Copyright Legislation

Legislation

Copyright Law

The U.S. Constitution, Article I, Section 8, Clause 8 is the source of federal copyright law. It is stated that Congress has the power, "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". In Title 17 of the United States Code, Sections 106-110, three policies for copyright are stated in priority order: 1) the promotion of learning, 2) the preservation of the public domain, and 3) the protection of the author. Implicit in these three policies is a fourth: that individuals have a right to use copyrighted materials. The 1976 Copyright Act was created to deal with the revolution in communications and it is here that the Fair Use Doctrine originated.

Fair Use

Fair Use is the scale that balances the interests of the creator with those of the general public; users, authors, and publishers all have rights under the law. There is recognition that broad copyright protection would stifle rather than advance intellectual progress. The scales have sometimes tipped toward the equitable access of information and, at other times, toward proprietary rights. It is a delicate balance, with the intent of stimulating production for the "national benefit." Academics tend to be both consumers of information and creators, therefore doubling the critical nature of fair use for educational contexts. Codification of the Fair Use Doctrine (Section 107) provides for the fair use of a copyrighted work for purposes such as:criticism, comment, news reporting, teaching, scholarship, and research. These purposes are not an infringement of copyright, but four nonexclusive factors should be considered to determine if any particular case is fair use:

the purpose and character of the use, in particular, prospective commercial use and transformation of the original.
the nature of the copyrighted work, to confirm copyright protection.

the amount and substantiality of the portion used in relation to the copyrighted work as a whole, including quantity, quality, and importance.

the effect of use upon the potential market for or value of the copyrighted work.

All four factors are to be explored and the results weighed together. These factors have not been codified and remain subject to interpretation on a case-by-case basis.

MGM vs. Grokster

June 27, 2005

The Supreme Court issued its ruling in MGM v. Grokster, ruling that the providers of software that is designed to enable “file-sharing” of copyrighted works may be held liable for the copyright infringement that takes place using that software. The Court held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.“

Public Domain Enhancement Act

June 25, 2003, HR 2601

The bill is intended to make it easier for older and endangered copyrighted works to fall into the public domain thus reforming lengthy terms of copyright protection. Copyright owners who wish to avail themselves of the additional 20 years of protection would be required simply to pay a $1 fee 50 years after the work was published and every 10 years thereafter. Materials that would have gone into the public domain (published between 1923 and 1942), if not for the 1998 Sonny Bono Copyright Term Extension Act, and that copyright holders do not intend to exploit commercially during the additional 20 years of protection would enter the public domain. This process would not be an undue burden for the copyright holders (who today must pay a fee when they register with the U.S. Copyright Office) and would realize significant and important public benefits. It is estimated that after 50 years from the time of publication, 98% of copyrighted materials are no longer providing any economic benefit to the copyright holders. Under provisions of this act, the U.S. Copyright Office would establish a user-friendly, efficient electronic filing procedure to process forms to extend the term of protection; collect the minimal $1 maintenance fees; and make the forms broadly available to the public so that there is one centralized directory of titles that remain under the additional twenty years of protection.

Teach, Education, and Copyright Harmonization (TEACH) Act

November 2, 2002, H.R. 2215

This Act declares that limited transmission and display of copyrighted works as part of a course at an accredited, nonprofit, educational institution is not copyright infringement, only if certain conditions are met.

Use of the material must qualify as fair use or permission must be obtained from the copyright owner if established conditions are not met, including the following:

•Materials are made available to enrolled students at an accredited institution only;
•Existing electronic controls (i.e. password protection, etc) are not disabled or avoided;
•Materials must be taken down after a reasonable amount of time.

The Digital Millenium Copyright Act

October 28, 1998, H.R.2281

The Act is designed to implement the treaties signed in December 1996 at the World Intellectual Property Organization (WIPO) Geneva conference, but also contains additional provisions addressing related matters.

As was the case with the 'No Electronic Theft' Act (1997), the bill was originally supported by the software and entertainment industries, and opposed by scientists, librarians, and academics. At the last minute, certain controversial provisions were deleted, including a provision that would have provided copyright protection for databases even when the material in the databases was in the public domain. (Senator Hatch has indicated he will seek to bring up the database provisions as separate legislation next year.)

Many who opposed this bill were concerned about an erosion of the fair use doctrine. To address these concerns, Congress included specific language that may ultimately provide certain exemptions for fair use (particularly for nonprofit archives, libraries, and educational institutions).

Highlights:

Makes it a crime to circumvent anti-piracy measures built into most commercial software.
Outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software.
Permits the cracking of copyright protection devices, however, only in order to conduct encryption research, assess product interoperability, and test computer security systems.
Provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances.
In general, limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet.
Service providers are expected, however, to remove material from users' web sites that appears to constitute copyright infringement.
Limits liability of nonprofit institutions of higher education -- when they serve as online service providers and under certain circumstances -- for copyright infringement by faculty members or graduate students.
Requires that "webcasters" pay licensing fees to record companies.
Requires that the Register of Copyrights, after consultation with relevant parties, submit to Congress recommendations regarding how to promote distance education through digital technologies while "maintaining an appropriate balance between the rights of copyright owners and the needs of users."
States explicitly that nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use.

Sonny Bono Copyright Term Extension Act

Pub. L. 105-298, October 17, 1998

Extended the term of copyright by an additional twenty years. It was previously the creator’s lifetime plus 50 years and is now life plus 70 years.

Upheld in February, 2003 by the Supreme Court in Eldredge vs. Ashcroft.

The 'No Electronic Theft' Act

December 16, 1997, HR 2265

HR 2265 was viewed as "closing a loophole" in the criminal law. Under the old statutory scheme, people who intentionally distributed copied software over the Internet did not face criminal penalties as long as they did not profit from their actions. The act was strongly backed by the software and entertainment industries but opposed by library and academic groups.

The WIPO Copyright Treaty

DIPLOMATIC CONFERENCE ON CERTAIN COPYRIGHT AND NEIGHBORING RIGHTS QUESTIONS

Geneva, December 2 to 20, 1996

•Desiring to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,
• Recognizing the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments,
• Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works,
• Emphasizing the outstanding significance of copyright protection as an incentive for literary and artistic creation,
• Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention.

Case Law

The Internet has revolutionized communication and education by making readily available digital text and images. Many campus practices related to the free exchange of information have been called into question by powerful forces trying to corner the new digital market. The following is a summary of the case law that provides insights into various courts’ copyright interpretations to help you weigh the risks (in descending order from the most recent cases).

MGM v. Grokster (2005)

Eldred v. Ashcroft (2003) [Court upholds copyright term extension]

The U.S. Supreme Court upheld the constitutionality of the Sonny Bono Copyright Term Extension Act. The Act, passed by Congress in 1998, extends the copyright term for an additional 20 years, so that a commercially-produced work is now governed by the provisions of copyright law for 95 years; for an individual’s work the term is "life of the author" plus 70 years.

In Eldred v. Ashcroft, the Court held that Congress acted within its authority under the Constitution's Copyright Clause when it expanded the term of protection. The Court held that it "was not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be." The Court also rejected arguments against the Act under the First Amendment. In doing so, Justice Ginsburg, writing for the majority, noted that the Copyright Act's "fair use" provision provides a "built-in" First Amendment accommodation. Two justices, Stevens and Breyer, filed separate dissenting opinions in which they expressed strong disagreement with the majority's holding.

The opinions can be found at the following sites:
Majority opinion by Justice Ginsburg
Dissent by Justice Stevens
Dissent by Justice Breyer

Additional Background and Analysis:
Amici curiae (friend of the court) brief in support of challengers
Lawrence Lessig, How I Lost the Big One

Kelly v. Arriba Soft (2002) [Court says thumbnail image linking is fair use]

EFF's amicus curiae brief

A federal appeals court ruled that a search engine's display of miniature images of copyrighted works is allowed under fair use, upholding a similar ruling in February 2002. The plaintiff in the case, photographer Leslie Kelly, had sued image search engine firm Arriba Soft over thumbnail images of her works that were accessible via Arriba's Ditto.com search engine.

Bridgeman Art Library v. Corel Corp. [a triumph for fair use of images]

The case was instituted by The Bridgeman Art Library (Bridgeman), an English company in the business of marketing transparencies of public domain works of art owned by museums and collectors as well as distributing its images as transparencies and as digital files on CD-ROM. The defendant, Corel, was a Canadian corporation which marketed a CD-ROM containing seven hundred digital reproductions of well known paintings by European masters, including 120 images of which Bridgeman claimed it controlled the only authorized reproductions. Bridgeman sued Corel and lost the case. The District Court held that substantially exact photographic reproductions of works of art are not independently copyrightable, because they lack the component of originality required under the copyright laws of both the United States and the United Kingdom. Consequently, the Court determined that any unauthorized use of those reproductions would not violate the laws of copyright.

Reno v. ACLU, 117 S.Ct. 2329 (1997) [for a Web free from censorship]

In which the U.S. Supreme Court found the Communications Decency Act unconstitutional. The highest court in the land supported the free exchange of ideas and championed freedom of expression comparing the Web to a vast library and sprawling mall.

Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994),

Transformative uses were more favored than verbatim copying in fair-use applications. May have implications for student-generated products (Bruwelheide, 1995, p. 99).

Playboy Enterprises Inc. v. Frena, 839 F. Supp. 152 (M.D. Fla., 1993).

A Playboy coprighted image of a photograph was uploaded to an electronic bulletin board by a subscriber and downloaded to another subscriber. The court decided that this affected Playboy’s distribution right and found in their favor (reproduction rights were not addressed). (Bruwelheide, 1995, p. 100).

Basic Books Incorporated v. Kinko’s Graphics Corp., 758 F. Supp. 1522

(S.D.N.Y. 1991) [the 10% rule of thumb grew out of this case] In which Kinko’s lost to eight major New York publishers for copying and selling for profit substantial excerpts from copyrighted books used in course packets and anthologies (Bruwelheide, 1995, p. 98).

Feist Publications v. Rural Telephone Service Co., Inc. (1991).

Held that Rural's white pages are not entitled to copyright, and therefore Feist's use of them does not constitute infringement.

Encyclopedia Britannica Educational Corp. v. Crooks, 558 F. Supp.

1247 (W.D.N.Y 1983). The Board of Cooperative Educational Services (BOCES) systematically taped off-air programming and made multiple copies of the tapes for member institutions. The court found that this practice would have a significant effect on the market for commercially produced videos (Bruwelheide, 1995, p. 99).

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