{"id":249,"date":"2014-09-17T00:42:03","date_gmt":"2014-09-17T00:42:03","guid":{"rendered":"https:\/\/courses.candelalearning.com\/buslegalenv\/?post_type=chapter&#038;p=249"},"modified":"2021-02-11T20:20:06","modified_gmt":"2021-02-11T20:20:06","slug":"30-3-copyright","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/chapter\/30-3-copyright\/","title":{"raw":"Copyright","rendered":"Copyright"},"content":{"raw":"<div class=\"bcc-box bcc-highlight\">\r\n<h3>Learning Objectives<\/h3>\r\nBy the end of this section, you will be able to:\r\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\r\n \t<li>Describe and explain copyrights, how to obtain one, and how they differ from trademarks.<\/li>\r\n \t<li>Explain the concept of fair use and describe its limits.<\/li>\r\n<\/ul>\r\n<\/div>\r\n<div id=\"mayer_1.0-ch32_s03_s01\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Definition and Duration<\/h2>\r\nCopyright is the legal protection given to \u201cauthors\u201d for their \u201cwritings.\u201d Copyright law is federal; like patent law, its source lies in the Constitution. Copyright protects the expression of ideas in some tangible form, but it does not protect the ideas themselves. Under the 1976 Copyright Act as amended, a copyright in any work created after January 1, 1978, begins when the work is fixed in tangible form\u2014for example, when a book is written down or a picture is painted\u2014and generally lasts for the life of the author plus 70 years after his or her death. This is similar to copyright protection in many countries, but in some countries, the length of copyright protection is the life of the author plus 50 years. For copyrights owned by publishing houses, done as works for hire, common copyright expires 95 years from the date of publication or 120 years from the date of creation, whichever is first. For works created before 1978, such as many of Walt Disney\u2019s movies and cartoons, the US Sonny Bono Copyright Term Extension Act of 1998 provided additional protection of up to 95 years from publication date. Thus works created in 1923 by Disney would not enter the public domain until 2019 or after, unless the copyright had expired prior to 1998 or unless the Disney company released the work into the public domain. In general, after expiration of the copyright, the work enters the <span class=\"im_margin_term\"><span class=\"im_glossterm\">public domain<\/span><\/span>.\r\n\r\nIn 1989, the United States signed the Berne Convention, an international copyright treaty. This law eliminated the need to place the symbol \u00a9 or the word <em class=\"im_emphasis\">Copyright<\/em> or the abbreviation <em class=\"im_emphasis\">Copr.<\/em> on the work itself. Copyrights can be registered with the US Copyright Office in Washington, DC. Under the Berne Convention every member country must recognize the copyrights of authors who are citizen of other member countries. IF a citizen of a country that has not signed the convention first published a book in a country that has signed, all other countries that have signed the convention must recognize the authors copyright.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch32_s03_s02\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Protected Expression<\/h2>\r\nThe Copyright Act protects a variety of \u201cwritings,\u201d some of which may not seem written at all. These include literary works (books, newspapers, and magazines), music, drama, choreography, films, art, sculpture, and sound recordings. Since copyright covers the expression and not the material or physical object, a book may be copyrighted whether it is on paper, microfilm, tape, or computer disk.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch32_s03_s03\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Rights Protected by the Copyright Act<\/h2>\r\n<div id=\"mayer_1.0-ch32_s03_s03_s01\" class=\"im_section\">\r\n<h3 class=\"im_title im_editable im_block\">Preventing Copying<\/h3>\r\nA copyright gives its holder the right to prevent others from copying his or her work. The copyright holder has the exclusive right to reproduce the work in any medium (paper, film, sound recording), to perform it (e.g., in the case of a play), or to display it (a painting or film). A copyright also gives its holder the exclusive right to prepare derivative works based on the copyrighted work. Thus a playwright could not adapt to the stage a novelist\u2019s book without the latter\u2019s permission.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch32_s03_s03_s02\" class=\"im_section\">\r\n<h3 class=\"im_title im_editable im_block\">Fair Use<\/h3>\r\nOne major exception to the exclusivity of copyrights is the <span class=\"im_margin_term\"><span class=\"im_glossterm\">fair use doctrine<\/span><\/span>. Section 107 of the Copyright Act provides as follows:\r\n<blockquote>Fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by section 106 of the copyright, 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\u2013\r\n\r\n(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;\r\n\r\n(2) the nature of the copyrighted work;\r\n\r\n(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and\r\n\r\n(4) the effect of the use upon the potential market for or value of the copyrighted work.<span id=\"mayer_1.0-fn32_012\" class=\"im_footnote\">17 United States Code, Section 107.<\/span><\/blockquote>\r\nThese are broad guidelines. Accordingly, any copying could be infringement, and fair use could become a question of fact on a case-by-case basis. In determining fair use, however, courts have often considered the fourth factor (effect of the use upon the potential market for the copyrighted work) to be the most important.\r\n\r\nClear examples of fair use would be when book reviewers or writers quote passages from copyrighted books. Without fair use, most writing would be useless because it could not readily be discussed. But the doctrine of fair use grew more troublesome with the advent of plain-paper copiers and is now even more troublesome with electronic versions of copyrighted materials that are easily copied and distributed. The 1976 act took note of the new copier technology, listing \u201cteaching (including multiple copies for classroom use)\u201d as one application of fair use. The Copyright Office follows guidelines specifying just how far the copying may go\u2014for example, multiple copies of certain works may be made for classroom use, but copies may not be used to substitute for copyrighted anthologies.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch32_s03_s03_s03\" class=\"im_section\">\r\n<h3 class=\"im_title im_editable im_block\">Infringement<\/h3>\r\nVerbatim use of a copyrighted work is easily provable. The more difficult question arises when the copyrighted work is altered in some way. As in patent law, the standard is one of substantial similarity.\r\n\r\n<\/div>\r\n<\/div>\r\n<div id=\"mayer_1.0-ch32_s03_s04\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Copyrightability Standards<\/h2>\r\nTo be subject to copyright, the writing must be \u201cfixed\u201d in some \u201ctangible medium of expression.\u201d A novelist who composes a chapter of her next book in her mind and tells it to a friend before putting it on paper could not stop the friend from rushing home, writing it down, and selling it (at least the federal copyright law would offer no protection; some states might independently offer a legal remedy, however).\r\n\r\nThe work also must be creative, at least to a minimal degree. Words and phrases, such as names, titles, and slogans, are not copyrightable; nor are symbols or designs familiar to the public. But an author who contributes her own creativity\u2014like taking a photograph of nature\u2014may copyright the resulting work, even if the basic elements of the composition were not of her making.\r\n\r\nFinally, the work must be \u201coriginal,\u201d which means simply that it must have originated with the author. The law does not require that it be novel or unique. This requirement was summarized pithily by Judge Learned Hand: \u201cIf by some magic a man who had never known it were to compose anew Keats\u2019s Ode on a Grecian Urn, he would be an author, and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats\u2019s.\u201d<span id=\"mayer_1.0-fn32_013\" class=\"im_footnote\"><em class=\"im_emphasis\">Sheldon v. Metro-Goldwyn Pictures Corp.<\/em>, 81 F.2d 49 (2d Cir. 1936).<\/span> Sometimes the claim is made that a composer, for example, just happened to compose a tune identical or strikingly similar to a copyrighted song; rather than assume the unlikely coincidence that Judge Hand hypothesized, the courts will look for evidence that the alleged copier had access to the copyrighted song. If he did\u2014for example, the song was frequently played on the air\u2014he cannot defend the copying with the claim that it was unconscious, because the work would not then have been original.\r\n\r\nSection 102 of the Copyright Act excludes copyright protection for any \u201cidea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied.\u201d<span id=\"mayer_1.0-fn32_014\" class=\"im_footnote\">17 United States Code, Section 102.<\/span>\r\n\r\nEinstein copyrighted books and monographs he wrote on the theory of relativity, but he could not copyright the famous formula <em class=\"im_emphasis\">E = mc<\/em><sup class=\"im_superscript\">2<\/sup>, nor could he prevent others from writing about the theory. But he could protect the particular way in which his ideas were expressed. In general, facts widely known by the public are not copyrightable, and mathematical calculations are not copyrightable. Compilations of facts may be copyrightable, if the way that they are coordinated or arranged results in a work that shows some originality. For example, compiled information about yachts listed for sale may qualify for copyright protection.<span id=\"mayer_1.0-fn32_015\" class=\"im_footnote\"><em class=\"im_emphasis\">BUC International Corp. v. International Yacht Council, Ltd.<\/em>, 489 F.3d 1129 (11th Cir. 2007).<\/span>\r\n\r\nOne of the most troublesome recent questions concerning expression versus ideas is whether a computer program may be copyrighted. After some years of uncertainty, the courts have accepted the copyrightability of computer programs.<span id=\"mayer_1.0-fn32_016\" class=\"im_footnote\"><em class=\"im_emphasis\">Apple Computer, Inc. v. Franklin Computer Corp.<\/em>, 714 F.2d 1240 (3d Cir. 1983).<\/span> Now the courts are wrestling with the more difficult question of the scope of protection: what constitutes an \u201cidea\u201d and what constitutes its mere \u201cexpression\u201d in a program.\r\n\r\nHow far the copyright law will protect particular software products is a hotly debated topic, sparked by a federal district court\u2019s ruling in 1990 that the \u201clook and feel\u201d of Lotus 1-2-3\u2019s menu system is copyrightable and was in fact infringed by Paperback Software\u2019s VP-Planner, a competing spreadsheet.<span id=\"mayer_1.0-fn32_017\" class=\"im_footnote\"><em class=\"im_emphasis\">Lotus Development Corp. v. Paperback Software International<\/em>, 740 F.Supp. 37 (D. Mass. 1990).<\/span> The case has led some analysts to \u201cfear that legal code, rather than software code, is emerging as the factor that will determine which companies and products will dominate the 1990s.\u201d<span id=\"mayer_1.0-fn32_018\" class=\"im_footnote\">Peter H. Lewis, \u201cWhen Computing Power Is Generated by the Lawyers,\u201d <em class=\"im_emphasis\">New York Times<\/em>, July 22 1990.<\/span>\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch32_s03_s05\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Who May Obtain a Copyright?<\/h2>\r\nWith one important exception, only the author may hold the initial copyright, although the author may assign it or license any one or more of the rights conveyed by the copyright. This is a simple principle when the author has written a book or painted a picture. But the law is unclear in the case of a motion picture or a sound recording. Is the author the script writer, the producer, the performer, the director, the engineer, or someone else? As a practical matter, all parties involved spell out their rights by contract.\r\n\r\nThe exception, which frequently covers the difficulties just enumerated, is for works for hire. Any person employed to write\u2014a journalist or an advertising jingle writer, for example\u2014is not the \u201cauthor.\u201d For purposes of the statute, the employer is the author and may take out the copyright. When the employee is in fact an \u201cindependent contractor\u201d and the work in question involves any one of nine types (book, movies, etc.) spelled out in the Copyright Act, the employer and the creator must spell out their entitlement to the copyright in a written agreement.<span id=\"mayer_1.0-fn32_019\" class=\"im_footnote\"><em class=\"im_emphasis\">Community for Creative Non-Violence v. Reid<\/em>, 109 S.Ct. 2166 (1989).<\/span>\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch32_s03_s06\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Obtaining a Copyright<\/h2>\r\nUntil 1978, a work could not be copyrighted unless it was registered in the Copyright Office or was published and unless each copy of the work carried a copyright notice, consisting of the word <em class=\"im_emphasis\">Copyright<\/em>, the abbreviation <em class=\"im_emphasis\">Copr.<\/em>, or the common symbol \u00a9, together with the date of first publication and the name of the copyright owner. Under the 1976 act, copyright became automatic whenever the work was fixed in a tangible medium of expression (e.g., words on paper, images on film or videotape, sound on tape or compact disc), even if the work remained unpublished or undistributed. However, to retain copyright protection, the notice had to be affixed once the work was \u201cpublished\u201d and copies circulated to the public. After the United States entered the Berne Convention, an international treaty governing copyrights, Congress enacted the Berne Implementation Act, declaring that, effective in 1989, notice, even after publication, was no longer required.\r\n\r\nNotice does, however, confer certain benefits. In the absence of notice, a copyright holder loses the right to receive statutory damages (an amount stated in the Copyright Act and not required to be proved) if someone infringes the work. Also, although it is no longer required, an application and two copies of the work (for deposit in the Library of Congress) filed with the Copyright Office, in Washington, DC, will enable the copyright holder to file suit should the copyright be infringed. Unlike patent registration, which requires elaborate searching of Patent and Trademark Office (PTO) records, copyright registration does not require a reading of the work to determine whether it is an original creation or an infringement of someone else\u2019s prior work. But copyright registration does not immunize the holder from an infringement suit. If a second work has been unlawfully copied from an earlier work, the second author\u2019s copyright will not bar the infringed author from collecting damages and obtaining an injunction.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch32_s03_s07\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Computer Downloads and the Digital Millennium Copyright Act<\/h2>\r\nThe ubiquity of the Internet and the availability of personal computers with large capacities have greatly impacted the music business. Sharing of music files took off in the late 1990s with Napster, which lost a legal battle on copyright and had to cease doing business. By providing the means by which individuals could copy music that had been purchased, major record labels were losing substantial profits. Grokster, a privately owned software company based in the West Indies, provided peer-to-peer file sharing from 2001 to 2005 until the US Supreme Court\u2019s decision in <em class=\"im_emphasis\">MGM Studios, Inc. v. Grokster, Ltd.<\/em><span id=\"mayer_1.0-fn32_020\" class=\"im_footnote\"><em class=\"im_emphasis\">MGM Studios, Inc. v. Grokster, Ltd.<\/em>, 545 U.S. 913 (2005).<\/span>\r\n\r\nFor computers with the Microsoft operating system, the Court disallowed the peer-to-peer file sharing, even though Grokster claimed it did not violate any copyright laws because no files passed through its computers. (Grokster had assigned certain user computers as \u201croot supernodes\u201d that acted as music hubs for the company and was not directly involved in controlling any specific music-file downloads.)\r\n\r\nGrokster had argued, based on <em class=\"im_emphasis\">Sony v. Universal Studios<\/em>,\u00a0<span id=\"mayer_1.0-fn32_021\" class=\"im_footnote\"><em class=\"im_emphasis\">Sony v. Universal Studios<\/em>, 464 U.S. 417 (1984).<\/span> that the sale of its copying equipment (like the Betamax videocassette recorders at issue in that case) did not constitute contributory infringement \u201cif the product is widely used for legitimate, unobjectionable purposes.\u201d Plaintiffs successfully argued that the Sony safe-harbor concept requires proof that the noninfringing use is the primary use in terms of the product\u2019s utility.\r\n\r\nThe Digital Millennium Copyright Act (DMCA), passed into law in 1998, implements two 1996 treaties of the World Intellectual Property Organization. It criminalizes production and sale of devices or services intended to get around protective measures that control access to copyrighted works. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. The DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.\r\n<div id=\"mayer_1.0-ch32_s03_s07_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\r\n<h3 class=\"im_title\">Key Takeaway<\/h3>\r\nCopyright is the legal protection given to \u201cauthors\u201d for their \u201cwritings.\u201d It protects ideas in fixed, tangible form, not ideas themselves. Copyright protection can extend as long as 120 years from the date of creation or publication. Expression found in literary works, music, drama, film, art, sculpture, sound recordings, and the like may be copyrighted. The fair use doctrine limits the exclusivity of copyright in cases where scholars, critics, or teachers use only selected portions of the copyrighted material in a way that is unlikely to affect the potential market for or value of the copyrighted work.\r\n\r\n<\/div>\r\n<div class=\"bcc-box bcc-info\">\r\n<h3>Exercises<\/h3>\r\n<section id=\"self-check-questions\">\r\n<ol>\r\n \t<li>Explain how a list could be copyrightable.<\/li>\r\n \t<li>An author wrote a novel, <em class=\"im_emphasis\">Brunch at Bruno\u2019s<\/em>, in 1961. She died in 1989, and her heirs now own the copyright. When do the rights of the heirs come to an end? That is, when does <em class=\"im_emphasis\">Brunch at Bruno\u2019s<\/em> enter the public domain?<\/li>\r\n \t<li>Keith Bradsher writes a series of articles on China for the <em class=\"im_emphasis\">New York Times<\/em> and is paid for doing so. Suppose he wants to leave the employ of the <em class=\"im_emphasis\">Times<\/em> and be a freelance writer. Can he compile his best articles into a book, <em class=\"im_emphasis\">Changing Times in China<\/em>, and publish it without the <em class=\"im_emphasis\">New York Times<\/em>\u2019s permission? Does it matter that he uses the word <em class=\"im_emphasis\">Times<\/em> in his proposed title?<\/li>\r\n \t<li>What kind of file sharing of music is now entirely legal? Shaunese Collins buys a Yonder Mountain String Band CD at a concert at Red Rocks in Morrison, Colorado. With her iMac, she makes a series of CDs for her friends. She does this six times. Has she committed six copyright violations?<\/li>\r\n<\/ol>\r\n<\/section><\/div>\r\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\r\n<\/div>","rendered":"<div class=\"bcc-box bcc-highlight\">\n<h3>Learning Objectives<\/h3>\n<p>By the end of this section, you will be able to:<\/p>\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\n<li>Describe and explain copyrights, how to obtain one, and how they differ from trademarks.<\/li>\n<li>Explain the concept of fair use and describe its limits.<\/li>\n<\/ul>\n<\/div>\n<div id=\"mayer_1.0-ch32_s03_s01\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Definition and Duration<\/h2>\n<p>Copyright is the legal protection given to \u201cauthors\u201d for their \u201cwritings.\u201d Copyright law is federal; like patent law, its source lies in the Constitution. Copyright protects the expression of ideas in some tangible form, but it does not protect the ideas themselves. Under the 1976 Copyright Act as amended, a copyright in any work created after January 1, 1978, begins when the work is fixed in tangible form\u2014for example, when a book is written down or a picture is painted\u2014and generally lasts for the life of the author plus 70 years after his or her death. This is similar to copyright protection in many countries, but in some countries, the length of copyright protection is the life of the author plus 50 years. For copyrights owned by publishing houses, done as works for hire, common copyright expires 95 years from the date of publication or 120 years from the date of creation, whichever is first. For works created before 1978, such as many of Walt Disney\u2019s movies and cartoons, the US Sonny Bono Copyright Term Extension Act of 1998 provided additional protection of up to 95 years from publication date. Thus works created in 1923 by Disney would not enter the public domain until 2019 or after, unless the copyright had expired prior to 1998 or unless the Disney company released the work into the public domain. In general, after expiration of the copyright, the work enters the <span class=\"im_margin_term\"><span class=\"im_glossterm\">public domain<\/span><\/span>.<\/p>\n<p>In 1989, the United States signed the Berne Convention, an international copyright treaty. This law eliminated the need to place the symbol \u00a9 or the word <em class=\"im_emphasis\">Copyright<\/em> or the abbreviation <em class=\"im_emphasis\">Copr.<\/em> on the work itself. Copyrights can be registered with the US Copyright Office in Washington, DC. Under the Berne Convention every member country must recognize the copyrights of authors who are citizen of other member countries. IF a citizen of a country that has not signed the convention first published a book in a country that has signed, all other countries that have signed the convention must recognize the authors copyright.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch32_s03_s02\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Protected Expression<\/h2>\n<p>The Copyright Act protects a variety of \u201cwritings,\u201d some of which may not seem written at all. These include literary works (books, newspapers, and magazines), music, drama, choreography, films, art, sculpture, and sound recordings. Since copyright covers the expression and not the material or physical object, a book may be copyrighted whether it is on paper, microfilm, tape, or computer disk.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch32_s03_s03\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Rights Protected by the Copyright Act<\/h2>\n<div id=\"mayer_1.0-ch32_s03_s03_s01\" class=\"im_section\">\n<h3 class=\"im_title im_editable im_block\">Preventing Copying<\/h3>\n<p>A copyright gives its holder the right to prevent others from copying his or her work. The copyright holder has the exclusive right to reproduce the work in any medium (paper, film, sound recording), to perform it (e.g., in the case of a play), or to display it (a painting or film). A copyright also gives its holder the exclusive right to prepare derivative works based on the copyrighted work. Thus a playwright could not adapt to the stage a novelist\u2019s book without the latter\u2019s permission.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch32_s03_s03_s02\" class=\"im_section\">\n<h3 class=\"im_title im_editable im_block\">Fair Use<\/h3>\n<p>One major exception to the exclusivity of copyrights is the <span class=\"im_margin_term\"><span class=\"im_glossterm\">fair use doctrine<\/span><\/span>. Section 107 of the Copyright Act provides as follows:<\/p>\n<blockquote><p>Fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by section 106 of the copyright, 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\u2013<\/p>\n<p>(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;<\/p>\n<p>(2) the nature of the copyrighted work;<\/p>\n<p>(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and<\/p>\n<p>(4) the effect of the use upon the potential market for or value of the copyrighted work.<span id=\"mayer_1.0-fn32_012\" class=\"im_footnote\">17 United States Code, Section 107.<\/span><\/p><\/blockquote>\n<p>These are broad guidelines. Accordingly, any copying could be infringement, and fair use could become a question of fact on a case-by-case basis. In determining fair use, however, courts have often considered the fourth factor (effect of the use upon the potential market for the copyrighted work) to be the most important.<\/p>\n<p>Clear examples of fair use would be when book reviewers or writers quote passages from copyrighted books. Without fair use, most writing would be useless because it could not readily be discussed. But the doctrine of fair use grew more troublesome with the advent of plain-paper copiers and is now even more troublesome with electronic versions of copyrighted materials that are easily copied and distributed. The 1976 act took note of the new copier technology, listing \u201cteaching (including multiple copies for classroom use)\u201d as one application of fair use. The Copyright Office follows guidelines specifying just how far the copying may go\u2014for example, multiple copies of certain works may be made for classroom use, but copies may not be used to substitute for copyrighted anthologies.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch32_s03_s03_s03\" class=\"im_section\">\n<h3 class=\"im_title im_editable im_block\">Infringement<\/h3>\n<p>Verbatim use of a copyrighted work is easily provable. The more difficult question arises when the copyrighted work is altered in some way. As in patent law, the standard is one of substantial similarity.<\/p>\n<\/div>\n<\/div>\n<div id=\"mayer_1.0-ch32_s03_s04\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Copyrightability Standards<\/h2>\n<p>To be subject to copyright, the writing must be \u201cfixed\u201d in some \u201ctangible medium of expression.\u201d A novelist who composes a chapter of her next book in her mind and tells it to a friend before putting it on paper could not stop the friend from rushing home, writing it down, and selling it (at least the federal copyright law would offer no protection; some states might independently offer a legal remedy, however).<\/p>\n<p>The work also must be creative, at least to a minimal degree. Words and phrases, such as names, titles, and slogans, are not copyrightable; nor are symbols or designs familiar to the public. But an author who contributes her own creativity\u2014like taking a photograph of nature\u2014may copyright the resulting work, even if the basic elements of the composition were not of her making.<\/p>\n<p>Finally, the work must be \u201coriginal,\u201d which means simply that it must have originated with the author. The law does not require that it be novel or unique. This requirement was summarized pithily by Judge Learned Hand: \u201cIf by some magic a man who had never known it were to compose anew Keats\u2019s Ode on a Grecian Urn, he would be an author, and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats\u2019s.\u201d<span id=\"mayer_1.0-fn32_013\" class=\"im_footnote\"><em class=\"im_emphasis\">Sheldon v. Metro-Goldwyn Pictures Corp.<\/em>, 81 F.2d 49 (2d Cir. 1936).<\/span> Sometimes the claim is made that a composer, for example, just happened to compose a tune identical or strikingly similar to a copyrighted song; rather than assume the unlikely coincidence that Judge Hand hypothesized, the courts will look for evidence that the alleged copier had access to the copyrighted song. If he did\u2014for example, the song was frequently played on the air\u2014he cannot defend the copying with the claim that it was unconscious, because the work would not then have been original.<\/p>\n<p>Section 102 of the Copyright Act excludes copyright protection for any \u201cidea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied.\u201d<span id=\"mayer_1.0-fn32_014\" class=\"im_footnote\">17 United States Code, Section 102.<\/span><\/p>\n<p>Einstein copyrighted books and monographs he wrote on the theory of relativity, but he could not copyright the famous formula <em class=\"im_emphasis\">E = mc<\/em><sup class=\"im_superscript\">2<\/sup>, nor could he prevent others from writing about the theory. But he could protect the particular way in which his ideas were expressed. In general, facts widely known by the public are not copyrightable, and mathematical calculations are not copyrightable. Compilations of facts may be copyrightable, if the way that they are coordinated or arranged results in a work that shows some originality. For example, compiled information about yachts listed for sale may qualify for copyright protection.<span id=\"mayer_1.0-fn32_015\" class=\"im_footnote\"><em class=\"im_emphasis\">BUC International Corp. v. International Yacht Council, Ltd.<\/em>, 489 F.3d 1129 (11th Cir. 2007).<\/span><\/p>\n<p>One of the most troublesome recent questions concerning expression versus ideas is whether a computer program may be copyrighted. After some years of uncertainty, the courts have accepted the copyrightability of computer programs.<span id=\"mayer_1.0-fn32_016\" class=\"im_footnote\"><em class=\"im_emphasis\">Apple Computer, Inc. v. Franklin Computer Corp.<\/em>, 714 F.2d 1240 (3d Cir. 1983).<\/span> Now the courts are wrestling with the more difficult question of the scope of protection: what constitutes an \u201cidea\u201d and what constitutes its mere \u201cexpression\u201d in a program.<\/p>\n<p>How far the copyright law will protect particular software products is a hotly debated topic, sparked by a federal district court\u2019s ruling in 1990 that the \u201clook and feel\u201d of Lotus 1-2-3\u2019s menu system is copyrightable and was in fact infringed by Paperback Software\u2019s VP-Planner, a competing spreadsheet.<span id=\"mayer_1.0-fn32_017\" class=\"im_footnote\"><em class=\"im_emphasis\">Lotus Development Corp. v. Paperback Software International<\/em>, 740 F.Supp. 37 (D. Mass. 1990).<\/span> The case has led some analysts to \u201cfear that legal code, rather than software code, is emerging as the factor that will determine which companies and products will dominate the 1990s.\u201d<span id=\"mayer_1.0-fn32_018\" class=\"im_footnote\">Peter H. Lewis, \u201cWhen Computing Power Is Generated by the Lawyers,\u201d <em class=\"im_emphasis\">New York Times<\/em>, July 22 1990.<\/span><\/p>\n<\/div>\n<div id=\"mayer_1.0-ch32_s03_s05\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Who May Obtain a Copyright?<\/h2>\n<p>With one important exception, only the author may hold the initial copyright, although the author may assign it or license any one or more of the rights conveyed by the copyright. This is a simple principle when the author has written a book or painted a picture. But the law is unclear in the case of a motion picture or a sound recording. Is the author the script writer, the producer, the performer, the director, the engineer, or someone else? As a practical matter, all parties involved spell out their rights by contract.<\/p>\n<p>The exception, which frequently covers the difficulties just enumerated, is for works for hire. Any person employed to write\u2014a journalist or an advertising jingle writer, for example\u2014is not the \u201cauthor.\u201d For purposes of the statute, the employer is the author and may take out the copyright. When the employee is in fact an \u201cindependent contractor\u201d and the work in question involves any one of nine types (book, movies, etc.) spelled out in the Copyright Act, the employer and the creator must spell out their entitlement to the copyright in a written agreement.<span id=\"mayer_1.0-fn32_019\" class=\"im_footnote\"><em class=\"im_emphasis\">Community for Creative Non-Violence v. Reid<\/em>, 109 S.Ct. 2166 (1989).<\/span><\/p>\n<\/div>\n<div id=\"mayer_1.0-ch32_s03_s06\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Obtaining a Copyright<\/h2>\n<p>Until 1978, a work could not be copyrighted unless it was registered in the Copyright Office or was published and unless each copy of the work carried a copyright notice, consisting of the word <em class=\"im_emphasis\">Copyright<\/em>, the abbreviation <em class=\"im_emphasis\">Copr.<\/em>, or the common symbol \u00a9, together with the date of first publication and the name of the copyright owner. Under the 1976 act, copyright became automatic whenever the work was fixed in a tangible medium of expression (e.g., words on paper, images on film or videotape, sound on tape or compact disc), even if the work remained unpublished or undistributed. However, to retain copyright protection, the notice had to be affixed once the work was \u201cpublished\u201d and copies circulated to the public. After the United States entered the Berne Convention, an international treaty governing copyrights, Congress enacted the Berne Implementation Act, declaring that, effective in 1989, notice, even after publication, was no longer required.<\/p>\n<p>Notice does, however, confer certain benefits. In the absence of notice, a copyright holder loses the right to receive statutory damages (an amount stated in the Copyright Act and not required to be proved) if someone infringes the work. Also, although it is no longer required, an application and two copies of the work (for deposit in the Library of Congress) filed with the Copyright Office, in Washington, DC, will enable the copyright holder to file suit should the copyright be infringed. Unlike patent registration, which requires elaborate searching of Patent and Trademark Office (PTO) records, copyright registration does not require a reading of the work to determine whether it is an original creation or an infringement of someone else\u2019s prior work. But copyright registration does not immunize the holder from an infringement suit. If a second work has been unlawfully copied from an earlier work, the second author\u2019s copyright will not bar the infringed author from collecting damages and obtaining an injunction.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch32_s03_s07\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Computer Downloads and the Digital Millennium Copyright Act<\/h2>\n<p>The ubiquity of the Internet and the availability of personal computers with large capacities have greatly impacted the music business. Sharing of music files took off in the late 1990s with Napster, which lost a legal battle on copyright and had to cease doing business. By providing the means by which individuals could copy music that had been purchased, major record labels were losing substantial profits. Grokster, a privately owned software company based in the West Indies, provided peer-to-peer file sharing from 2001 to 2005 until the US Supreme Court\u2019s decision in <em class=\"im_emphasis\">MGM Studios, Inc. v. Grokster, Ltd.<\/em><span id=\"mayer_1.0-fn32_020\" class=\"im_footnote\"><em class=\"im_emphasis\">MGM Studios, Inc. v. Grokster, Ltd.<\/em>, 545 U.S. 913 (2005).<\/span><\/p>\n<p>For computers with the Microsoft operating system, the Court disallowed the peer-to-peer file sharing, even though Grokster claimed it did not violate any copyright laws because no files passed through its computers. (Grokster had assigned certain user computers as \u201croot supernodes\u201d that acted as music hubs for the company and was not directly involved in controlling any specific music-file downloads.)<\/p>\n<p>Grokster had argued, based on <em class=\"im_emphasis\">Sony v. Universal Studios<\/em>,\u00a0<span id=\"mayer_1.0-fn32_021\" class=\"im_footnote\"><em class=\"im_emphasis\">Sony v. Universal Studios<\/em>, 464 U.S. 417 (1984).<\/span> that the sale of its copying equipment (like the Betamax videocassette recorders at issue in that case) did not constitute contributory infringement \u201cif the product is widely used for legitimate, unobjectionable purposes.\u201d Plaintiffs successfully argued that the Sony safe-harbor concept requires proof that the noninfringing use is the primary use in terms of the product\u2019s utility.<\/p>\n<p>The Digital Millennium Copyright Act (DMCA), passed into law in 1998, implements two 1996 treaties of the World Intellectual Property Organization. It criminalizes production and sale of devices or services intended to get around protective measures that control access to copyrighted works. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. The DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.<\/p>\n<div id=\"mayer_1.0-ch32_s03_s07_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\n<h3 class=\"im_title\">Key Takeaway<\/h3>\n<p>Copyright is the legal protection given to \u201cauthors\u201d for their \u201cwritings.\u201d It protects ideas in fixed, tangible form, not ideas themselves. Copyright protection can extend as long as 120 years from the date of creation or publication. Expression found in literary works, music, drama, film, art, sculpture, sound recordings, and the like may be copyrighted. The fair use doctrine limits the exclusivity of copyright in cases where scholars, critics, or teachers use only selected portions of the copyrighted material in a way that is unlikely to affect the potential market for or value of the copyrighted work.<\/p>\n<\/div>\n<div class=\"bcc-box bcc-info\">\n<h3>Exercises<\/h3>\n<section id=\"self-check-questions\">\n<ol>\n<li>Explain how a list could be copyrightable.<\/li>\n<li>An author wrote a novel, <em class=\"im_emphasis\">Brunch at Bruno\u2019s<\/em>, in 1961. She died in 1989, and her heirs now own the copyright. When do the rights of the heirs come to an end? That is, when does <em class=\"im_emphasis\">Brunch at Bruno\u2019s<\/em> enter the public domain?<\/li>\n<li>Keith Bradsher writes a series of articles on China for the <em class=\"im_emphasis\">New York Times<\/em> and is paid for doing so. Suppose he wants to leave the employ of the <em class=\"im_emphasis\">Times<\/em> and be a freelance writer. Can he compile his best articles into a book, <em class=\"im_emphasis\">Changing Times in China<\/em>, and publish it without the <em class=\"im_emphasis\">New York Times<\/em>\u2019s permission? Does it matter that he uses the word <em class=\"im_emphasis\">Times<\/em> in his proposed title?<\/li>\n<li>What kind of file sharing of music is now entirely legal? Shaunese Collins buys a Yonder Mountain String Band CD at a concert at Red Rocks in Morrison, Colorado. With her iMac, she makes a series of CDs for her friends. She does this six times. Has she committed six copyright violations?<\/li>\n<\/ol>\n<\/section>\n<\/div>\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\n<\/div>\n\n\t\t\t <section class=\"citations-section\" role=\"contentinfo\">\n\t\t\t <h3>Candela Citations<\/h3>\n\t\t\t\t\t <div>\n\t\t\t\t\t\t <div id=\"citation-list-249\">\n\t\t\t\t\t\t\t <div class=\"licensing\"><div class=\"license-attribution-dropdown-subheading\">CC licensed content, Shared previously<\/div><ul class=\"citation-list\"><li>Business and the Legal Environment. <strong>Authored by<\/strong>: Anonymous. <strong>Provided by<\/strong>: Anonymous. <strong>Located at<\/strong>: <a target=\"_blank\" href=\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\">http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/<\/a>. <strong>License<\/strong>: <em><a target=\"_blank\" rel=\"license\" href=\"https:\/\/creativecommons.org\/licenses\/by-nc-sa\/4.0\/\">CC BY-NC-SA: Attribution-NonCommercial-ShareAlike<\/a><\/em><\/li><\/ul><\/div>\n\t\t\t\t\t\t <\/div>\n\t\t\t\t\t <\/div>\n\t\t\t <\/section>","protected":false},"author":5797,"menu_order":204,"template":"","meta":{"_candela_citation":"[{\"type\":\"cc\",\"description\":\"Business and the Legal Environment\",\"author\":\"Anonymous\",\"organization\":\"Anonymous\",\"url\":\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\",\"project\":\"\",\"license\":\"cc-by-nc-sa\",\"license_terms\":\"\"}]","CANDELA_OUTCOMES_GUID":"","pb_show_title":"on","pb_short_title":"","pb_subtitle":"","pb_authors":[],"pb_section_license":""},"chapter-type":[],"contributor":[],"license":[],"class_list":["post-249","chapter","type-chapter","status-publish","hentry"],"part":750,"_links":{"self":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/249","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters"}],"about":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/types\/chapter"}],"author":[{"embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/users\/5797"}],"version-history":[{"count":7,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/249\/revisions"}],"predecessor-version":[{"id":1427,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/249\/revisions\/1427"}],"part":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/parts\/750"}],"metadata":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/249\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/media?parent=249"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapter-type?post=249"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/contributor?post=249"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/license?post=249"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}