1. LEE BURGUNDER LEGAL ASPECTS of MANAGING TECHNOLOGY Third Ed. LEGAL ASPECTS of MANAGING TECHNOLOGY Third Ed.

2. Fundamental Aspects of Copyright Protection Chapter 8

3. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 3 Copyright Principles Copyright only protects the expression of ideas, but not the ideas themselves. Copyright only protects the expression of ideas, but not the ideas themselves. Copyright protection only lasts for a limited period of time. Copyright protection only lasts for a limited period of time. When the copyright expires, the work enters the public domain. When the copyright expires, the work enters the public domain. A person who lawfully obtains a copy of a copyrighted work may freely sell or otherwise transfer that copy. A person who lawfully obtains a copy of a copyrighted work may freely sell or otherwise transfer that copy. Fair use is permissible for limited purposes. Fair use is permissible for limited purposes.

4. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 4 Original Works of Authorship. Original Works of Authorship. –Expressions: Not ideas, processes, systems or methods of operation. –Not copied from another. –Nominal creativity. Relevance to databases. Relevance to databases. What May be Protected by Copyright

5. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 5 Feist v. Rural Telephone Facts: RTS is the sole provider of telephone services and provides free telephone book. Feist is a competitor. Facts: RTS is the sole provider of telephone services and provides free telephone book. Feist is a competitor. Issue: What aspects of databases, if any, are protected by copyrights? Issue: What aspects of databases, if any, are protected by copyrights?

6. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 6 Decision: For Feist. Copyright rewards originality, not effort. The individual data in a data base are not protected by copyrights because they are not original; however, the selection and arrangement of data may be. Decision: For Feist. Copyright rewards originality, not effort. The individual data in a data base are not protected by copyrights because they are not original; however, the selection and arrangement of data may be. Rationale: Rationale: –Facts are not protected even when substantial “sweat of the brow” is needed to collect them. –The selection and arrangement of facts may be original when they involve some minimal creativity by the author. –A standard phone book involves no creativity. Feist v. Rural Telephone

7. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 7 Protection of Databases Feist limits the amount of protection for databases to selection and arrangement. Feist limits the amount of protection for databases to selection and arrangement. 1996 EU directive very similar to Feist. 1996 EU directive very similar to Feist. 1996 WIPO adopted two treaties that protection compilations of data, but not the data itself. 1996 WIPO adopted two treaties that protection compilations of data, but not the data itself.

8. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 8 Copyright Protection for Website Information Articles written by employees are copyrighted. Articles written by employees are copyrighted. Links to other sites may only be “compilations”. Links to other sites may only be “compilations”. Expressions are copyright, but not ideas. Expressions are copyright, but not ideas.

9. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 9 Copyright Protection of Product Designs Consumers respond to not only price but how a product looks (shape, appearance). Consumers respond to not only price but how a product looks (shape, appearance). Is a product’s design copyrightable? Is a product’s design copyrightable? –See Brandir Int’l v. Cascade Pacific Lumber Co. Decision: Possibly.

10. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 10 Rights Provided By Copyright The Basic Exclusive Rights The Basic Exclusive Rights –To reproduce. –Prepare derivative works, compilations. –Distribute copies. –Perform and display publicly. –Digitally transmit sound recordings. Controversy: The Tasini case. Controversy: The Tasini case.

11. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 11 Digital Transmission Right for Sound Recordings 1995 Digital Performance Right in Sound Recordings (1995), amendment to the Copyright Act to include “sound recordings.” 1995 Digital Performance Right in Sound Recordings (1995), amendment to the Copyright Act to include “sound recordings.” Compulsory licensing. Compulsory licensing. Copyright owners previously did not have right to prohibit performances of song. Copyright owners previously did not have right to prohibit performances of song. Webcasting: Digital Millennium Copyright Act/Small Webcaster Amendments Act of 2002. Webcasting: Digital Millennium Copyright Act/Small Webcaster Amendments Act of 2002.

12. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 12 Section 107 of the Copyright Act. Notwithstanding the owner’s rights under copyrights, the FAIR USE of copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not an infringement. Section 107 of the Copyright Act. Notwithstanding the owner’s rights under copyrights, the FAIR USE of copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not an infringement. Fair Use and Other Exceptions

13. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 13 Facts: MP3 allowed CD owners to listen to their CD’s via the my.mp3.com website. Copyright owners sued. Facts: MP3 allowed CD owners to listen to their CD’s via the my.mp3.com website. Copyright owners sued. Issues: Is MP3.com liable for copyright infringement? Issues: Is MP3.com liable for copyright infringement? Decision: YES. Fair use is not a valid defense. Decision: YES. Fair use is not a valid defense. UMG Recordings v. MP3.com

14. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 14 Kelly v. Arriba Soft Corp. Facts: Arriba is a search engine that archives images from other websites on its own website to make “thumbnails” which are framed. Facts: Arriba is a search engine that archives images from other websites on its own website to make “thumbnails” which are framed. Issue: Is Arriba liable for copyright infringement? Issue: Is Arriba liable for copyright infringement? Decision: YES. Case remanded for calculation of damages. Decision: YES. Case remanded for calculation of damages.

15. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 15 Copyright Ownership Author of a Work. Author of a Work. Works Made for Hire. Works Made for Hire. –Employees v. Independent Contractors –CCNV v. Reid  Joint Works. Joint Works.

16. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 16 CCNV v. Reid Facts: CCNV “hired” Reid to design a statue. Reid created the statue but refused to return it. Facts: CCNV “hired” Reid to design a statue. Reid created the statue but refused to return it. Issues: Issues: –Was the sculpture a work made for hire? –Is Reid an employee or an independent contractor?

17. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 17 Decision: For Reid. Reid was an independent contractor and so the sculpture was not a work made for hire Decision: For Reid. Reid was an independent contractor and so the sculpture was not a work made for hire Rationale: Rationale: –The distinction of employees from independent contractors is made by reference to general agency principles. –Based on an evaluation of relevant factors, Reid was an independent contractor. CCNV v. Reid

18. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 18 Relevant Factors to Distinguish Employees From Independent Contractors Right to control how product is accomplished Right to control how product is accomplished Skill of hired party Skill of hired party Source of tools and instrumentation Source of tools and instrumentation Location of work Location of work Duration of relationship Duration of relationship Right to assign other projects Right to assign other projects Discretion of hired party over working hours Discretion of hired party over working hours Payment method Payment method Regular business of hirer Regular business of hirer Employee benefits paid Employee benefits paid Tax treatment Tax treatment

19. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 19 How to Obtain Copyright Protection No action required-automatic. No action required-automatic. Reasons for registration. Reasons for registration. –Inexpensive. –Prima facie evidence. –Statutory damages. –Attorneys’ fees and costs. –If U.S. citizen, to bring suit.

20. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 20 Copyright Notice and Duration Reasons for including copyright notice. Reasons for including copyright notice. –Defeats claim of innocent infringement. Deposit requirements and protection of trade secrets. Deposit requirements and protection of trade secrets. Duration. Duration.

21. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 21 Proof that copyrighted work was copied: Proof that copyrighted work was copied: –Substantial similarity of entire works –Access to copyrighted work Proof that copyrighted work was illicitly copied: Proof that copyrighted work was illicitly copied: –Factor ideas out of analysis –Factor out elements that are not “original” –Substantial similarity of original expression –No defenses, such as fair use –Total concept and feel Infringement and Remedies

22. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 22 Remedies for Infringement Injunctions Injunctions Damages and profits Damages and profits Statutory damages Statutory damages Attorneys’ fees and costs Attorneys’ fees and costs Criminal proceedings Criminal proceedings –No Electronic Theft Act

23. © 2004 West Legal Studies in Business A Division of Thomson Learning LEGAL ASPECTS OF MANAGING TECHNOLGY LEE BURGUNDER Third Ed. 23 Rights Provided by Copyright Continued: Moral rights Moral rights –some works of visual art –attribution and integrity Rights subject to fair use defense Rights subject to fair use defense –Equitable defense for violating rights –Application to VCRs –Relevance to digital audio recording formats –Importance to many evolving technology issues