1. 1 ZB’2011 cc by-nc-sa Intellectual Property - Copyright - Zenia C. Bahorski Ph.D. Department of Computer Science Eastern Michigan University zbahorski@emich.edu

2. 2 ZB’2011 cc by-nc-sa Topics What gives us the right to retain ownership of Intellectual Property? What is included in Intellectual Property? What are the rights of ownership of copyright? How long does copyright holder retain copyright? What are the limitations of fair use? What does the Digital Millennium Copyright Act (DCMA) require? Sony Case Napster Case Grokster Case How do these affect music sharing? To Register or Not to Register

3. 3 ZB’2011 cc by-nc-sa What gives us the right to retain ownership of Intellectual Property? United States Constitution, Article 1, Section 8: –The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

4. 4 ZB’2011 cc by-nc-sa What is included in Intellectual Property? Copyright Trademarks Patents

5. 5 ZB’2011 cc by-nc-sa What are the rights of ownership of copyright? Copyrightable works: –1. literary works; –2. musical works, including any accompanying words; –3. dramatic works, including any accompanying music; –4. pantomimes and choreographic works; –5. pictorial, graphic, and sculptural works; –6. motion pictures and other audiovisual works; –7. sound recordings; and –8. architectural works; (U.S. Copyright Office, Circular 92, p. 8)

6. 6 ZB’2011 cc by-nc-sa What are the rights of ownership of copyright? The copyright holder’s exclusive rights: –(U.S. Copyright Office, Circular 92, p. 17) 1. to reproduce the copyrighted works in copies or phonorecords; 2. to prepare derivative works based upon the copyrighted work; 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; 4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; 5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and 6.in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

7. 7 ZB’2011 cc by-nc-sa How long does copyright holder retain copyright? 1790: –14 years, with registration –Extension allowed for additional 14 years (if still alive and registered an extension) 1831: –28 years with registration –Extension allowed for additional 14 years 1909: –28 years with registration –Extension allowed for additional 28 years Jan. 1, 1978 –If registered before this date: Protected for 95 years (automatically extended) –If registered after this date: Protected for life of the copyright holder plus 70 years (automatically extended) March 1, 1989: no longer need to register work

8. 8 ZB’2011 cc by-nc-sa What are the Limitations of Fair Use? 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 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 copyrighted work (U.S. Copyright Office, Circular 92, p. 19).

9. 9 ZB’2011 cc by-nc-sa What are the Limitations of Fair Use? Single copies made for research or teaching (Faculty and students) –A chapter from a book –An article from a periodical or newspaper –A short story, short essay or short poem, whether or not from a collective work –A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper

10. 10 ZB’2011 cc by-nc-sa What are the Limitations of Fair Use? Multiple copies made for students in course 1.The copying meets the tests of brevity and spontineity –Brevity: –Poem –Less than 250 words and if printed on not more than 2 pages: Complete –Longer than 250 words: Limited to 250 words –Prose: –Less than 2500 words: Complete work –Longer than 2500 words: Maximum of 10% or 1000 words, whichever is less –Spontaneity: Only if there is no time to get permission

11. 11 ZB’2011 cc by-nc-sa What are the Limitations of Fair Use? Multiple copies made for students in course 2. Meets the cumulative effects test –Prohibits the use of copies that will “substitute for the purchase of books, publishers’ reprints or periodicals” 3. Each copy includes a notice of copyright

12. 12 ZB’2011 cc by-nc-sa Digital Millennium Copyright Act (DCMA) require? (1998) -$$$ Copyright holder provides good-faith notice of infringement Online Service Provider (OSP) can take down the allegedly infringing materials –Safe Harbor: OSP is not liable to subscriber for potential wrongful take-down OSP notifies subscriber about take-down Subscriber may give counter-notice indicating good faith belief that materials do not infringe OSP notifies copyright holder about subscriber’s counter-notice OSP restores materials in 10 days unless copyright holder files a copyright infringement suit –Safe Harbor: OSP is not liable to copyright holder for potential contributory infringement Burgunder, L. (2007). Legal Aspects of Managing Technology. Thompson Higher Education, Mason, OH.

13. 13 ZB’2011 cc by-nc-sa Sony Corporation of America v. Universal City Studios, INC. (U.S. Supreme Ct., 1984) Individuals were infringing on Universal and Disney Opinion: –Machine is used for other purposes –Sony had no control over how the machine was being used –Time shifting: Recording a program that the viewer had access to, only to view it at another time –Why is time shifting legal? –When would it not be legal?

14. 14 ZB’2011 cc by-nc-sa A&M Records, INC v. Napster, INC. (9th Circuit Ct. of Appeals, 2001) What was Napster’s role in sharing of files? Purpose and character of use: (Considered factors of fair use) –Commercial use ($$$) –Nature of the work (works were creative) –Portion used: “wholesale copying” –Effect of use on the market Reduced audio sales Raised barriers of future sales from digital downloading Major conclusion: Napster KNEW of infringed works and did nothing to control

15. 15 ZB’2011 cc by-nc-sa Metro-Goldwin-Mayer Studios, INC. v. Grokster, LTD. (U.S. Supreme Ct., 2005) Active steps were taken to encourage infringement –Grokster aimed advertising at former Napster users –Never attempted to filter –Made money on advertisements placed on their sites

16. 16 ZB’2011 cc by-nc-sa How About Music? You made the music, who owns it? You put music that you bought onto your iPod, who owns it? You see others’ music on the network, who owns it? Can you access your own music on a network? Can you access other people’s music libraries from your computer?

17. 17 ZB’2011 cc by-nc-sa To Register or Not to Register Registration: –Not Required –Benefits of Registration: Public record is required to bring suit against an infringer Copyrighted work is protected from anyone bringing an infringed copy from outside the U.S. If registered within 3 months of publication or prior to infringement, statutory damages and attorney’s fees

18. 18 ZB’2011 cc by-nc-sa To Register or Not to Register How to Register: –Appropriate form –File a copy At least one copy of book, manuscript, online work, poetry, or other Pictures of 3-dimensional works –Pay a fee $45.00 nonrefundable filing fee

19. 19 ZB’2011 cc by-nc-sa To Register or Not to Register Copyright Symbol: © –Copyright symbol is not required As of March 1, 1989 Published AND Unpublished works are automatically copyrighted AS SOON AS the work is “fixed” in the form of a copy of the work –Advantages of the copyright symbol Informs public that the work is protected by copyright Identifies the copyright owner –Infringer can’t base defense on “innocent infringement”

20. 20 ZB’2011 cc by-nc-sa Creative Commons http://creativecommons.org/about/licenses bysancnd

21. 21 ZB’2011 cc by-nc-sa Contact Information Zenia C. Bahorski Ph.D. zbahorski@emich.edu Department of Computer Science Eastern Michigan University Ypsilanti, MI 48197 734-487-1063