Intellectual Property

Boston College Law School

February 2, 2009

Copyright – Rights – Fair Use

Exclusive Rights

• 17 U.S.C. §106– “Subject to sections 107 through 122, the owner of the

copyright … has the exclusive rights to do and to authorize any of the following:

• (1) to reproduce the copyrighted work …

• (2) to prepare derivative works …

• (3) to distribute copies … to the public …

• (4) … to perform the copyrighted work publicly …

• (5) … to display the copyrighted work publicly …

• (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

Public Performance

• 17 U.S.C. §106– “Subject to sections 107 through 122, the owner of the

copyright … has the exclusive rights to do and to authorize any of the following:…

• (4) … to perform the copyrighted work publicly …”

– Sound recordings are excluded• No general public performance right

• But digital public performance right in 106(6)

Collective Rights Organizations

• ASCAP, BMI, etc.– Given authority to license public perf. rights– Provide blanket licenses to users– Enforce licensing requirements– Distribute revenues to copyright owners

Sample Licenses

Public Display

• 17 U.S.C. §106– “Subject to sections 107 through 122, the owner of the copyright

… has the exclusive rights to do and to authorize any of the following:…

• (5) … to display the copyrighted work publicly …”

• 17 U.S.C. §109(c)– “Notwithstanding the provisions of section 106(5), the owner of a

particular copy lawfully made … is entitled … to display that copy publicly … to viewers present at the place where the copy is located.”

Moral Rights

• Berne Convention Article 6bis• Berne Convention Implementation Act (1988)• Visual Artists Rights Act (1990)

Visual Artists Rights Act

• 17 U.S.C. §101– A “work of visual art” is -

• (1) a painting, drawing, print, or sculpture, existing in a single copy [or] in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author … or

• (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author ...

Visual Art

Visual Artists Rights Act

• 17 U.S.C. §106A:– (a) Subject to section 107 …, the author of a work of

visual art -• (1) shall have the right -

– (A) to claim authorship of that work, and

– (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

• (2) shall have the right to prevent the use of his or her name as the author of a work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation

Visual Artists Rights Act

• 17 U.S.C. §106A:– (a) Subject to section 107 …, the author of a work of

visual art -• ...

• (3) … shall have the right– (A) to prevent any intentional distortion, mutilation, or other

modification of that work which would be prejudicial to his or her honor or reputation … ; and

– (B) to prevent any destruction of a work of recognized stature ...

Visual Artists Rights Act

• Additional details– Right attaches regardless of ownership of

copyright or the actual copies– Can be waived, but only in a signed writing– Duration is generally life of the artist– Violation leads to an action for infringement

Fair Use

Fair Use

• 17 U.S.C. § 107. Fair Use– “Notwithstanding the provisions of section 106,

the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research, is not an infringement of copyright….”

Fair Use• 17 U.S.C. § 107. Fair Use

– “In determining whether the use made of a work … 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 …;

• (2) the nature of the copyrighted work;• (3) the amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and• (4) the effect of the use upon the potential market for or value

of the work.”

Fair Use Justifications

• Traditional: Promote Learning and Progress– Full enforcement might harm copyright goals

– Fair use encourages dissemination, learning, etc

• Economic: Response to Market Failure– Certain small-scale uses may be low value

– Transactions costs may preclude licensing

– Fair use cures market failure

Harper & Row v. Nation

Zapruder Film

Sony v. Universal

Other Personal Uses

• Home taping of video, if available on-demand• Taping CD for car stereo• TiVo

American Geophysical

Campbell v. Acuff-Rose

Fair Use?

Dr. Seuss v. Penguin Books

Disney v. Air Pirates

Rogers v. Koons

Defenses

• Fair Use

• Independent Creation

• Consent or License (Express or Implied)

• Statute of Limitations

• Inequitable Conduct

• Copyright Misuse

• First Amendment

Administrative

• Next Assignment– Read II.G – Indirect Liability– Read II.H – Digital