Intellectual Property

Boston College Law School

January 26, 2007

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 Distribution

• 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:…

• (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending ...

First Sale Doctrine

• 17 U.S.C. §109– “(a) Notwithstanding the provisions of section 106(3),

the owner of a particular copy or phonorecord lawfully made under this title … is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”

– Exceptions

• Recorded music rental

• Software rental

Public Distribution

• Proposals to limit first sale– Royalties for library lending– Royalties for video rentals– Royalties for CD re-sales– Royalties for textbook re-sales

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)

Public Performance• 17 U.S.C. §101

– “To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process …”

– “To perform or display a work ‘publicly’ means -• (1) to perform or display it at a place open to the public or at any

place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered; or

• (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process …”

Public Performance• Examples

– Live performance• Place open to public

– Showing a movie in a movie theater

– Performing a play on Broadway

• Substantial number of people outside normal circle– Performing play in a church or private club

– Performing music at a private dance club

– Transmission• Television broadcast• Radio broadcast of music• Reception of television in a public place (e.g. sports bar)

Public Performance

• 17 U.S.C. §110 Exclusions– (1) Face-to-face teaching activities

– (2) Instructional broadcasting

– (3) Religious services

– (4) Performances of music with no commercial advantage

– (5) Mere reception of broadcast in public

– (6) Agricultural fairs

– (7) In connection with sale of records or sheet music

– (8) Noncommercial broadcasts to deaf and blind

– (9) Certain charitable performances

Public Performance

• Compulsory licenses– Cable retransmissions of broadcast t.v.– Satellite retransmissions of broadcast t.v.– Jukebox performances of musical works– Digital performances of sound recordings

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 to create personal library• Taping CD for car stereo• TiVo

Administrative

• Next Assignment– Finish II.F – Fair Use