Copyright in the Digital Age Jennie Ness, Attorney-Advisor Office of Policy and External Affairs,...

Copyright in the Digital Age

Jennie Ness, Attorney-AdvisorOffice of Policy and External Affairs, USPTO

Jennie.Ness@uspto.gov - (571) 272-9300

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Outline

The origins of CopyrightSubjects of protectionObtaining and maintaining protection

Protected rightsEnforcing CopyrightCopyright in the “digital age”

Are you an author?

Where it all Started . . .

If not authors, then who?Publishers?Employers?Owners of copies?

United States Constitution

“The Congress shall have Power…To promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their Respective Writings and Discoveries.

Article 1, Section 8, Clause 8

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Pop Quiz!I can make a copy of a work without asking the copyright owner’s permission if –

1. The work is out of print or otherwise unavailable.

2. I paid the contractor to make it (and, in fact, I paid quite a lot).

3. I made at least 7 changes to the work (or I changed 20% of it).

Fact or Fiction?

Two Requirements for Protection

Copyright protection subsists in original work 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.

Originality?

Fixation?

What types of works are protected?

Every production in the literary, scientific and artistic domains; whatever may be the mode of form of

expression.

Copyright protects creative expression, not “ideas.”

Protected Works Not protected

Literary WorksSoftwareMotion PicturesMusical WorksSound RecordingsChoreographic WorksVisual Art, including

Applied ArtDramatic WorksArchitectural Works

Facts or informationProcesses, methods,

formulae, concepts, principles

Lists of ingredients or contents

Names or titlesFamiliar symbols or

designs

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Derivative works

Without prejudice to the rights of the author of the underlying work

Must obtain permission of copyright owner in underlying work, where applicable.

An adaptation, translation, arrangement

14Works from Preexisting Works

Compilations

Again, without prejudice to the rights of the author of the underlying works

Again, must obtain permission of copyright owner in underlying works, where applicable.

“which by reason of selection or arrangement of their contents constitute intellectual creations”

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Who receives protection?

Three categories of authors:IndividualJointWorks Made for HireSpecial note: U.S. government works

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Ownership of Copyright

Copyright initially belongs to the individual authors

Joint authors are co-owners of, i.e., they have an undivided interest in, the copyright in joint works

Under the work-made-for-hire doctrine, the employer is the owner of the copyright for works created within the scope of employment

Special rules apply to “commissioned works”

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Who is an employee?

Right to control the manner and means of production

Skill requiredEmployee benefitsTax treatmentRight to assign additional projectsToolsLocation of work

Pop Quiz!I can make a copy of a work without asking the copyright owner’s permission if –

1. There’s no copyright notice.

2. The work is out of print.

3. The work is an unpublished letter in a research library.

Fact or Fiction?

Obtaining and Maintaining Protection

Copyright formalities

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Securing ProtectionCopyright protection is secured

automatically upon creation (fixation).

No publication or registration is required.

No copyright notice required.

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Securing Protection – A Myth Debunked

From the U.S. Copyright Office website FAQs:

I’ve heard about a “poor man’s copyright.” What is it?The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

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Why Register?

Registration puts others on notice of copyright claim.

Registration (of works of U.S. origin) is required to file suit in federal court.

Registration is prima facie evidence of validity of the copyright and facts in certificate (if made within five years of publication).

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Why Register?

Registration may be recorded with U.S. Customs and Border Protection (CBP) to help prevent importation of pirated products.Statutory damages and attorney’s fees may be claimed in court suits, provided registration is obtained within three months after publication of the work or prior to infringement of the work. Easier to license work, collect royalties, and enforce your rights outside of court.

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Registration Process

A copyright owner must: ◦File an application;◦Pay a nominal filing fee ($35 - $65, depending on whether e-filing or paper filing and type of work); and

◦Deposit copies of the work at the Copyright Office

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Registration

Registration is administered by the U.S. Copyright Office of the Library of Congress

Forms available at www.copyright.gov

Registration does not involve complex examination of applications as for patents and trademarks

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Notice

No notice is required (for works published on or after March 1, 1989).

Notice may benefit the owner against a supposed “innocent infringer.”

Forms of notice: ©, the word “Copyright,” or the abbreviation “Copr.”, year of publication, and name of the copyright owner.

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Why Use a Copyright Notice?

It informs the public that the work is protected by copyright;

It identifies the copyright owner;It shows the year of first publication;It defeats an “innocent infringer” defense. TIP: Provide sufficient additional

information so that a third-party knows how to contact you to obtain your permission to use the work.

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Term of Copyright

For works created on or after January 1, 1978:

Life + 70: In the U.S., copyright subsists from creation and lasts the full life of the author, plus 70 years after the author’s death.

95 Years from Publication: If the author is not a natural person, then copyright lasts 95 years from publication or 120 years from creation, whichever expires first.

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Pop Quiz! I can do the following without asking the copyright owner’s permission–

1. I am producing a high school play and tickets are free.

2. A DJ plays music in my club, but I don’t charge admission.

3. I’m making a copy of a journal article for my own research files.Fact or Fiction?

A bundle of rights

The “copy” right is actually . . .

Rights split into two categories

“Economic” “Moral”ReproductionDistributionPerformanceDisplayCreate derivative

works

Right of attributionRight to publish

anonymously or pseudonymously

Right of integrity

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Transfer of Copyright

“Any or all of the copyright owner’s exclusive rights…may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing…. Transfer of a right on a nonexclusive basis does not require a written agreement.”

-- U.S. Copyright Office, Circular 1, page 6

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Exercise of rights

Many individual authors will exercise their rights collectively through a collective management organization such as ASCAP, BMI, Harry Fox, SoundExchange

In limited cases, statutory licenses are used to remedy market failure.

Infringement

Infringement is the unauthorized or prohibited use of works, infringing the copyright holder’s exclusive rights. In some limited exceptions, unauthorized uses may be permitted.

Exceptions

First sale doctrine; Exceptions for libraries,

archives, and teaching;Certain statutory licenses;TV & radio exceptions;Reproduction for those with

disabilities;Single software copy for

archival purposes.

Fair Use

An exception allowing use for purposes such as:

◦Criticism or comment, ◦News reporting, ◦Teaching, Scholarship or Research.

◦No blanket exemptions!

Fair Use

Four Factor Test:1.The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2.The nature of the copyrighted work; 3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4.The effect of the use upon the potential market for or value of the copyrighted work.

Weighing the Four Factors

Fair Use?

Transformative, Review, criticism, commentary, parody, news, educational, nonprofitLimited creativity, largely factual workSmall amountInsubstantial portionDoes not deprive the copyright owner of income or undermine potential market

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Weighing the Four Factors

Infringement?

Commercial, for-profit, non-transformative

Highly creative work, unpublished

Large amountThe heart of the workDeprives the copyright owner

of income or undermine potential market

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Pop Quiz! I can do the following without asking the copyright owner’s permission–

1. I can use a photograph on my web page that I found on another website.

2. I can use cracking software to make a back-up copy of a DVD that I legally own.

Fact or Fiction?

The Digital Age

New technology always confounds copyright: player piano, radio, TV, Betamax, and now the Internet

We attempt to main technological neutrality.

The Digital Age

The Digital MillenniumCopyright Act (1998)

Prohibits circumvention of technological protection measures

Ensures integrity of Rights Management Information

Creates a Notice-and Take Down system for online infringement.

2002: The TEACH Act sets parameters for use of works in distance learning.

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The Digital Age

Newer challenges:Peer-to-peer file sharing adapts to court casesDigital locker sitesChanging consumer expectations

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Pop Quiz Answers!

Fact or Fiction?

Are you a copyright owner?

Copyright in the Digital Age

Jennie NessJennie.Ness@uspto.gov

(571) 272-9300