Fair Use Of A Copyrighted Work example essay topic

Intellectual Property In an Electronic World Business Law & Ethics Introduction This paper provides a general overview of some major issues facing both producers, publishers and consumers of intellectual property. The emphasis, however, is on copyright. Today, of course, that copyright includes the all-pervasive electronic environment of the internet. There are many media in which intellectual property problems arise.

History and Definitions " Intellectual property" is property resulting from another's creative efforts. Trademarks, logos, patents, books, computer files, movies, music, painting, menus, choreographic works, pantomimes, product packaging, architectural designs and even sculpture may be considered to be intellectual property. In fact, even a student paper such as this may (perhaps too generously) be classified as intellectual property. The Miller - Jenz text makes the observation that". ... the value of the world's intellectual property now exceeds the value of physical property... ". Clearly, then, intellectual property has become a huge factor in business, social life, entertainment, and international trade.

There is much government regulation in the field of intellectual property, as well. In the past, the most important aspects of law involving intellectual property were copyright and fair use, defamation, trademarks, trade secrets and patents. Prior to statutory copyright laws, a common law of copyright existed which protected an author's work only until it was published. After being published, if there was not statutory protection, then the author's work entered the public domain and became unprotected! One a work is in the public domain, it cannot be protected. Statutory copyright law in the United States originated with Article I, Section 8 of the U.S. Constitution: "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".

Congress enacted the first copyright law in 1790. It was decided early that the term "writings" includes many things which might not be considered "writings" in the normal use of the term. It is possible to sue under common law copyright infringement. In fact, such a suit can be brought in a state court. However, an action for statutory copyright infringement must be brought a federal district court. Trade secrets, which includes not only research and development, but also such things as lists of customers is covered in some states under common law, while other states have adopted the Uniform Trade Secrets Act.

Trade secrets, unlike copyright law, may protect facts (copyright protection extends only to the creative expression of fact). Contractual protection of trade secrets is also common, in the form of non-competition and confidentiality agreements. Trademarks, or service marks, are words, phrases, slogans, designs or symbols that identify a specific product brand. A trade name, on the other hand, is the formal name that you have permission to use within a particular state. Permission is usually given by the secretary of state to use a particular name, if no one else has incorporated under the name or registered the name. The general rule in trademark law is that the first business to use a trademark owns the trademark.

Actual use may actually take precedence over registration of a trademark with the U.S. Patent and Trademark Office! Of course, these areas have continued to be very important in the electronic age, especially with the advent of the internet. Other areas of intellectual property law which are relatively new include technology transfers, licensing, patents / cop rights of software, and the application of international law to the field of intellectual property, including multi-lateral and bilateral agreements. Modern Copyright Law The most important area of intellectual property in the electronic environment is copyright. Copyright gives owners the exclusive right to reproduce and reap the economic benefits of their work.

Interestingly, there is no requirement that a particular work be new, novel or unique, a fact which sharply distinguishes the law of copyright from the law of patents. Where a work was made by an employee working within the scope of employment, the employer is considered the 'author". Copyrights in the United States are governed by the Copyright Act of 1976. A copyright is defined as a right to intangible property granted by statute to the author or originator of certain types of intellectual property.

The current term of a copyright is the life of the author, plus fifty years. Publishing houses own a copyright for seventy-five years from the date of publication or one hundred years from the date of creation, whichever is less. If multiple authors are involved, the copyright expires fifty years after the death of the last author. A copyright is created automatically. It arises automatically "as soon as some aspect of a protect able work has been fixed in a tangible medium". Registration and notice are not required.

There is no longer a requirement to place the copyright mark on material to indicate a copyright. The rationale is that "Chances are that if somebody created it, somebody owns it". However, there are advantages to giving notice and registering copyrights. Registration is only necessary if legal action may be required, and if the work was created in the U.S.A. Copyrights can be registered with the U.S. Copyright Office, in Washington, D.C. There are limitations in the extent of copyright protection. The limitation of term was mentioned above.

Another important limitation is that an idea cannot be copyrighted. Only the particular manner of expression is protect able. The following are expressly excluded from protection under the Copyright Act of 1976: ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. Facts are not copyrightable.

However, compilations of facts are copyrightable. Section 103 of the Copyright Act defines a compilation as "a work formed by the collection and assembling of pre-existing materials of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship". Originality is essential. Miller - Jenz cites one case where a Donnelley yellow pages publication was held by the 11th Circuit not to be copyrightable as a compilation! Mathematical calculations are not copyrightable. (One wonders how Newton might have fared with his Principia Mathematica!) Copyrights are the right to prevent publication, not a right to publication.

Field points out that a libelous web page ore mail message may be protected by copyright, but that to publish or distribute such material might incur liability. Other limitations include the fair use doctrine, material which is illegal, and property which has been put into the public domain. The fair use doctrine is now embodied in Section 107 of the Copyright Act, and comes into play in almost every aspect of today's electronic world, especially the internet:" [T] he fair use of a copyrighted work, including such use by reproduction in copies or or by any other means specified by [Section 106 of the Copyright Act, ] for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include - (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) (2) the nature of the copyrighted work; (3) (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) (4) the effect of the use upon the potential market for or value of the copyrighted work.

Unfortunately, it is impossible to provide clear-cut rules for determining what constitutes fair use in every circumstance. This means that anyone reproducing someone else's material is potentially violating the copyright law! The courts tend to decide what constitutes fair use on a case-by-case basis. For example, Miller - Jenz cite a case where a rap group recorded a parody of the famous Roy Orbison song, "Oh, Pretty Woman". The owner of the copyright sued the rap group 2 Live Crew. The district court held in favor of the rap group, the circuit court reversed, and the Supreme Court finally decided the parody constituted fair use, after all.

It's an area of law where even experienced publishers never feel completely at ease. In determining whether or not a use is "fair use", the courts give strong consideration to whether or not the use was for commercial use (i. e., for profit), and whether the use injures the author from realizing an income from his work. The courts are much more liberal in interpreting the scope of fair use when dealing with educational use and scholarship. Courts tend to look very unfavorably on any uses which do not credit the original author. Field says that "commercial uses of another's work are particularly frowned upon", giving the example of someone who posts an email message so as to imply the author endorses a particular product.

Computer Software in the United States is now protected under the 1980 Computer Software Act, which amends the Copyright Act to include computer programs. The statute defines computer programs as a "set of statements or instructions to be used directly or indirectly in a compute in order to bring about a certain result". (I wonder if our team's Powerpoint Presentation qualifies?) On the important aspect of software interface design, a federal district court held in the famous case of Apple Computer, Inc. vs. Microsoft Corp. that the "look and feel" of the Mac was not protect able. (And of course, as a result Windows now looks like a sibling of the Mac interface - remember what DOS looked like before Windows? !) The Copyright Act specifically excludes "methods of operation" (as noted above) from protection. For example, in Lotus Development vs. Borland International inc., the 1st Circuit held that Lotus' menu structure was not copyrightable.

Other than fair use, it is possible to implicitly grant a license to another, by the nature of the author's conduct. The general rule for internet material is that web pages and email messages are protected by copyright as soon as they are created. Even public messages posted to a bulletin board or list serv are, in theory, copyrighted! However, posting a message to a public email list probably constitutes an implied license to forward or archive the message. If the authors of such email messages wish to retain their copyright and / or to restrict the use, the are well advised to broadcast a notice specifying the terms of the license. International Protection of Intellectual Property Various international agreements involve the protection of copyrights, including the Paris Convention of 1883, Berne Convention and the Universal Copyright Convention.

The most significant international agreement protecting intellectual property, however, is TRIPS - the 1994 agreement on Trade-Related Aspects of Intellectual Property Rights, which was originally part of GATT, and has now been annexed to the agreement creating the World Trade Organization in 1995. TRIPS has provisions protecting patents, trademarks, video, computer software, and copyright protection for intellectual property. Protection of intellectual property continues to be a huge problem for the USA, which leads the world in export of intellectual property. To take one example of the problems even such a large (and aggressive) company as Microsoft faces in emerging markets, Microsoft estimates that 99% (sic) of the software used in Vietnam is pirated.

Vietnam is seeking to join the WTO. Continuing with Vietnam as an example, when Vietnam does join the WTO, it will have to honor TRIPS. That means it may no longer discriminate against foreign owners of intellectual property rights, and that it must ensure that legal procedures are made available to prevent the infringement of intellectual property rights. Internet publishers who are unable to afford the cost of registering every single page of a web site (cost is $20 per registration) may instead register multiple works as a collection.

Since copyright registration requires the sending of materials, the internet publisher faces the choice of sending screen printouts, or code, or both. If the code is more important, Field recommends treating the content of a web site like software. Copyright Enforcement If the author believes he may have to sue to prevent infringement, he is well advised to register the copyright. This is also true of copyrighted material on the internet. Copyright notice prevents the defense of innocent infringement, and increases the chances for a big bucks recovery on willful infringement, where the statutory damages can be up to $100,000.

An action for statutory copyright infringement, as noted earlier, must be filed in federal court. Of course, depending on the nature of the facts involved, there may also be other theories of recovery available.

Bibliography

Miller, L.M., and Jenz, G.A., Business Law Today, 6th Edition. (2002). South-Western College..