MM 450: Issues in New Media Theory Intellectual Property in the Digital Age Ed Lamoureux, Ph. D. Day 4

Notes on reading, opening examples There are forces on 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.

Introduction to Copyright Basics In order to be copyrighted –The work must be “original” Opps. See McLeod, Chapter 2, originality can be very complex. –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 work/copyright should be registered Well, not exactly. SOME rights are conferred to the copyright holder immediately on “fixing the creation.” A bit more come from posting the notice. More yet from registration of the copyright extends the scope of the rights to a larger specific set of principles. –Posting warns others of the protection & grants the right to sue for infringement. –With registration, statutory damages & attorney’s fees may also be recovered.

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. Authors may assign their rights to others, contractually.

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; in others, it’s yours. –Work for hire? In some cases, extra money is paid for specific work products. W.f.h. almost always confers copyrights.

What 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 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. 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.

Exceptions? Ideas: cannot be copyrighted Federal materials cannot be copyrighted –Though sometimes the subcontractors they hire retain rights over some of their work. Facts cannot be copyrighted (although sometimes the unique ways in which they are arrayed can be) Independent creation. Same-time independent creation cannot be controlled. Time-ordered independent creation, if proven to be truly independent, cannot be controlled.

First Sale Doctrine: once I buy it, I can rent it, display it, resell it. However there are some legal limits in certain situations. The principle, though, is that the author no longer controls it. (First sale is largely overturned in digital by DMCA) Technological copying in certain broadcast/transmission situations. Parody Fair Use (later... Chapter 2)

Duration Under current law, 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 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.

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). Real “public” (say, busking) performances don’t require any clearance Some folks see licensing as one of the ways to fix the broken copyright system.

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.

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 –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