CCT 231 85 Chapter 2

Copyright Infringement-If a person or entity has used a copyrighted work without permission, the copyright owners may file an action for copyright infringement. A plaintiff in a copyright infringement lawsuit has a number of remedies available against the defendant:

1. Monetary damages. The plaintiff may recover actual damages and lost profits from unauthorized use of the copyrighted material. 2. Statutory damages. Copyright owners who register the work with the U.S. Copyright Office prior to the infringement can recover statutory damages in lieu of actual damages. A copyright owner may elect, at any time before final judg- ment is rendered, to recover statutory damages instead of actual damages and profits. The award of statutory damages must be no less than $750 nor more than $30,000 for all infringements involved in the action, with respect to any one work. Where the copyright infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.9 3. Attorneys' fees. A prevailing plaintiff in a copyright infringement action may recover reasonable attorneys' fees. 4. Preliminary Injunction or Temporary Restraining Order (TRO). In addition to monetary damages, statutory damages, and attorneys' fees, plaintiffs can also seek a preliminary injunction or temporary restraining order. The court can order a website operator to remove certain content.

Copyright notice consists of three elements:

1. The symbol © (letter C in a circle); the word "Copyright"; or the abbreviation "Copr." 2. The year of first publication; and 3. The name of the copyright owner, an abbreviation by which the name can be recognized, or a generally known alternative designation of owner.

Intellectual Property

A category of intangible rights protecting commercially valuable products of the human intellect that comprises primarily copyright, trademark, patent, and trade secret rights.

Copyright Act of 1976

A major revision of U.S. copyright law, extending the term of protection to the life of the author plus 50 years, measured from the date of creation; greatly expanding the types of works that qualify for protection; dropping the requirement that the work be published before it can be protected; making fair use a statutory defense to a claim in infringement; and preempting state common-law copyright. Also called 1976 Copyright Act.17 U.S.C. §§ 101 et seq.

Fair Use

A reasonable and limited use of a copyrighted work without the author's permission, such as quoting from a book in a book review or using parts of it in a parody. Fair use is a defense to an infringement claim, depending on the following statutory factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the work used, and (4) the economic impact of the use. 17 U.S.C. § 107.

Derivative Work

A work that is based on a preexisting work. Only the holder of the copyright on the original form can produce or permit someone else to produce a derivative work.

Copyright Term Extension Act (CTEA)

Act passed by Congress in 1998 that extended the duration of copyright protection by 20 years for works copyrighted after January 1, 1923. 17 U.S.C. §§ 302-304.

Intellectual property rights

Also fall under the umbrella of intangible property. Intellectual property covers a category of intangible rights protecting commercially valuable products of the human intellect.

Berne Convention

An international copyright treaty providing that works created by citizens of one signatory nation will be fully protected in other signatory nations, without the need for local formalities. Also called the Berne Convention for the Protection of Literary and Artistic Property.

Copyright Duration

As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For works made for hire and anonymous and pseudonymous works created after 1978, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter (unless the author's identity is later revealed in Copyright Office records, in which case the term becomes the author's life plus 70 years).6 A "work made for hire" is either (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned and created by an independent contractor.

Websites

As a general rule, original content for a website is considered an "original work of authorship" under the Copyright Act and can receive copyright protection. Copyright law protects web design, text, images, photographs, midi files, clipart, and audio associated with websites provided the work is origina

Black's Law Dictionary defines property

As simply as the right to possess, use, and enjoy a certain thing.1 Several different types of property exist.

Property rights

Can also be classified into the categories of tangible property and intangible property.

Trademark

Can be a word, name, symbol, or logo used in the ownership of a product or service.

Video games

Can receive protection under copyright law as audiovisual works, since a video game consists of visual and aural features of an audiovisual display containing original variations sufficient to render the display copyrightable as an audiovisual work. The copyright on the audiovisual display of a video game is valid even though the computer program producing the display is not copyrighted.

Real property

Encompasses land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land. Real property can consist of a single-family home, a commercial building, or land used for farming.

Digital Millenium Copyright Act

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) to protect copyright owners and respond to the increase in popularity and usage of digital content.8 The DMCA limits copyright liability for Internet service providers and expands the ability of software owners to copy programs. The DMCA also extends copyright protection to computer programs, movies, and other audiovisual works worldwide. The statute also attempts to regulate cyberspace and forbids devices whose purpose is to evade digital antipiracy tools. The DMCA also bars the production or distribution of falsified copyright-management information.

Personal property

Includes any movable or intangible thing that is subject to ownership and not classified as real property.

Patent

Is a grant from the government that permits the owner the right to prevent others from making, using, importing, or selling an invention. Patents are only available for novel, useful, and non-obvious inventions.

For websites, the copyright notice

Is usually placed at the bottom of the webpage. This notice usually consists of (1) the copyright symbol "©" or the word "copyright"; (2) the year of first publication or years of operation for the website; and (3) and the name of the copyright owner, which is usually the company name.

Trade Secret

Is valuable business information that if known by a competitor would afford the competitor some advantage. Examples of trade secrets include customer lists, marketing plans, and secret formulas such as the secret formula for Coca-Cola. The owner must make reasonable attempts to maintain secrecy of the trade secret.

Intangible property

Lacks a physical existence. Examples of intangible property include stock options and business goodwill.

Trademark law

Protects the rights of businesses who use distinctive names, designs, logos, slogans, or other signifiers to identify and distinguish their products and services. Trademarks last perpetually as long as they are in use and do not become generic.

Berne Convention

The Berne Convention, also called the Berne Convention for the Protection of Literary and Artistic Property, is an international copyright treaty providing that works created by citizens of one signatory nation will be fully protected in other signatory nations, without the need for local formalities. The treaty was drafted in Berne, Switzerland in 1886 and revised in Berlin, Germany, in 1908. The Berne Convention, now administered by the World Intellectual Property Organization (WIPO), prescribes minimum levels and terms of copyright protection. The U.S. ratified (or adopted) the Berne Convention in 1989 with the passage of the Berne Convention Implementation Act and changed several aspects of U.S. copyright law to comply with the terms of the treaty.

TRIPS Agreement

The U.S. entered into the Trade Related Aspects of International Property Rights Agreement (TRIPS Agreement) in 1999. 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994). The TRIPS Agreement, signed in 1994, came into force on January 1, 1995. As a result of the emergence of TRIPS, the main forum for rulemaking shifted from the World Intellectual Property Organization (WIPO) to the World Trade Organization (WTO), and the agreement transformed the substantive rules of previous international IP stan- dards. Unable to resolve the issue of piracy of DVDs found in China, the United States initiated a WTO dispute against China in 2007 charging China with violating its obligations under the TRIPS Agreement. The United States brought three claims concerning copyright, customs, and criminal law. In January of 2009, the WTO panel found a number of shortcomings in the protection of IPRs in China that were incompatible with TRIPS obligations.13 According to the WTO panel, it is a violation of TRIPS for China to refuse copyright protection of works that do not meet China's legal standards, but there was insufficient evidence to conclude that China's threshold for prosecution in its criminal law was a violation of TRIPS. China and the U.S. accepted the panel's findings, and China negotiated with the United States to implement the recommendations by March of 2010.

Universal Copyright Convention

The Universal Copyright Convention is a 1952 treaty that binds signatories (countries that have signed the treaty) to give citizens of other member nations the same copyright protection that their own citizens receive. The central provision of the Universal Copyright Convention is that each member county is required to accord to the published works of nationals of any other member country the same protection as that accorded to works of its own citizens. Protection is also accorded to unpublished works. The author of a work protected under the Universal Copyright Convention has the exclusive right to publish or to authorize publication of translations of that work.

WIPO Copyright Treaty

The WIPO Copyright Treaty (WCT) is a 1996 treaty that made changes in the Berne Convention in light of the TRIPs Agreement and dealt with new copyright issues raised by the emergence of the Internet and other digital technology. The WIPO Treaty expressly protects computer software and databases and expressly excludes from protection ideas, procedures, methods of operation or mathematical concepts as such.

Copyright Infringement

The act of violating any of a copyright owner's exclusive rights granted by the Copyright Act.

Computer Programs and Software

The copyrightability of computer programs is firmly established, and a computer program is a "work of authorship" entitled to protection under the Copyright Act. Open source software, such as Open Office, in contrast, is not protected by copyright protection.

Copyright

The right to copy a property right in an original work of authorship fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. Copyright includes literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings.

First Sale Doctrine

The rule that the purchaser of a physical copy of a copyrighted work, such as a book or CD, may give or sell that copy to someone else without infringing the copyright owner's exclusive distribution rights.

Prioritizing Resources and Organization for Intellectual Property Act

To help enforce copyright laws through the world, President George W. Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act), PL. 110-403, 122 Stat. 4256.14 The PRO-IP Act strengthens border enforcement programs around the world, increases damages in criminal infringement cases, and creates a "copyright czar" within the Executive Office of the President who oversees the country's efforts to curb piracy and counterfeiting. The copyright czar or "IP Enforcement Representative" (also called "IP Enforcement Coordinator") is appointed by the president and approved by the Senate. On September 24, 2009, President Barack Obama appointed Victoria A. Espinel as the first U.S. Intellectual Property Enforcement Coordinator.

Transformative Use

Use of copyrighted material in a manner, or for a purpose, that differs from the original use in such a way that the expression, meaning, or message is essentially new.

INTERNATIONAL ENFORCEMENT OF COPYRIGHTS

While no single treaty governs copyrights throughout the world among all nations, the United States has entered in various international agreements and treaties to protect the interests of U.S. copyright owners. The main agreements to protect these interests are the Berne Convention, the Universal Copyright Convention, and the Trade Related Aspects of International Property Rights Agreement (TRIPS Agreement).

Public Domain

Works that are not protected by intellectual- property rights and are therefore available for anyone to use without liability for infringement. When copyright, trademark, patent, or trade-secret rights are lost or expire, the intellectual property they had protected becomes part of the public domain.

Tangible property

as a physical existence and includes personal property that can be seen, weighed, measured, felt, or touched, or is in any other way perceptible to the senses, such as furniture, cooking utensils, and books

Under the DMCA safe harbor provision in 17 U.S.C. § 512(c), notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. iv. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. v. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. vi. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act (17 U.S.C. § 106) generally gives the owner of a copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords; • To prepare derivative works based upon the work; • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.