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What copyright is may be summed up as: 3. 1 [... ] a type of property right which is founded on a person's creative skill and labour. It is designed to prevent the unauthorised use by others of a work, that is, the original form in which an idea or information has been expressed by the creator. 3. 2 Copyright is not a tangible thing. It is made up of a bundle of exclusive economic rights to do certain acts with an original work or other copyright subject-matter. FN 9 FN 9 Copyright Law in Australia - A Short Guide, October 1997, Attorney-General's Department. See: web The Copyright Act FN 26 grants the copyright owner of an original literary work the exclusive right to: reproduce the work in a material form (the "reproduction right"); publish the work (the "publication right"); perform the work in public (the "performance right"); broadcast the work (the "broadcast right"); cause the work to be transmitted to subscribers to a diffusion service (the "diffusion right"); make an adaptation of the work (the "adaptation right"); in relation to a work that is an adaptation of the work, any of the acts specified in (a) to (f); and enter into a commercial rental arrangement in respect of the work reproduced in a sound recording or, in the case of a computer program, enter into a commercial rental arrangement in respect of the program (the "rental right"). FN 26 Sec 31 (1) (a), 31 (1) (c) and (d).
Copyright in a literary or artistic work is infringed when a person who is not the copyright owner and who is not licensed by the copyright owner, does, or authorises the doing of, any of the acts comprised in the copyright. FN 30 FN 30 Copyright Act 1968, sec 36 (1). Copyright is regulated by Congress in the U. S. Copyright Act [ 22 ] under an exclusive grant of power set forth in the Constitution of the United States [t]o promote the Progress of Science and useful Arts. [ 23 ] The overall purpose of copyright protection is to assure authors the right in their original expression, and to encourage others to build freely upon the ideas and information conveyed by a work. [ 24 ] Over time copyright protection has become an expansive area of the law which includes protection not only for literary works, but also artistic works, sound recordings and computer software. [ 25 ] [ 22 ] 17 U. S.
C. 101 - 1101 web [ 23 ] See U. S. Const. , art. I, 8 web cl. 8: To promote the Progress of Science and useful Arts, by Securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. [ 24 ] Feist Publications, Inc.
v. Rural Telephone Service Company, Inc. , 499 U. S. 340, 349 - 50 (1991) web [ 25 ] See 17 U. S. C. 106 web The following categories are specified in section 102 as works of authorship: (1) literary works; (2) musical works, including any accompany words; (3) dramatic works, including any accompany 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. 17 U. S.
C. 102 (a) web Under the 1976 revision of the Copyright Act, a work does not have to be published nor registered with the Library of Congress to be protected by the law. [ 32 ] Once a work is copyrighted, the author has the exclusive right to reproduce, distribute, perform, display or licence their work [ 33 ] for the length of the authors life plus fifty years. [ 34 ] The exclusive rights of a copyright holder balanced against the works time limit exhibits the true spirit of the Copyright Act -- to strike a equilibrium between an authors creative monopoly and potential lack of innovation. [ 35 ] Once the time limit has expired or if the information is produced by a state or federal Government agency, it becomes a part of the public domain and is free of any copyright restraints. [ 36 ] 32 ] White Paper, supra note 1, at 28 - 32. For more information on how to register an online work, see Katherine C. Spelman & James F. Brelsford, Copyright Issues in Multimedia: Hollywood Meets the Internet, 467 PLI/Pat 189, 200 - 03 (January 1997). [ 33 ] 17 U. S. C. 106 web [ 34 ] 17 U.
S. C. 302 (a) web [ 35 ] See Sony Corp. v. Universal City Studios, Inc. , 464 U.
S. 417, 429 (1984) web [ 36 ] Edward A. Cavazos & Gavin Morin, Cyberspace and the Law, Your Rights and Duties in the On-Line World 64 (1994). Copyright Infringement occurs when someone other than the copyright holder attempts to exercise one or more of the exclusive rights of the copyright owner. [ 41 ] Even if the material is without a copyright notice, [ 42 ] an unauthorized use of the copyrighted material can lead to criminal [ 43 ] or civil [ 44 ] liability under the Copyright Act. [ 45 ] In addition, the plaintiff in a civil case does not have to prove intent to infringe by the defendant, only that the act occurred. [ 46 ] The only affirmative defense to infringement is fair use, and in the Internet context, it has not been proven to be successful. [ 47 ] [ 41 ] Cavazos, supra note 36, at 53. [ 42 ] Id. at 51.
Infringement without notice will allow a party to claim innocent infringement as a defense, but this is not a complete defense because it will only mitigate damages. Id. [ 43 ] Criminal Infringement is defined in 17 U. S. C. 506 web as Any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 2319 of title 18.
This section of the Copyright Act is in the process of amendment due to the inability to convict a student for flagrant copyright violations by copying and distributing software over the Internet because he was not making a financial gain nor a commercial advantage. United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994).
The amendment was proposed to the 104 th Congress by Senators Leahy and Feingold in S. 1122 which will make it a criminal offense to willfully infringe a copyright by reproducing or distributing copies with a retail value of $ 5, 000 or more. White Paper, supra note 1, at 229. See supra discussion Part III-A. [ 44 ] Civil remedies are provided in section 504 of the Copyright Act which allow for a copyright owner to sue for actual damages and profits, or statutory damages. 17 U. S.
C. 504 web In addition, if the infringement was committed wilfully, the copyright owner can recover up to $ 100, 000 above and beyond the other damages recovered. 17 U. S. C. 504 (c) (2) web [ 45 ] See 17 U. S. C. 501 web [ 47 ] See Sega Enterprises Ltd. v.
Maphia, 948 F. Supp. 923, 933 - 36 (holding that the BBS operator who facilitated users uploading and downloading Sega video games did not have a fair use defense because the use was commercial in nature and may be potentially harmful to Sega's market); Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552, 1557 - 59 (holding that the BBS operator who provided the service for copyright infringement did not have a valid fair use defense because the use was commercial in nature, the works were categorized as entertainment, there was a substantial amount copied, and the effect on Playboys market could be adverse to their profits). But cf.
Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 Cardozo Arts & Ent. L. J. 346 (1995) (criticizing both courts analysis on the issue of fair use and liability). RIAA Sues Music Startup Napster for $ 20 Billion- web -the RIAA who feel the product facilitates the growth of a black market for illegal copies of digital music. "Napster is about facilitating piracy, and trying to build a business on the backs of artists and copyright owners. " Cary Sherman, senior executive vice president and general counsel of the RIAA (Recording Industry Association of America). MP 3 trading has become a huge grass roots effort, comprised mostly of teenagers (many too young to vote) swapping files from their own personal websites. If MP 3 companies see the RIAA as a schoolyard bully trying to claim the digital music arena as its turf, it's a big school with lots and lots of kids who have their own ideas.
web Judge blocks site from distributing DVD decryption software By ANN HARRISON AND TODD WEISS (August 18, 2000) web STO 48742, 00. html Eight movie companies have won the first round in a court fight against the publisher of a hacking magazine that offered a free program that has the potential to decode and copy DVD movies. In a 93 -page decision released yesterday, U. S. District Judge Lewis Kaplan in New York ruled that 2600: The Hacker Quarterly, web is banned from posting or linking to the DeCSS software program that decrypts DVD player software and allows the unauthorized copying of DVD movies. providing technology that may be used to bypass technological means of controlling access to copyrighted works.
Jack Valenti, president of the Motion Picture Association of America, which supported the lawsuit, long contended that DeCSS was simply a tool for piracy. "Today's landmark Corporate Software Piracy Tops $ 12 Billion (May 29, 2000) web STO 45172, 00. html Lost revenue suffered by software vendors as a result of piracy by corporate users reached $ 12. 2 billion last year and has amounted to more than $ 59 billion over the past five years, according to a study released last week by two software industry trade associations. Bibliography: 45 ] See 17 U. S. C. 501. [ 46 ] Id. [ 47 ] See Sega Enterprises Ltd. v.
Maphia, 948 F. Supp. 923, 933 - 36 (holding that the BBS operator who facilitated users uploading and downloading Sega video games did not have a fair use defense because the use was commercial in nature and may be potentially harmful to Sega's market); Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552, 1557 - 59 (holding that the BBS operator who provided the service for copyright infringement did not have a valid fair use defense because the use was commercial in nature, the works were categorized as entertainment, there was a substantial amount copied, and the effect on Playboys market could be adverse to their profits). But cf.
Niva Elkin-Koren, Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators, 13 Cardozo Arts & Ent. L. J. 346 (1995) (criticizing both courts analysis on the issue of fair use and liability). By Rich Media- 12 / 09 / 99 RIAA Sues Music Startup Napster for $ 20 Billion- web -the RIAA who feel the product facilitates the growth of a black market for illegal copies of digital music. "Napster is about facilitating piracy, and trying to build a business on the backs of artists and copyright owners. " Cary Sherman, senior executive vice president and general counsel of the RIAA (Recording Industry Association of America). MP 3 trading has become a huge grass roots effort, comprised mostly of teenagers (many too young to vote) swapping files from their own personal websites.
If MP 3 companies see the RIAA as a schoolyard bully trying to claim the digital music arena as its turf, it's a big school with lots and lots of kids who have their own ideas.
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