making Available” is DistributionNimmer Changes His Tune: “Making Available” is Distribution In general, one can say that fixing in form (even on the internet) does establish the basic right; However, there is SO much equivocation online (terms of use/service, the status as “publication”) that REGISTRATION IS CRUCIAL FOR RIGHTS PROTECTION!

–For proper protection, the work/copyright should be registered Well, not exactly. SOME rights are conferred to the copyright holder immediately on “fixing the creation.” Once “fixed,” you can claim that it’s yours, protected, and that others should not infringe. More protection comes from posting the notice. One might be able to get a judge to order an infringer to stop infringing. Timely registration of the work (asap after creation and before any infringement) with the copyright office extends the scope of the rights. –Posting warns others of the protection & grants the right to sue for infringement. –With registration, statutory damages & attorney’s fees may also be recovered. –Without timely registration, the protection is very weak as legal procedures cost $ and the ability to recover damages and fees are the only real “leverage” against infringers.

Who owns/controls the copyright? The author Multiple authors might share a copyright covering “the whole” of a collaborative work; or multiple authors might maintain control over the part of the collaborative work they did. –If you want to clearly establish collaborative rights, draw specific contracts. Authors may assign their rights to others, contractually. –Most of the copyright protected content in America is owned/controlled by large, sophisticated, corporate media interests.

Others (generally, employers) may own the rights, by virtue of the nature of the employer/employee relationship. At issue are: –Status/type of employment: in some cases, ones “usual” work output is assigned to the employer; rarely, in others, it’s yours. –Work for hire? In some cases, extra money is paid for specific work products. Work for hire confers copyrights to the employer in the absence of specific contractual agreements otherwise.

A wide range of rights are protected 1.Reproduction Right: to copy, duplicate, transcribe, or imitate the work in fixed form. 2.Modification Right. Also known as the derivative works right, this is the right to modify the work to create a new work that is based on a preexisting (derivative work). HOTLY contested area (transformative nature of fair uses and fan creativity problematize derivatives).

3.Distribution Right: to distribute copies of the work to the public by sale, rental, lease, or lending. 4.Public Performance Right: to recite, play, dance, act, or show the work at public place or to transmit it to the public. There are lots of arguments over the nature of digital (re)distribution as public performance (or not) 5.Public Display Right: to show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public. There are lots of arguments over the nature of digital (re)distribution as public performance (or not)

Exceptions Ideas: cannot be copyrighted Federal materials cannot be copyrighted –Though sometimes the subcontractors they hire retain rights over some of their work. –This one’s becoming a major issue as the feds outsource more and more of their content for digital display and distribution. Facts cannot be copyrighted (although sometimes the unique ways in which they are arrayed can be) –For example, the names, addresses, and numbers displayed in a phone directory can’t be copyright-protected but the design/layout of a particular way of arraying them sometimes can be Independent creation. Same-time independent creation cannot be controlled. Time-ordered independent creation, if proven to be truly independent, cannot be controlled. But, in U.S. system, timely registration is key and often will trump independent creation.

First Sale Doctrine: once I buy it, I can rent it, display it, resell it. Although there are legal limits in certain situations, the principle is that the author no longer controls it. First sale is largely overturned by digital content and by the DMCA Technological copying in certain broadcast/transmission situations. Fair Use (MUCH more on this later) Parody (usually as part of a fair use defense) More Exceptions

Duration Under current US law (the copyright law and the copyright extension act), the copyright term for works created by individuals is the life of the author plus 70 years. The copyright term for “works made for hire” is 95 years from the date of first “publication” (distribution of copies to the general public) or 120 years from the date of creation, whichever expires first.

Infringement and Punishment After an author gains the copyright, someone copies, performs, publishes, displays or creates a derivative work without permission. Only courts can issue Cease and Desist orders (injunctions) with legal constraints. –The DMCA sets up procedures whereby copyright holders can request that a court issue a C&D to protect against damage WHILE the matter is in litigation. –However, copyright holders with claims can, and often do, issue C&D threats PLUS –Potential violators often think themselves “better off” if they cease and desist while litigation pends, so self-censor to avoid more potential trouble. –When notified even by a “non-binding” (lawyer generated) C&D, the accused can no longer claim ignorance, so “willful infringement” becomes the status quo (if guilty) In addition to C&D orders, Courts can levy fines, recover damages, impound illegal copies, imprison violators.

DMCA take downs There is an additional procedure, that is external to courts, mediating infringements posted on the WWW. The DMCA lays out specific paperwork/procedures for folks claiming that posted material infringes. If the paperwork is properly filed, the site operator has to take the material down (for at least 10 days) while the matter is adjudicated. Loads of issues here –Take down claims/requests have to be for specific items. “Big content” would prefer to be able to say “take down all our stuff” –Often, frivolous take down notices get filed just to get the material taken down for a period of time –ISPs can host loads of infringing material but as long as they follow the procedures, they are protected (YouTube). –If one accepts 3 rd party content, one has to designate and train a DMCA agent and follow the take down protocols.

Compulsory Licensing Music is different; it is an example of how licensing can work as an alternative to permission-based system. –Once you record/perform it, others may also record or perform it, based on licenses/royalties (in some situations). “public” performances require clearance and royalties. But, generally, the royalties are paid by the venue so cover artists often play without permission or payments. Generally personally private (in the shower, car, at home or in a private office) performances don’t require clearance or payment. –Great care must be taken here as licenses must be obtained for EACH of the rights, depending on use. In some cases, one might need to obtain 4 licenses, perhaps from different rights holders. Some folks see licensing as one of the ways to fix the broken copyright system. Others think that licensing closes off legitimate fair use.

There are multiple sets of rights and licenses/fee structures within the compulsory system for music –Although the rights holder has a compulsory obligation to allow the use, there is a compensation system in place via license and royalty agreements. Without the right license/royalty, the use can be an infringement. Public Performing Right: The exclusive right of the copyright owner to authorize the performance or transmission of the work in public. In certain situations, performers need to acquire a public Performance License granting the right to perform the work in, or transmit the work to, the public. Reproduction Right: The exclusive right of the copyright owner to authorize the reproduction of a musical work as in a record, cassette or CD. Mechanical License: Harry Fox Agency, Inc. issues licenses on behalf of the copyright owner or his agent, usually to a record company, granting the record company the right to reproduce and distribute a specific composition at an agreed upon fee per unit manufactured and sold. Synchronization License: Music Publishers issue licenses as copyright owner or his agent, usually to a producer, granting the right to synchronize the musical composition in timed relation with audio-visual images on film or videotape. There is NO blanket sync license agency/agent/process. Digital Performance Right in Sound Recordings Act of 1995: authorized a compensatory system for digital sound recordings.

Let’s be real careful with this part: There is NO blanket sync license agency/agent/process. You may work at a place that has one or the other sort of “blanket” license. For example, BU pays so that the band can play, teachers can play certain stuff in class, the clarion can toll, etc. But the license that allows all that does NOT allow putting a song to a video and posting it to the web or putting a song into a movie or tv show, even if the song was covered under the blanket license. Snyc licenses are sold in one way: from the publisher, per use. (with one exception)

The one major exception to sync. License arrangements One can acquire “media libraries.” They are like clip art for sound and images. We have some in the college (accessible via the lab web page). The library has some. Broadcast stations (TV and radio) purchase materials for use as their production library. The terms of service for these purchases specify the uses to which materials can be put. Very often, their sync. rights are cleared as part of the purchase price. People who work at commercial outlets often get used to just going into the library and grabbing anything they find. In some professional places, the $ paid (often that you don’t know about) makes this ok. Don’t use material until you are sure what you have and what rights you’ve acquired. (Eyes on the Prize example)

Some legislative trends in the development of IP laws

First, who are the potential players in the development of IP legislation? Print publishers; news organizations; film/recording/radio/television industries; content licensing organizations; educators; libraries, museums, conservatories; performance venues of all types; trade/industry groups: restaurants, taverns/bars, hotel/motel/resort; mall associations; channel/network providers: phone, cable, satellite, wireless; IP legal groups; equipment manufacturers and importers; government agencies: FCC/FTC/ICC/Justice/FBI/CIA; artists unions across all categories; non-profits; computer companies.

The general pattern Technology changes, bringing about the need for new law. Legislative action begins and either fails or stalls. An advisory committee is formed. The group is made up of representatives from the current players (and their lawyers).

The general pattern, pt. 2 Neither new technologies nor the public are represented on the committee. The recommendations strengthen the positions of in-place technologies and players After passage, subsequent refinements are handled via side agreements and set-asides. If a legislator comes up with a proposal that doesn’t follow this pattern or that compromises in-place statutes, private/industry stakeholders unite to block the legislation.

Basic problems with the pattern Almost inevitably, this procedure is enacted looking backwards... It accounts for old media at the expense of new. New media get a very hostile reception at the hands of the old guys. Neither new technologies nor the public are represented on the committee. No affected party is going to support legislation that leaves it worse off than it is under the status quo. Those who get to the table are there to protect (and increase the value of) their own interests, not to make great new laws. The resultant bills come from a lot of “horse-trading” among the players at the table.

Problems, pt. 2 Subsequent “issues” are resolved by making specific set-asides rather than by actually re-writing the laws. The law gets more complicated, inconsistent and ad hoc. In-place laws (and those who break them) are lorded over (oft-times using technology as a tool) by those advantaged by the law... Their remedy for new situations/violations is to sue rather than to enact remedial legislation. It takes years to bang out these bills. By the time they are done, they are out of date and excessively complex. The work is done, mostly, by IP lawyers (representing “old” media). After all, no one else can understand the complexities. But IP lawyers don’t make any effort to simplify the laws; after all, they make their living based on the need to hire them in order to understand legal complexities. Really, no one represents “the people” in this process. Some groups (like library associations) have interests closer to citizens than corporations. But in general, users have always been left out. That might have been ok when all the business was between corporations. It’s no longer ok, now that the laws have to apply to every-person.

An example: DMCA Legislation started in 1993 as the Clinton/Gore acknowledgement of the information highway –Its initial report (The Green Paper) threatened to make every copy a copy... So ALL computing would be copying (due to RAM copies). –Transmissions got conflated with performances. –Recommended the need for increased copyright protection. –Most of the report virtually ignored the internet and its implications.

The White Paper The green paper was then modified via a more formal document, after public hearing and comment. White Paper released, Sept –Extended the “RAM copy” position: using computers requires a license each time one views things (extends protection of the content layer). –Both individuals and ISPs/providers would be held liable (includes the physical layer). –Added “anti-circumvention” language. (includes the code layer).

Other “groups” form in response: some alphabet soup Digital future coalition (DFC) (law profs and librarians who didn’t like the white paper) Home recording rights coalition (HRRC)--been around since the beta-max controversy. The terms of the White Paper are tied to World Intellectual Property Organization (WIPO) meeting and agreements. Telephone companies, ISPs, libraries, schools wanted “safe haven” that wasn’t in the proposal. The DMCA was drafted from the whole mess. Both House and Senate had multiple versions/bills.

DMCA signed Oct. 28, 1998, same year as CTEA Copyright law later modified by –Regular review, comment, & updates of the DMCA as mandated by the law. –1999 Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 (upped the statutory damages for various types of piracy) –2002 Teach Act (we’ll discuss this; mandates and agreements regarding digital media in distance education) –2004 Family Entertainment and Copyright act (clarifies & strengthens penalties, esp. for in-theatre piracy; allows for edited copies by/for owning consumers. –Copyright Royalty and Distribution Reform Act of 2004 replaced copyright arbitration panels with copyright royalty judges. –Intellectual Property Protection and Courts Amendments Act of 2004 seeks to prevent and punish trafficking in counterfeit copyright-protected material. The act significantly raises the levels of penalties and damages

DMCA redux: ACTA Anti-Counterfeiting Trade Agreement European Parliament passes anti-ACTA declaration –An interesting feature of this: to date, our legislators have taken NO action –Don’t be fooled by the recent action that stopped SOPA and PIPA. Neither legislators nor the people took effective action there. Large new media companies did. They probably won’t have similar motivations over ACTA and laws that “protect their interests”

If we have time, more