Intellectual property is a term referring to a number of distinct types of legal monopolies over creations of the mind, both artistic and commercial, and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994. Its inclusion was the culmination of a program of intense lobbying by the United States, supported by the European Union, Japan and other developed nations. After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization. Because ratification of TRIPS is a compulsory requirement of World Trade Organization membership, any country seeking to obtain easy access to the numerous international markets opened by the World Trade Organization must enact the strict intellectual property laws mandated by TRIPS. For this reason, TRIPS is the most important multilateral instrument for the globalization of intellectual property laws. States like Russia and China that were very unlikely to join the Berne Convention have found the prospect of WTO membership a powerful enticement. Furthermore, unlike other agreements on intellectual property, TRIPS has a powerful enforcement mechanism. States can be disciplined through the WTO's dispute settlement mechanism.
TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:
· Copyright terms must extend to 50 years after the death of the author, although films and photographs are only required to have fixed 50 and to be at least 25 year terms, respectively.(Art. 7(2),(4))
· Copyright must be granted automatically, and not based upon any "formality", such as registrations or systems of renewal.
· Computer programs must be regarded as "literary works" under copyright law and receive the same terms of protection.
· National exceptions to copyright (such as "fair use" in the United States) are constrained by the Berne three-step test.
· Patents must be granted in all "fields of technology," although exceptions for certain public interests are allowed (Art. 27.2 and 27.3) and must be enforceable for at least 20 years (Art 33).
· Exceptions to the exclusive rights must be limited, provided that a normal exploitation of the work (Art. 13) and normal exploitation of the patent (Art 30) is not in conflict.
· No unreasonable prejudice to the legitimate interests of the right holders of computer programs and patents is allowed.
· Legitimate interests of third parties have to be taken into account by patent rights (Art 30).
· In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPS signatories by the principles of national treatment (with certain limited exceptions, Art. 3 and 5
Many of the TRIPS provisions on copyright were imported from the Berne Convention for the Protection of Literary and Artistic Works and many of its trademark and patent provisions were imported from the Paris Convention for the Protection of Industrial Property.
Protection of electronic content
Data networks and computer systems are used to create, store, communicate and manage vast amounts of data and information. This digital content has many different forms and uses and effective management of this content involves several legal and economic issues.
Much of the electronic content is "intellectual property" protected by law and specific legal principles such as copyright, trademark and patent laws. Data networks must be designed, operated and managed in a manner such that they are consistent with these legal principles. The task of protection of this electronic content is made complicated due to the volume of data handled by data networks, the large number of potential users and uses and the diverse media (e.g., text, images, audio, etc.) used to create electronic content. Effective management of such data networks is closely related to effective control over the creation and use of intellectual property.
Trademarks
Trademarks consist of anything that serves to identify the producer of a commercial product or to distinguish the products and services of that producer from its competitors. Trademarks may be characterised through colours (e.g., the blue colour associated with the IBM brand logo), sounds (e.g., musical chimes associated with the NBC network), words or phrases (e.g., Robert Bosch's "Invented for Life") and logos and designs (e.g., Nike's "swoosh" emblem).
Trademarks are protected by law as organizations invest considerable resources in designing these distinct commercial identities and therefore seek protection of these valuable commercial properties through legal frameworks.
Patent Laws
Patent protection forms an important aspect of intellectual property law for management of electronic content. Patents may be obtained for different types of inventions such as devices, processes and products. In the context of data systems, patents are most relevant with respect to networking equipment and software. Inventions that are deemed to be novel, useful and "non-obvious" may be patented. Patent rights provide their inventors with exclusive control over their inventions. In order for patents to be granted, inventors must apply for patent protection from the national government of their country.
Copyright
Copyright laws protect original material as property, under the ownership and control of its creator (the author).
This report focuses on issues related to copyright protection of electronic content, examines copyright legislation in the US and EU and concludes with an examination of the legal framework in India for copyright protection of electronic content.
Copyright
Copyright laws provide ownership rights to the author of "original works" once they are "fixed in a tangible medium of expression". This implies that a creator of an original work is considered to be the owner of the work once it has been fixed in a tangible form (e.g., printed text, audio recording, computer program, video, etc.). The concept of tangible medium of expression has evolved to accommodate the advances in technology. While it has long been recognized that traditional products such as printed works and images can be copyrighted, it has now been recognised that audio/video recordings, computer programs and a wide range of other media and forms of expression satisfy the requirement of tangible form. Copyright protection thus extends to a wider range of forms of expression now.
This section focuses on basic legal rights and responsibilities associated with copyright protection of intellectual property generated by computer systems.
Copyright piracy
When copyrighted material is duplicated and re-distributed without the prior consent of the owner of the copyright, the unauthorized copies are considered to be pirated copies. If copyrighted material is pirated, the individual who made the unauthorized copies is liable to the copyright owner, and the owner of the computer system that was used to duplicate, distribute or make other use of the pirated material may also be liable to the copyright owner.
Remedies available to the copyright owner for piracy include court orders to the pirate to cease distributing the pirated material and to destroy all remaining copies of the pirated material. The remedies available also include monetary awards to compensate for damages caused to the copyright owner as a result of piracy. Some jurisdictions also permit courts to award punitive damages to punish the pirate, and imprisonment can be ordered by courts in some jurisdictions.
Regulating copyright circumvention technologies
Some jurisdictions are evolving policies towards regulation of technologies that may be used to circumvent copyright-ownership systems and technologies applied by copyright owners. In some jurisdictions, it is illegal to manufacture, distribute or use a technology that may be used to circumvent copyright-ownership protections. Other jurisdictions are experimenting with the use of fees or taxes assessed against the manufacturer of such technologies.
The Digital Millennium Copyright Act (DMCA) in the United States, for instance, makes the manufacture, distribution, or use of such technologies that have copyright circumvention capability illegal. It may apply to both hardware and software that can be used to defeat copyright protective measures.
The US case (Universal City Studios, Inc. vs. Reimerdes) involved litigation over the DeCSS software used for decryption of DVD content (and the on-line system applied to distribute the software). In October 1999, the Motion Picture Association of America (MPAA) became aware of the availability on the Internet of DeCSS, a program that could crack the copy-protection on DVDs. The industry responded by sending out a number of cease and desist letters to web site operators who posted the software, some of whom removed it from their sites.
In January 2000, the movie studios filed a lawsuit against Eric Corley, publisher of 2600: The Hacker Quarterly Magazine, and two others (including Shawn Reimerdes), based on the recently passed DMCA. After a hearing, the Court granted a preliminary injunction barring the defendants from posting DeCSS. At the conclusion of the hearing, the plaintiffs sought also to enjoin defendants from linking to other sites that posted DeCSS, but the Court declined to entertain the application at that time in view of the plaintiffs' failure to raise the issue in their motion papers.
The defendants sought to invalidate the DMCA itself on constitutional and other grounds. After a three day trial, United States District Judge Lewis A. Kaplan issued an 89-page ruling on August 17, 2000 upholding the motion picture industry's position and the constitutionality of the DMCA.
"In the final analysis, the dispute between these parties is simply put if not necessarily simply resolved. Plaintiffs have invested huge sums over the years in producing motion pictures in reliance upon a legal framework that, through the law of copyright, has ensured that they will have the exclusive right to copy and distribute those motion pictures for economic gain. They contend that the advent of new technology should not alter this long established structure. Defendants, on the other hand, are adherents of a movement that believes that information should be available without charge to anyone clever enough to break into the computer systems or data storage media in which it is located. Less radically, they have raised a legitimate concern about the possible impact on traditional fair use of access control measures in the digital era. Each side is entitled to its views. In our society, however, clashes of competing interests like this are resolved by Congress. For now, at least, Congress has resolved this clash in the DMCA and in plaintiffs' favour. Given the peculiar characteristics of computer programs for circumventing encryption and other access control measures, the DMCA as applied to posting and linking here does not contravene the First Amendment.
The case was appealed to the US Court of Appeals for the Second Circuit. After a hearing on May 1, 2001 a three judge panel (Judges Newman, Cabranes and Thompson) upheld Judge Kaplan on November 28. In particular the Second Circuit ruled that linking on the Internet happened so fast that it could be restrained in ways that might not be constitutional for traditional media. The defendants chose not to appeal to the U.S. Supreme Court.
The Convention on Cyber-Crime of the EC also prohibits technologies with copyright circumvention capability. The convention makes copyright infringement a cyber-crime (Title 2, Article 10), and it makes production, sale, distribution, or possession of any device or equipment, with the intent to commit an act in violation of any of the terms of the convention, an offense (Title 1, Article 6).
Germany applies a fee assessed against manufacturers of equipment that can be used to circumvent copyright-protection measures. The fee is charged on a per-unit-offered-for-sale basis. Revenues from the fees are collected by German copyright societies and are put into a fund that is to be distributed to copyright owners.
Open-source content
Open-source software is computer source code that follows a set of standards defined by the Open Source Definition proposed by the Open Source Initiative. Various interpretations of the definitions are made available by different sources, but most widely acceptable interpretation is from the Open Source Initiative and was proposed by the Debian Free Software Guidelines. According to these guidelines, the source of the software has to be published to the party whom the software is given/sold to and the software should accompany a license that lets the recipient distribute a modified version of software, with due acknowledgment to the original author. The power of open-source software lies in the type of license used and some of the licenses can be really restrictive and viral.
When dealing with open-source software, the user of the software must make sure to comply with the open-source requirements, with regard to the material it develops, based on the original open-source product. An open-source software is also an intellectual properly and its distribution is restricted with the terms and conditions of the license. The user continues to have an obligation to comply with the terms of that license. Failure to comply with the terms of the open-source license can result in copyright infringement liability.
Effective separation of open-source and non open-source material is an essential element of intellectual property management in the open-source environment and achieving this separation will become a challenge with the increasing popularity of open-source software. For example, if an enterprise inadvertently integrates code that it intended to treat as proprietary material into an open-source product that carries a GPL license, the enterprise will lose its exclusive proprietary rights to that material and the enterprise is bound to publish the source code of its proprietary software under a GPL license.
Peer-to-peer content sharing
The rise in popularity of distributed computing, shared-content models is an important aspect of intellectual property management of electronic content. The peer-to-peer structure provides computer users with greater control over the content that they share with other network users. Such peer-to-peer systems make it more difficult to ensure effective compliance with copyright license terms. As end users gain greater control over content sharing and require less contact with network intermediaries, the distribution process for licensed material become more diffuse and less readily controlled by any middle party. The Napster litigation is a case in point.
In the Napster litigation associated with on-line music distribution (R.I.A.A vs. Napster), the music industry alleged that the peer-to-peer sharing software and on-line system constituted a technology that assisted in the circumvention of music copyright protection. In September 2001, Napster agreed to pay $ 26 million to music publishers to end the litigation. Napster also agreed to pay $10 million to the Harry Fox Agency, the licensing arm of the National Music Publishers Association for the future use of copyrighted material. In addition, Napster agreed to pay music publishers one-third of the revenues given to content owners.
In the distributed-computed setting supported by peer-to-peer networks, end users bear greater responsibility for intellectual property license compliance. One of the current challenges is the development of a system for content-usage monitoring and payment collection that provides content providers with greater confidence that the license terms associated with the distribution of their property in this setting will be enforced.
Linking, framing, and cached content
Various standard forms of web activity carry certain legal liability concerns. Use of hypertext links between web pages is one of the fundamental aspects of web pages. Under certain instances, there may be legal issues associated with web page linking. For example, an issue that has been raised is to the extent to which a link from one website to a site owned by another party can cause the owner of the first web site liable for legal violations (e.g., copyright infringement) that occur in the second party's site.
In the case of alleged copyright infringement, in which a defendant has posted allegedly infringing material at its website and the court has ordered the defendant to take the material off the site, a US court concluded (Intellectual Reserve Inc vs. Utah Lighthouse Ministries, Inc.) that the defendant may also be liable (as a contributory infringer) if other parties took the material from the defendant's website and made the material available on their own sites.
Legal disputes have also been associated with the use of frames and other forms of on-screen appearance of web content. Copyright infringement claims may be raised by the owners of the framed content, and they would be raised against the party conducting the framing. Under a copyright infringement claim, the owner of the material argues that the use of the frame creates a derivative work that can be created only with the permission of the copyright owners.
Owners of copyrighted material have raised concerns that caching can result in distribution of their on-line content. A strict application of the copyright law could support a copyright infringement claim by the content owner against the party who creates the cached copies. However, no formal legal challenges to caching have been raised, although numerous parties have expressed concerns about the process. It is likely that if a legal challenge is raised, a key issue to be addressed will involve a determination of whether the caching in question constituted fair use of the content. If it is found to be fair use, the unauthorized duplication of the material would be permissible.
Managing licensed products
Most computer systems store, distribute, or use some amount of intellectual property that has been developed by another party. In order to use this content legally, the user must obtain permission from the owner of the intellectual property rights of the material. The contract between the copyright owner and the authorized user is called a license, and it provides the legal foundation for all authorized use of the intellectual property. All computer systems must be effectively managed to ensure that all licensed property stored, distributed, or used within those systems is handled in a manner consistent with the relevant licenses. Failure to manage the use of licensed intellectual property properly can lead to legal liability for the individual users and owner of the computer system.
Licensed property must be managed so that only the authorized number of users has access to the material. The property must be used only for authorized purposes. Licenses commonly restrict duplication, distribution, and modification of the licensed material, specifically limiting the number of copies of the material that can be created and generally prohibiting alteration of the original material. The material can be used only for the authorized period of time or term. These key elements must be effectively catalogued and enforced by all licensees. This process of managing license compliance is necessary to reduce the risk of copyright infringement liability.
Work-for-hire
Computer system owners, often make use of software and other forms of electronic content that they develop on their own, making use of employees or contractors to create the material. The employer intends to assert ownership rights over the intellectual property created by its employees within the scope of the employee's job requirements. This principle is known as work-for-hire. It is based on the notion that an employee has been hired to perform a variety of duties and that any property created by the employee as part of his or her employment is to be owned by the employer.
If a work-for-hire relationship is not effectively established, the employee may own the intellectual property he or she creates. In such a situation, employers may be forced to negotiate a license with the employee if they want to access his or her property. Use of such a property without a license would make the employer liable to face monetary damages or court orders to cease use of the property.
If an organization makes use of contractors, material created by the contractors is generally the property of the contractors and not the organization. If the organization wants ownership of the copyright for the material created by the contractor, it must take special steps in advance of the creation of the material to obtain the ownership of the material. A written contract needs to be in place that states that both parties agree that the material created by the contractor shall be under the ownership of the organization. Additionally, the contract should include an assignment and transfer to the client of all ownership rights that the contractor may have in the work.
Digital Rights Management
Digital Rights Management is a generic term given to various technologies which help in the protection of intellectual property of electronic content by restricting what actions an authorized recipient may take in regard to that content. The proponents of DRM argue that it is essential for preventing illegal or unauthorized usage of copyrighted work whereas the opponents argue that DRM extends beyond the scope of copyright protection provided by current laws and infringes on the "fair use" of copyrighted work. The opponents also argue that DRM helps in violating privacy and competition laws in addition to scuttling freedom of expression and development of open source software. A related issue here is anti-circumvention laws which help in the prevention of breaking/circumvention of the DRM systems. We will be exploring these issues with the help of relevant acts and conventions in the below sections.
WIPO Copyright Treaty
The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention and came into force in 1996. This treaty brought computer programs and databases under the copyright act. As per Article 4 of the agreement, computer programs are to be protected as literary works and as per Article 5, the selection and arrangement of databases constitute intellectual creations and should be protected as such.
WCT empowers the authors to exclusively control the distribution and rental of their works via Articles 6 to 8 except under special cases (Article 10). This is in addition to the rights granted to authors in the Berne convention.
Article 11 requires the contracting parties to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention.
Article 12 requires the contracting parties to provide adequate legal protection and effective legal remedies against the modification of rights management information contained in the works of authors.
Articles 11 and 12 have been widely seen by opponents of DRM as extending the scope of the already existing copyright laws and infringing on the "fair use" of the copyrighted work. Currently, 88 states are parties to this agreement. India is not a member of this treaty yet.
<<DMCA, European Directive on copyright and some related cases may have to come here. DRM itself will have to be pushed down and come after the copyright laws.>>
Copyright Legislation in U.S.A. and the E.U.
U.S.A.
The United States Constitution grants Congress the power to protect authors by giving then certain exclusive rights in their works. This section examines the scope of copyright protection in the on-line setting.
Copyright Act
Requirements for copyright protection
The Copyright Act grants exclusive rights to authors of certain types of creative works, whether published or unpublished. To be protected under the Copyright Act, these must "be original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device".
Authorship
The Copyright Act extends to sound recordings as well as literary, dramatic, musical, choreographic, architectural, pictorial, and sculptural works. Computer programs and most database compilations may be registered as "literary works" if they meet the other requirements for protection. The courts have also instructed that copyright protects the way an idea is expressed, and not the idea itself. Thus, procedures, methods of operation, systems, processes, concepts, principles, discoveries or devices, as distinguished from a description, explanation, or illustration, are not copyrightable.
Computer programs and software are considered to be copyrightable literary works under the Copyright Act. In numerous cases, the courts have upheld that software is protectable expression written in the language of computer code. In the case of Apple Computer, Inc. vs. Franklin Computer Corp., the court determined that it makes no difference to the issue of protection whether the program is expressed in source code or object code, or embodied on read only memory or in an operating system.
The copyrightability of the non-literal aspects of software has proven to be a closer question for the courts. In the case of Lotus Development Corp. vs. Borland International, Inc., a federal court of appeals held that a spreadsheet program's menu command hierarchy was not copyrightable because it was essentially more of a method of operating a program rather than a form of expression. In the case of Computer Associates International, Inc. vs. Altai, Inc., the court held that a screen display or graphical user interface is not copyrightable to the extent that it is a functional or utilitarian aspect of the program's structure and not a form of protectable expression.
Originality
The element of originality has been of central concern in determining whether computer databases and similar compilations are protectable by copyright. In Feist Publications, Inc. vs. Rural Telephone Service Co., Inc., the United States Supreme Court considered the extent of copyright protection for a telephone directory and concluded that while each of the individual data is not protected, because they are facts and material in the public domain, the selection, arrangement, and co-ordination of the data can be protected if done in a sufficiently creative or original way. Although the collection and compilation of electronic data often involves great time and effort, this standard means that the resulting database will not be eligible for copyright protection unless the process for selecting data and the resulting arrangement demonstrated some degree of originality.
This standard has been applied in two cases involving West Publishing Company's compilations of judicial opinions and other legal materials. In one case, the court held that HyperLaw, Inc., a company that publishes electronic compilations of federal court cases, was entitled to copy information specifying the names of the parties and their attorneys, courts, dates of decision, alternative citations, and case history that West had compiled because they lacked even minimal creativity. In another case, the same court held that West's page numbering and cross referencing system for its WESTLAW computer database was also not sufficiently creative to warrant copyright protection.
Fixation requirement
In the context of computer technology, the fixation requirement has not been a fiercely debated issue. In the case of Midway Manufacturing Co. vs. Artic International, Inc., the court found that the audio-visual displays of an electronic game were fixed and reproducible even though images changed rapidly. Similarly, in MAI Systems Corp. vs. Peak Computer, Inc., the court decided that the loading of software into RAM memory constituted fixation whenever the program was executed.
Copyright ownership and duration
Copyright protection extends to all published and unpublished works, regardless of the nationality or domicile of the author. The copyright vests at the time the work is created in fixed form and immediately becomes the property of the author who created the work. No publication or registration with the Copyright Office is required to obtain a copyright.
Ownership of works for hire and joint works
Only the author, or those who have been given a license or been assigned the copyright by the author, can rightfully enforce the copyright. When a work has been made for hire, the employer and not the employee is considered to be the author.
Authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.
Transfer of copyright
Copyright owners are free to transfer by contract or will any or all of their exclusive rights to one of multiple persons. A transfer of exclusive rights must be in writing and signed by the copyright owner, whereas transfer of a right on a non-exclusive basis does not require a written agreement.
Copyright term
Copyright protection lasts for the author's life plus an additional seventy years after the death of the author. In the case of a joint work, the term lasts for seventy years after the death of the last surviving author. For works made for hire, the duration of the copyright is 95 years from publication or 120 years from creation, whichever is shorter.
Copyright infringement and Internet issues
The use of the Internet has resulted in several copyright infringement issues. Most frequently, the courts have encountered claims of infringement involving a copyright owner's exclusive rights to reproduce, distribute, make derivative works, and publicly display or perform his or her works on-line. In various cases, the courts have determined that displaying the unauthorized copies of electronic clip arts, texts, graphics and music files, and photographs on web pages violated the copyright owner's rights of reproduction and public display, performance and distribution.
Contributory and vicarious infringement
Contributory infringement occurs when the defendant knows of and participates in the infringing activities of another. Vicarious liability for infringement results when the defendant controls or supervises another, such as an agent, and receives financial benefit from the other's infringing activities.
Claims based on these types of indirect infringement on the Internet have arisen in the context of electronic bulletin boards. In Sega Enterprises Ltd. vs. Maphia, the defendant operated a bulletin board that contained and distributed unauthorized copies of Sega copyrighted video game software. Sega sued for contributory and vicarious infringement when it discovered that users of the bulletin board were allowed to upload and download the games and had provided the facility to do so with the expectation of profit. The court concluded that the defendant was liable for contributory infringement of Sega's copyright.
Fair use as a defence
As per the Copyright Act, the rights provided to a copyright owner are not unlimited in scope. The Copyright act establishes limitations on these rights. One major limitation is the doctrine of fair use. Fair use limits the exclusive rights of the copyright owner and serves as a defence to a claim of infringement. The defence applies to use of the copyrighted work for purposes of criticism, comment, news reporting, teaching, scholarship, and research.
Digital Millennium Copyright Act (DMCA)
The DMCA contains several provisions of importance to on-line businesses. The DMCA prohibits circumvention of any technological measures that restrict access to a copyrighted work, such as password protection or encryption. For example, circumvention would occur if a file containing an encrypted copyrighted work was decrypted, or if a password protection device was deactivated or bypassed to gain access to a copyrighted work. Producing or importing such circumvention products or services is also prohibited. The DMCA also prohibits removal or alteration of copyright management information from a copyrighted work.
The DMCA allows the owner of a computer to make a copy of a program during repair or maintenance of the computer.
The DMCA limits the liability of ISPs for -
· Copyright infringement resulting from the passive transmission of infringing material between users;
· temporary or intermediate storage of infringing material between users;
· temporary or intermediate storage or caching of infringing material on their networks or servers by users;
· for hyperlinking to web sites containing infringing material.
Under the DMCA, an ISP can avoid liability for contributory or vicarious copyright infringement should one of its subscribers place an infringing copy on-line by following the "notice and takedown" provisions, which require that once an ISP receives notice of the infringement, it must take down the unauthorized material. In addition, the ISP must designate and register with a Copyright Office agent to receive notices from copyright owners, and must implement a policy of terminating the accounts of subscribers who are repeat infringers.
In the case of Kelly vs. Arriba Soft Corp., the courts have interpreted the various "safe harbour" provisions of the DMCA. The defendant operated a "visual search engine" that retrieved through use of an Internet crawler, graphical images in response to a search query entered by the user. The search engine produced a list of reduced, thumbnail pictures related to the user's query. By clicking on the desired thumbnail, a user could view the image attributes window displaying the full-size version of the image, a description of the dimensions, and an address for the web site where it originated. The plaintiff, a photographer, who had published several books, sued for copyright infringement when she discovered that 35 of her images were indexed by the search engine and put in the defendant's image database and was made available to users as thumbnails in the defendant's visual search engine. The plaintiff argued that the defendant violated the DMCA by displaying thumbnails of her images without displaying the corresponding copyright management information. The court found no violation of the DMCA because the copyright information remained available to users in the website containing the image.
Family Entertainment and Copyright Act 2005
The Family Entertainment and Copyright Act is a federal legislative act regarding copyright that became law in the United States in 2005. The Act consists of two subparts:
1. The Artist's Rights and Theft Prevention Act of 2005, which increases penalties for copyright infringement,
2. The Family Home Movie Act of 2005, which permits the development of technology to "sanitize" potentially offensive DVD content.
The Artist's Rights and Theft Prevention Act of 2005
This act, also known as the "ART Act", is targeted at preventing piracy of movies and software. It specifically targets two activities: filming movies in a movie theatre, and early release of movies and software before they become publicly available.
Anyone who "knowingly uses or attempts to use an audio-visual recording device to transmit or make a copy of a ... protected work... from a performance of such work in a motion picture exhibition facility..." may be imprisoned up to three years for a first time offender, and up to six years for a repeat offender, in addition to any fines that may be levied under the U.S. Criminal Code for copyright infringement. This could apply to merely taking a cell phone snapshot of a theatre screen.
With regard to unreleased works intended for public distribution (e.g., beta software or workprints), anyone who makes a work that the copyright owner expects to distribute commercially, but is not yet distributed, shall be punished if the work is "made available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution." First time offenders can get up to three years in jail, or five if they committed the offense for financial gain. Repeat offenders can get ten years if the offense was committed for financial gain. These penalties are in addition to any penalties for violating non-disclosure agreements or trade secret law.
The Family Home Movie Act of 2005
This section is an exemption of liability allowing the creation of technology that can edit a DVD movie on the fly and create a censored version of that movie. This provision arose out of a lawsuit between ClearPlay, a Salt Lake City-based company that markets DVD-sanitizing technology, and several Hollywood studios and directors. The ClearPlay technology allows a home consumer to screen out up to 14 different categories of objectionable content, such as drug use, sexual situations, or foul language.
The act does not permit one to create a new hardcopy of a movie in a completely "sanitized" format, nor does it permit the technology to replace or insert new video or audio to replace the offending content.
Copyright Legislation in India
Copyright Act (1957) is the instrument governing Indian copyright law. As per section 13 of the act, protection of copyright is conferred on original literary, dramatic, musical and artistic works, cinematograph films, and sound recordings. For example, books, computer programs are protected under the Act as literary works.
Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of Section 14 of the Act. These rights can be exercised only by the owner of copyright or by any other person who is duly licensed in this regard by the owner of copyright. These rights include the right of adaptation, right of reproduction, right of publication, right to make translations, communication to public etc.
Copyright protection is conferred on all Original literary, artistic, musical or dramatic, cinematograph and sound recording works. Original means, that the work has not been copied from any other source. Copyright protection commences the moment a work is created, and its registration is optional. However it is always advisable to obtain a registration for a better protection. Copyright registration does not confer any rights and is merely a prima facie proof of an entry in respect of the work in the Copyright Register maintained by the Registrar of Copyrights.
As per Section 17 of the Act, the author or creator of the work is the first owner of copyright. An exception to this rule is that, the employer becomes the owner of copyright in circumstances where the employee creates a work in the course of and scope of employment.
Copyright registration is invaluable to a copyright holder who wishes to take a civil or criminal action against the infringer. Registration formalities are simple and the paperwork is least. In case, the work has been created by a person other than employee, it would be necessary to file with the application, a copy of the assignment deed.
One of the supreme advantages of copyright protection is that protection is available in several countries across the world, although the work is first published in India by reason of India being a member of Berne Convention. Protection is given to works first published in India, in respect of all countries that are member states to treaties and conventions to which India is a member. Thus, without formally applying for protection, copyright protection is available to works first published in India, across several countries. Also, the government of India has by virtue of the International Copyright Order, 1999, extended copyright protection to works first published outside India.
The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection in the following two forms:
(A) Economic rights of the author, and
(B) Moral Rights of the author.
(A) Economic Rights: The copyright subsists in original literary, dramatic, musical and artistic works; cinematographs films and sound recordings. The authors of copyright in the aforesaid works enjoy economic rights u/s 14 of the Act. The rights are mainly, in respect of literary, dramatic and musical, other than computer program, to reproduce the work in any material form including the storing of it in any medium by electronic means, to issue copies of the work to the public, to perform the work in public or communicating it to the public, to make any cinematograph film or sound recording in respect of the work, and to make any translation or adaptation of the work. In the case of computer program, the author enjoys in addition to the aforesaid rights, the right to sell or give on hire, or offer for sale or hire any copy of the computer program regardless whether such copy has been sold or given on hire on earlier occasions. In the case of an artistic work, the rights available to an author include the right to reproduce the work in any material form, including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work, to communicate or issues copies of the work to the public, to include the work in any cinematograph work, and to make any adaptation of the work. In the case of cinematograph film, the author enjoys the right to make a copy of the film including a photograph of any image forming part thereof, to sell or give on hire or offer for sale or hire, any copy of the film, and to communicate the film to the public. These rights are similarly available to the author of sound recording. In addition to the aforesaid rights, the author of a painting, sculpture, drawing or of a manuscript of a literary, dramatic or musical work, if he was the first owner of the copyright, shall be entitled to have a right to share in the resale price of such original copy provided that the resale price exceeds rupees ten thousand.
(B) Moral Rights: Section 57 of the Act defines the two basic "moral rights" of an author. These are:
(i) Right of paternity, and
(ii) Right of integrity.
The right of paternity refers to a right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work. Right of integrity empowers the author to prevent distortion, mutilation or other alterations of his work, or any other action in relation to said work, which would be prejudicial to his honour or reputation. The proviso to section 57(1) provides that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer program to which section 52 (1)(aa) applies (i.e. reverse engineering of the same). It must be noted that failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section. The legal representatives of the author may exercise the rights conferred upon an author of a work by section 57(1), other than the right to claim authorship of the work..
