Professional Documents
Culture Documents
The law deleted the deposit and notice requirements under the
Decree, which were inconsistent with the Berne Convention
prohibition against any formality requirement as a condition for
copyright protection.
The law clarified that copyright includes not just author’s right
of exploitation of the work but also the negative right to prevent the
unauthorized exploitation of the works.
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available at www.wipo.org/treaties/
merely providing facilities for the communication of works
should not be a basis for infringement liability.
On the other hand, while the Treaty itself did not specifically use the words “fair
use,” the Agreed Statement states that “it is understood that the provisions of
Article 10 permit Contracting Parties to carry forward and appropriately extend
into the digital environment limitations and exceptions in their national laws”
which have been considered acceptable under the Berne Convention. Similarly,
these provisions should be understood to permit Contracting Parties to devise
”new exceptions and limitations that are appropriate in the digital network
environment. It is also understood that Article 10(2) neither reduces nor extends
the scope of applicability of the limitations and exceptions permitted by the Berne
Convention.Purpose of Copyright
The Supreme Court has stated that the copyright law, like the patent
statutes, makes reward to the owner a secondary consideration. To
serve the constitutional purpose, courts in passing upon particular
claims of infringement must occasionally subordinate the copyright
holder's interest in maximum financial return to the greater public
interest in the development of art, science and industry.
If a work had not been prepared for oral delivery, it could not claim
copyright protection under this classification. Therefore, formats,
outlines, brochures synopses, or general descriptions of radio and
television programs were not registrable under this section since they
are not, as such, to be orally presented.
(d) Letters;
Originality in Copyright
Case: Pivot Point Intern., Inc. v. Charlene Products, Inc. 372 F.3d
913, C.A.7 (Ill.),2004, June 25, 2004
Case: Mazer v. Stein, 347 U.S. 201 (1954)
Case: Norma Ribbon & Trimming vs. Little, United States Court of
Appeals, Fifth Circuit., No. 94-60389., April 27, 1995.
Case: Hodge E. Mason and Hodge vs. Montgomery Data, Inc., United
States Court of Appeals, Fifth Circuit, No. 91-2305. Hodge E. Mason
and Hodge Mason Maps, Inc. vs.Montgomery Data, Inc., et al. July 28,
1992.
Computer Programs
Judicial Opinions
Law Reports
Derivative Works
Case: New York Times Co., Inc. vs. Tasini, 533 U.S. 483, 121 S. Ct.
2381, 150 L. Ed. 2d 500, 29 Media L. Rep. (BNA) 1865, 59
U.S.P.Q.2d (BNA) 1001, 5 A.L.R. Fed. 2d 623 (2001
Collective Works
So long as the pre-existing work remains out of the public domain, its
use is infringing if one who employs the work does not have a valid
license or assignment for use of the pre-existing work. Established
doctrine prevents unauthorized copying or other infringing use of the
underlying work or any part of that work contained in the derivative
product so long as the underlying work itself remains copyrighted.
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Section 178.2, Intellectual Property Code
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Section 178.3 (a) and (b), Intellectual Property Code
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Section 178.4, Intellectual Property Code
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Section 178.5, Intellectual Property Code
In respect of letters, the copyright shall belong to the writer
subject to the provisions of Article 723 of the Civil Code, which
provides that letters and other private communications in writing are
owned by the person to whom they are addressed and delivered, but
they cannot be published or disseminated withsout the consent of the
writer or his heirs. However, the court may authorize their publication
or dissemination if the public good or the interest of justice so
requires.
There are two tests for determining whether a work is the result of joint
authorship: the first is called the “de minimis test” propounded by
Professor Nimmer and the other is the “copyrightable matter” test
propounded by Professor Goldstein. The “copyrightable matter test”
appeared to be favored by the courts.
Rules on Co-Ownership
Case: Montgomery v. Alcoa, Inc., 11 Fed. Appx. 471 (6th Cir. 2001).
The Act grants the copyright owner the exclusive right "to prepare
derivative works based upon the copyrighted work." The right is also frequently
termed the right of adaptation. A 'derivative work' is a work based upon one or
more pre-existing works, such as a translation, musical arrangement,
dramatization, fictionalization, motion picture version, sound recording, art
reproduction, abridgment
177.3. The first public distribution of the original and each copy
of the work by sale or other forms of transfer of ownership;
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Article II Rental Rights. In respect of at least computer programs and cinematographic
works, a Member shall provide authors and their successors in title the right to authorize
or to prohibit the commercial rental to the public of originals or copies of their copyright
works. A Member shall be excepted from this obligation in respect of cinematographic
works unless such rental has led to widespread copying of such works which is
materially impairing the exclusive right of reproduction conferred in that Member on
authors and their successors in title. In respect of computer programs this obligation
does not apply to rental where the program itself is not the essential object of the rental.
exclusive rights encompassed by copyright may be transferred
separately or assigned individually as the copyright proprietor sees fit
To restrain the use of his name with respect to any work not of
his own creation or in a distorted version of his work
Note: The rights spring from a belief that an artist in the process
of creation injects his spirit into the work and that the artist's
personality, as well as the integrity of the work should therefore be
protected and preserved.
Breach of Contract
Section 185.1 provides that the fair use of a copyrighted work for
criticism, comment, news reporting, teaching, including multiple copies
for classroom use, scholarship, research, and similar purposes is not an
infringement of copyright. Decompilation, which is understood here to
be the reproduction of the code and translation of the forms of the
computer program to achieve the inter-operability of an independently
created computer program with other programs may also constitute fair
use. In determining whether the use made of a work in any particular
case is fair use, the factors to be considered shall include:
The purpose and character of the use, including whether such use
is of a commercial nature or is for non-profit educational purposes;
Section 185.2 states that the fact that a work is unpublished shall not by
itself bar a finding of fair use if such finding is made upon consideration
of all the above factors.
A few cases now have held that software embodied in either random access
memory (RAM), hard disk drives, or other digital storage media are copies in the
copyright sense, notwithstanding, in the case of RAM, the volatile nature of that
storage medium.
These decisions- at least with respect to RAM storage- appear inconsistent with
the House Report on the 1976 Act, which stated that " the definition of ' fixation'
would exclude from the concept purely evanescent or transient reproductions such
as those... captured momentarily in the ' memory' of a computer."
The DMCA also exempts certain ephemeral copies created by online service
providers as part of an " automatic technical process." Again, there is no
implication that ephemeral copies would otherwise be infringing.
Where, however, the copying is entirely passive, and the copies are made at the
direction of a service provider' s users, the service provider may not be liable.
The Copyright Act' s definitions of " copies" and " phonorecords" may also
encompass digitally compressed or encrypted versions of digitized works of
authorship, as such versions can be " perceived, reproduced or otherwise
communicated... with the aid of a machine or device," at least in the hands of
those possessing the requisite decrypting software or keys.
A work does not become a derivative work simply because it has been digitized
or, once digitized, encrypted or compressed. Such techniques are essentially
techniques of copying. If, however, the process of digitization involves the
addition of creative and expressive content to the work, a separately copyrightable
derivative work may result. Mere digitization of the notes and other composed
elements of musical works would be copying, rather than creation of a derivative
work.
One court has held that the digital manipulation of a photograph may result in the
creation of a derivative work if " substantial use" is made of the original.
In New York Times Co. v. Tasini, the Supreme Court apparently equated an
electronic transmission with a public distribution. The Court stated that selling
copies of " articles through the NEXIS Database" constituted distribution of
copies " to the public by sale," albeit without analyzing how the defendants were
distributing physical copies.
The plaintiffs in Frank Music Corp. v. CompuServe Inc. alleged that the
downloading of files of data embodying sound recordings from the defendant' s
online information service constituted public distribution of the underlying
musical compositions.The settlement of that action established a scheme by which
third party forum managers who operate the interest areas of the defendant' s
service could obtain licenses for such downloading as if it were public distribution
and subject to the mechanical royalties and statutory license under US law.
The White Paper and its proponents have argued that there is no reason to treat
works distributed electronically to the public differently from works distributed in
physical copies. Under the proposal of the White Paper, transmissions would
implicate the distribution right only if made to the public, and such distributions
would be subject to the limitation of the first sale doctrine, to the extent it is
applicable in an online environment.
The controversial copyright issues in the online environment is whether and how
the first sale doctrine, which limits the public distribution right, applies to copies
that are transmitted electronically, or are created as a result of such transmissions.
During an electronic transmission, no material copy of a work changes hands;
thus, Section 109 of the Copyright Act, which pertains to the sale or disposal of "
the possession of [a] copy or phonorecord" would appear inapposite to an online
distribution.
It has been proposed that the first sale doctrine should apply to transmissions
creating a copy in the recipient' s computer if the transmitting party deletes the
copy from which the transmission was made. In such a case only one copy of the
work would be extant at the end of the transmission-cum-deletion, an outcome
akin to that when a physical copy of the work is transferred in a conventional first
sale transaction.
The Copyright Office released its report. It also refrained from recommending to
Congress that the first sale doctrine be extended to electronic distributions.
According to the Copyright Office, (1) there was " no convincing evidence of
present-day problems," (2) the analogy to the circulation of physical goods was
not compelling, (3) " forward-and-delete" technology is not available, (4)
expanding Section 109 would encourage infringement of the reproduction right,
and (5) it was unaware of any consumer expectations of being able to transfer
downloaded material.
The online marketplace for digital distribution of sound recordings has exploded,
with many thousands of music files being downloaded every day from MP3.com
and other similar Web sites and traded on college campuses and elsewhere.
Although many of these files are made available with the permission of the
copyright owner, including sites maintained by artists, many others are posted on
the Internet without proper authorization. The recording industry and movie
studios have objected strenuously to these activities because they threaten the
royalties earned through more conventional distribution channels.