Internet Law Update

Pennsylvania Bar Instititute

April 1, 1998 (Philadelphia) April 9, 1998 (Pittsburgh)

An Introduction to Copyright Law

Prof. David G. Post

Temple University Law School

&

Thomas R. Trempus, Esq.

Aluminum Company of America


Conclusion

An Introduction to Copyright Law

This paper introduces several fundamental concepts of copyright law and discusses their relevance to digitized works as well as the linking to and the framing of digitized works. Digital works of authorship are considered within the broad concept of multimedia, which is generally understood to mean the storage of digital information and the presentation of digital information consisting of a combination of sound, moving images, still images, and text. The body of copyright law, which is ex tensive and detailed, is found in federal statutes. An outstanding source for information on copyright law, as well as its application, is the multi-volume treatise, NIMMER ON COPYRIGHT.

Authors are under the constant challenge of protecting and controlling the rights to their works against the onslaught of evolving technologies. New technologies have made works of authorship ever more accessible to the public while at the same time facilitating the unauthorized coping and distribution of their works. This has been the lot of authors since the invention of the printing press in 1451. Laws allocating the economic interest represented by an author's work followed shortly the reafter. Typically, the laws provided more protection to the publisher of the author's work, the to the author of the work. As new technologies have become available; the Daguerreotype in 1837, the phonograph in 1878, the player piano in 1850, Xerography and magnetic tape recordings in the 1930's, affordable video tape recorders in the 1970's, personal computers and digital recordings in the 1980's, and easy access to the Internet in the 1990's, to name just a few, copyright law has struggled to balance t he rights of authors to their original works and the access of the public to the information contained in the works.

The Internet that is often referred to as the "National Information Highway" or simply, the "World Wide Web" permits worldwide communication with a capability for the instant transfer of information. The World Wide Web is a "hypertext" medium, allowing website creators to easily insert "jump links" to any other pages on the system. Indeed, this hyperlinking capability may be the Web's most fundamental and revolutionary feature, as the aggregate of mi llions of these individual hyperlinks creates a truly global interconnected web of information. Once a newly created works of authorship is made available on the Internet, the author's control of that work is at best problematic. Contrary to the costs ass ociated with the production and distribution of works of authorship by the traditional printing and publishing industries, the Internet makes possible the distribution, reproduction, linking, framing, uploading and downloading of sound, video, graphics, a nd text to relatively inexpensive computers and even televisions that have been equipped with an appropriate interface. As more and more activity migrates to cyberspace (and as those activities come to have more and more financial consequences), we will b e presented with a host of new legal questions and an increasingly uncomfortable fit between our pre-existing legal doctrine and new activities. Creators, authors, and publishers of digital information now find themselves in a poorly charted Cyberspace th at knows no national boundaries.

What is a Copyright?

Copyright is a form of intellectual property. Intellectual property includes intangible assets such as works of authorship, ideas, and business goodwill. Intellectual property laws protect these intangible assets. Protection is secured thr ough four separate bodies of law, patent law, trade secret law, trademark law, and copyright law. Patent law protects new, useful, and nonobvious inventions. Trade secret law protects any formula, pattern, practice, device or compilation of information us ed in business that provides an advantage over competitors who do not know or use it. Trademark law protects words and symbols that are used in connection with products and services and are tangible representations of business goodwill associated with tho se products and services. Finally, copyright law protects the expressions contained in original works of authorship.

The Source of Copyright Protection

The United States Constitution grants Congress the power "[t]o Promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings."

The Copyright Revision Act of 1976 was the first major revision of United States copyright law since 1909. Before it became effective on January 1, 1978, both federal and common law copyright protection existed for original works of author ship. The Copyright Revision Act preempted common law copyright protection by providing copyright protection for both published and unpublished works as long as the work is fixed in tangible form. Previously, statutory protection was available only to aut hors who registered their works with the Copyright Office. The Copyright Office, a branch of the Library of Congress, still administers federal copyright registration.

The Berne Convention Implementation Act amended the Copyright Revision Act to harmonize several aspects of U.S. copyright law with the Berne Convention. By becoming a member of the Berne Convention, the U.S. obtained immediate copyright re lations for the first time with 24 nations. The U.S. also endorsed the importance of protecting intellectual property through adherence to this international treaty.

The Copyright Act of 1976 has been amended numerous times to address, for example, the rights of visual artists, the protection of architectural work, and computer software rental issues. Visual artists now have certain limited "moral rights" in their works. Architectural works have now been given clear protection under copyright law. Moreover, it is now a violation of copyright law for an owner of a particular copy of software to rent, lease, or lend that copy, for direct or ind irect commercial advantage, without the copyright owner's permission.

What Does Copyright Law Protect?

Federal copyright law provides that copyright protection subsists in original works of authorship. This means that a copyright protects the expression of an idea. Any expression or work of authorship is automatical ly and instantly protected once it is fixed in any tangible medium, such as on paper, video, audio, disk, tape, computer memory, etc. Examples of protectable works include books, advertisements, movies, educational materials, computer software, and even s tuffed animals and dolls. What copyright law does not protect is the idea embodied in the expression. Unless the idea is protected by another form of intellectual property right, such as a patent or trade secret, the public is free to use it.

It is often difficult to distinguish between the expression of the idea, which may not be infringed or copied without authorization, and the idea, which is available to all. For example, copyright in a photograph of an object protec ts only that particular image of the object as captured in that single photograph. Copyright does not keep the public from making its own image. The idea of what to make the subject of a photograph is not protected by copyright. Thus, although the public may make its own version of the image of the photographed object, it may not copy the photograph itself, such as by photocopying or the like. (This assumes that the object being photographed is not itself the subject of a copyright.)

Likewise, writing the instructions for a manufacturing process or a manual for the operation of a machine protects only that particular "expression" of the instructions or manual. Copyright will not protect against another's use of the process or machine. Everyone is free to write their own version of the process instructions or an operations manual as long as they do not copy the original instructions or manual.

It is not unreasonable to assume that many of the works that are available in a multimedia environment or from source works for the development of a multimedia environment are protected under federal copyright law.

Copyrightable Subject Matter

Copyright protection exists in (1) original (2) works of authorship (3) 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 w ith the aid of a machine or a device.

1. "Original" -- The originality requirement of copyright law means merely that the work was independently created by the author and possesses some minimal degree of creativity. There is no requirement that the work meets certain creative standards. Rather, the level of creativity required is very low and a work satisfies the originality requirement as long as it possesses some creative spark, no matter how crude, humble, or obvious. The United States Supreme Court has sta ted that, "the vast majority of works make the grade quite easily, as they possess some creative spark."

2. "Works of Authorship" -- The text of the statute states that works of authorship include the following categories:

The Creation of a Work of Authorship and Copyright Ownership

The creation of a work of authorship does not necessarily guarantee ownership of the copyright. Generally, the ownership of the copyright in a work that is protected under United States copyright law vests initially in the author or author s of a work. The authors of a joint work are co-owners of the copyright in the work. However, in some instances, the creator or creators of a work are not considered under the law to be the "author" of the work and therefore, not the initial own er of the copyright. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of copyright law. Unless the parties have expressly agreed otherwise in a written instrument signed by them, the employer owns all of the rights comprised in the copyright of a work prepared by an employee in the course of employment.

"Work for hire" is a defined term in the copyright statute. Two categories of work for hire are codified: (1) a work prepared by an employee within the scope of his or her employment, and (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work for hire. Of interest is the definition of "audiovisual work" in the creation of digital information within the concept of a work for hire. The statute defines audiovisual work as works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with acc ompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

Ownership of the Copyright and Ownership of Material Object

The statute clearly distinguishes between the ownership of copyright and the ownership of the material object in which the copyrighted work of authorship is embodied. For example, you may purchase a copy of a book and you own that physical copy, being free to lend, sell, or destroy it. You may not, however, engage in any of the exclusive rights of the owner of the copyright, such as making a complete copy of the book or making a movie from it. Ownership of a copyright, or any of the exclus ive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not itself convey any rig hts in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object. What you as the owne r of the book may take from or do with the work of authorship embodied in the book will ultimately be defined within the amorphous zone of protection provided by the doctrine of fair use. This doctrine is discussed below.

The Term of Copyright Protection

Once a work is fixed in a tangible medium of expression, a minimum level of protection is immediate and automatic. There is no need to take any formal action to protect the work. A copyright held by an individual author has a term consisti ng of the life of the author plus 50 years. In the case of a joint work by two or more authors, the term consists of the life of the author who last dies plus 50 years. The copyright statute defines a second type of work as a "work for hire." Fo r example, copyrightable material created by an individual in the course of employment is considered to be a work for hire. Ownership of the copyright vests automatically in the employer. The copyright in a work for hire has a term of 75 years from the da te of publication or 100 years from its creation, whichever expires first. Additionally, certain other works, which are identified in the statute as being specially ordered or commissioned, are also works for hire. The work for hire doctrine does not exte nd to all consultants, e.g., a consultant writing software code. Accordingly, in certain circumstances consultants must be contractually obliged to assign the ownership of the copyright in any work that they create in their capacity as a consultant.

An objective of copyright law is to secure for limited times to authors the exclusive rights to their works. The result of this objective is that every work will eventually enter into the public domain where it will be freely accessible to all. Depending upon both the date and place that a work was first published, unless certain statutory requirements were complied with, no copyright may have ever existed. Prior to March 1, 1989, United States copyright law required that published works h ad to bear a correct copyright notice. An author's failure to comply with the notice requirements could cause the work to enter into the public domain. Works created on or after March 1, 1989, do not require a formal notice of copyright, e.g., the word &q uot;Copyright," the year of first publication, and the name of the owner of the copyright. Additionally, it is important to note that the time frames of protection described above apply to works created since January 1, 1978. Works create d before that date are subject to a variety of considerations in determining whether or not they are protected by copyright.

The Use of a Copyright Notice and Copyright Registration

Under United States law prior to 1989, a formal notice of claim to copyright was mandatory. A proper copyright notice consists of the word "Copyright" or the symbol , the name of the author or owner of the copyright, and th e date of publication or creation. However, in 1989, the United States began to follow much of the rest of the world in eliminating formal notice requirements. Yet it remains a prudent practice to give formal notice of a claim of copyright in order to pre vent an infringer from raising the defense of innocent infringement.

Although copyrightable works are automatically protected upon creation, the copyright owner who is a U.S. national may bring an infringement action only if the work has been registered in the United States Copyright Office.

Copyright Secures Exclusive Rights

The owner of a copyright has certain exclusive rights:

In addition to determining if the appropriate scope of rights is secured under the terms and conditions of a license, both the copyright owner (licensor) and the licensee must be certain that the licensor possess the right to grant the scope of rights needed. Have those rights already been the subject of a license grant to another?

The copyright statute addresses the transfer of ownership of copyright. The ownership may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal p roperty by the application of laws of intestate succession. Any of the exclusive rights comprised in a copyright, including the subdivision of any of these rights, may be transferred in the same manner as just described and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright holder under the statute. The statute also provides details on the recordation of copyright transfers and the terminat ion of transfers and licenses granted by the author.

Violation of the Exclusive Rights

Anyone who violates any of these exclusive rights has infringed the copyright. A copyright protects the author against others who copy the work without permission, but it does not protect against someone who, without knowledge of the autho r's work or access to it, independently creates an identical or similar work.

The advent of photocopying technology, video tape recorders, and personal computers presented the opportunity for copyright infringement to become a cottage industry. Before the wide spread, low cost availability of such copying technology , infringement was often an expensive undertaking that required commercial equipment such as printing presses. Talent, skill, and money are not prerequisites to infringement. Now, infringement of a complex software program that may have taken years to dev elop can be accomplished with a simple DOS command: copy *.*.

Moreover, the Internet knows no national boundaries and with copyright law based in national law, what is permitted use of a copyrighted work in one nation may be an act of copyright infringement in another nation. Under United States law, not every act of copying constitutes a violation of the exclusive rights and therefore an act of copyright infringement. The fair use doctrine authorizes certain uses of a copyrighted work without the prior permission of the copyright holder. This doctri ne is entirely equitable and is so flexible as virtually to defy definition. Nonetheless, it will be discussed below.

On the Internet, the question of what actually constitutes an act of infringement is yet to be fully answered. In fact, it is not likely to be answered in such a way as to provide comfort and guidance to either the owner of the copyright o r to the public. Numerous law suits seeking to establish electronic rights have been filed. Issues range from alleged damages for the unauthorized reproduction and distribution of copyrighted musical compositions through user postings on on-line bulletin boards, to the unauthorized digitized transmission of print media. Additionally, some digital information that is in the public domain and therefore free to the public to use is marked with a copyright notice. A false copyright notices creates confusion f or the public and a chilling effect on the free access to and use of information.

Editing, cropping, morphing, and other transformations of underlying content are a common practice in multimedia productions. Among the bundle of exclusive rights is the right to create a derivative work. A derivative work is based upon on e or more pre-existing works. It is fair to assume that much of the information available on the Internet is comprised of multiple works in different media which are re-constituted into a new creation or ultimate work that may or may not fall within copyright's definition of a derivative work. An interesting concept within copyright law is the distinction between an ultimate work that may not be a derivative work and the numerous interim reproductions created in the course of the development o f the ultimate work. Copyright law permits an author access to the copyright protected expression of another author's work when creating a new work so long as the new work is not substantially similar to the earlier work. Under more traditional forms of t echnology (read that to mean prior to the personal computer and the Internet), reproduction of the earlier work often was not necessary in order to create the new, dissimilar work because the earlier work existed in the memory of the author or in an autho rized copy that did not lend itself to change.

The tension between what the public is free to use and what the owner of a copyright may control is resolved by copyright law through the limited term of copyright protection granted and the doctrine of fair use. As technology has made cop ying a work easier, technology is also presenting the means to remove from the public access to works which copyright law might not otherwise proscribe. Copyright Management Systems (CMS) provide one such technological solution to controlling access to di gital information. CMS is a vehicle for the enforcement of a copyright owner's exclusive rights. However, CMS does not apply fair use principles to the public's access to a digital work, thus potentially excluding all permitted and fair uses. Additionally , Copyright Management Systems presents what some have called a remedial overkill that sanctions an Orwellian supervision of the public's use of digital information.

Limitations on Exclusive Rights: Fair Use

Not every act of copying constitutes copyright infringement. The doctrine of "fair use" permits certain acts of copying. Under the doctrine, criticism, news reporting, teaching, and scholarly comment are all fair uses of copyrigh ted works. Appeals focusing on the defense of fair use to a claim of copyright infringement have reached The Supreme Court of the United States three times since 1984. In each of these cases, the holding of the lower court was overturned. It i s not unfair to say that fair use is the most troublesome doctrine in the whole of copyright law.

The copyright statute which has incorporated this doctrine states that in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

The Link to Liability: Copyright infringement, or permissible fair use?

The World Wide Web is a "hypertext" medium, allowing web site creators to easily insert "jump links" to any other pages on the Internet. It was surely inevitable that disputes would arise about the permissible scope of this activity. In fact, people who have objected to finding a link to their web page on some website they deem unsavory for one reason or another -- in one instance, a woman who placed a picture of her recently deceased daughter on a web page in honor of her memory, found it linked from a site labeled "Babes on the Net." Many of these disputes have been resolved informally. Nevertheless, eventually, as more money became involved, some disputants would turn to more expensive forms of dispute reso lution (i.e., to litigation).

And sure enough, hyperlinking is at the heart of two recent lawsuits involving some pretty high-profile players. In one, a group of news organizations -- including CNN, Reuters, Time, and the Wall Street Journal -- has sued an Internet ope ration known as TotalNews. TotalNews.com is a website that brings together links to a variety of sources of news on the Web. Thus, by going to the TotalNews site, a user can find a page with a set of links to other websites providing political news (C-Span, The Economist, etc.), sports news (ESPNet, Fox Sports, etc.), and the like. Plaintiffs are objecting to having their web sites included on that set of links.

The defendant in the second suit is none other than Microsoft Corporation, which (among other things) runs ,Seattle.Sidewalk.Com a city guide with information about upcoming events in the Seattle area. For those events that require tickets, Seattle.sidewalk informs you that you may be able to purchase tickets through Ticketmaster (and it both provides some information about Ticketmaster's operations and a link to the Ticketm aster website). Ticketmaster, like the news organizations involved in the TotalNews dispute, has filed suit in federal district court to try to prevent this.

Now, why would CNN, or Time, or Ticketmaster, object to a link to their pages? Isn't the whole point of having a web page to attract users? These hyperlinks are like referrals -- and one rarely hears of one party suing another for sending customers to their store. What's going on here?

In a word -- advertising (and advertising dollars). In both suits, plaintiffs are asserting that the way that defendants link to their page deprives the plaintiffs of advertising revenue that is properly theirs. TotalNews, for example, sur rounds its web page with a "frame" -- a border that appears on the screen that contains advertising sold by TotalNews (or other messages that TotalNews wants you to see). Things get interesting now: if, say, you click on the link to ABC's web pa ge, you will indeed see the ABC page -- but the TotalNews border continues to sit there, showing you the advertising that TotalNews has sold (which squeezes any advertising that ABC may contain into a smaller area on your screen). Similarly, Ticketmaster asserts that Microsoft, by linking to the Ticketmaster website, "has gained revenue from advertising made a part of Microsoft's website, depriving Ticketmaster of favorable advertising business" and that its actions constitute "electronic p iracy."

These cases thus present the rather intriguing question: Does the law grant website operators any control over the manner in which individual hyperlinks to their site can be constructed? As the Ticketmaster and TotalNews cases (and the oth ers that no doubt will follow) begin their journey through the legal system, two things are noteworthy at the outset.

First is the way in which this question illuminates the way in which Internet legal questions are (and are not) "new." If you think about it a bit, the real world is full of hyperlinks; a footnote in an article, or an entry in a book index, is a kind of hyperlink, as is a business' telephone number listed at the bottom of an advertisement. The telephone book itself is nothing more than a collection of hyperlinks, and even a familiar commercial logo -- the golden arches, for examp le -- functions as a kind of "hyperlink" to a "database" of information about specific companies that consumers carry around with them in their heads.

Precisely because hyperlinking (of a sort) appears as a (small) part of so many different activities, there's lots of law scattered about the legal landscape governing hyperlinking activity. Many legal doctrines -- trademark law, copyright law, unfair competition, privacy, misrepresentation -- touch upon different aspects of the question regarding the extent to which hyperlinking-type activity is, or is not, permissible. However, there has never been a need to gather it together into a coh erent theory of hyperlinking or a coherent legal doctrine neatly labeled "The Permissible Scope of Hyperlinking." But in the face of a medium whose very existence and viability is defined by its hyperlinking capabilities, courts will have to do just that, drawing these disparate strands and fragments together into some sort of coherent whole. Litigation, of course, is an imperfect vehicle for constructing coherent doctrine. Plaintiffs will undoubtedly throw in as many different claims from as ma ny of these pre-existing legal pigeonholes as they can, from relatively well-defined trademark infringement claims to the more "flexible" doctrines like commercial misappropriation and unfair competition, and see what sticks. But slowly, over th e course of many such suits and court decisions, a sensible framework may indeed emerge.

But slowly is the operative word. It's important to note that these two lawsuits have something else in common: both involve problems for which there are relatively simple technology 'fixes.' Ticketmaster can easily program its site to pro hibit access to anyone coming in from Seattle.sidewalk.com, and, similarly, any news organizations can insert a few lines of code in its website program to prevent TotalNews from retaining its frames around the site. (Some, in fact, have already done so; if you're interested, go to TotalNews and explore the link to the New York Times website and -- presto! -- the TotalNews frame disappears). So you might ask yourself: if your client wants to protect its website against this framing activity, will it turn to its techies, or its lawyers, to be the first line of defense?

So while the legal system plods on, we're probably going to see a kind of technological "arms race" involving these (and perhaps most) Internet property disputes. Technology can taketh away what it giveth; TotalNews will undoubte dly come up with a few lines of code of its own to defeat the Times' efforts, the Times will then respond with another trick, and on and on it will go. And this will all happen on "Internet time" -- the time frame of response and counter-respons e will be compressed and foreshortened, and independent of the comparatively glacial pace of legal change. By the time the courts get around to providing an authoritative determination regarding the "right" of website owners to control linking t o their sites, the technology of linking will probably look nothing like what we see today, and we may have long forgotten the conduct that started these disputes. The role of the courtroom as a place where rules of conduct are constructed may be substant ially undermined in this context. Military officers are often derided for planning to fight the previous war ù do we lawyers face a similar fate?

What are the Moral Rights of the Author?

The U.S. copyright statute provides the creators of "visual art" with some limited protection against unauthorized modifications to their works that will prejudice the creator's honor or reputation. This provision is a rather limited recognition of what is known as "moral rights". The doctrine of moral rights protects a creator's personal, as opposed to economic, interests in the work of authorship.

In contrast to the United States, many European and Third World nations have well-developed moral rights doctrines that fully embrace the Berne Convention for the Protection of Literary and Artistic Works. Berne recognizes that independent of the author's economic rights, and even after the transfer of these rights, the author has the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the wo rk, which would be prejudicial to the author's honor or reputation.

Moral rights encompasses three major components.

The meager moral rights recognized under U.S. copyright law apply only to a limited class of artistic works. For example, a work of visual art is defined as a painting, drawing, or sculpture that is limited to 200 copies or fewer. Moreover, protected works of visual art must be signed by the author and consecutively numbered. In contrast to the rather short list of protected works, the definition of visual art specifically excludes, for example, posters, models, motion pictures, b ooks, periodicals, electronic publications, and newspapers.

Conclusion

This paper has endeavored to present an introduction to some of the fundamental uses and applications of copyright law and its principles to works of authorship in digital form. The creators of works of authorship and the drafters of our l aws face the never ending challenge presented by the impact of technology on both. By necessity, this paper has in places offered rather brief comments on rather complex areas of the law. Nevertheless, I hope that that the reader's interest is captured by this exciting interface of creativity, law, and technology. In many ways, the exclusive rights of authors in their works stand opposed to the rights of the public to make unauthorized, but legal, uses of those works.

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