Intellectual Property Boston College Law School January 28, 2008 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)

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

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

Administrative Next Assignment –Finish II.F – Fair Use