Copyrights Flashcards
1
Q
Definition
A
- An original,
- Phone book example:
- work of authorship,
- facts not copyrightable - color temp map unique
- fixed in a tangible medium of expression
- expression is key, not the idea itself
- the idea needs to be made permanent by the medium: paper, recording, film, etc.
- doesn’t include something that dissipates (skywriting)
Term:
- Living author: Life + 70 years,
- Corporation: date + 95 yrs (pre-1978)
- To allow children, etc. to benefit from wealth
Examples:
- Literary works: includes computer programs
- Musical works (words and meoldies seperately)
- Dramatic works
- Pantomimes
- Choreography
- Audio visual
- Sculptures
- Paintings
- Drawings
- Sound recordings
- Architectural blueprints
- Parodies
- Recipe if it’s special (can also be patentable)
Excludes public domain like Mozart, Grim stories
2
Q
Constitution
A
Constitution refernced copyrights and patents initially
3
Q
Rights of holder
A
Key difference from patents: Right to practice yourself AND exclude others from:
- Reproduce
- Can make copies of software purchased
- Prepare derivative works: movies, characters, other books
- Derivative of the work also protected. No-one else can use Harry Potter characters.
- Prevent others from using
- First sale right
- can’t prevent someone who buys a copy from doing what they want with it - can sell a book you’ve bought
- doesn’t apply to software like Autodesk because it is “licensed” not sold
- Distribute (import/export)
- Public perform
- can’t play a cover in a bar without a license
- Public display
- contract saying you can only display something you buy in certain places
4
Q
Expression of an idea
A
Protect the expression of an idea, not the idea itself.
- zero-point radiation derivation
- other people can write it as long as it’s not the same way and they give credit
5
Q
Thailand
A
Don’t protect IP with copyrights. Copy all software.
Everyone can have access to modern software ~$2 each.
Downside
- No profit being made
- Tech moguls don’t start companies there because there’s no market
6
Q
Court case examples
A
- Duck is unique, distinguished
- Spade’s likeness was too indistinguishable from a general detective persona so it wasn’t infringemnet
- Lotus was original spreadsheet with cells
- Lost to those who copied software
- SC said it was basic so it wasn’t copying
- This is why Microsoft has Excel now
- Screenplay on lady buried alive
- She was told she can’t have copyright on facts of her life since they are public knowledge
7
Q
Granting copyrights
A
- In order to have a valid copyright, a grant
from a government office is not required - Copyright “registration” is simply that,
registration of the copyright claim, not
examination of an “application” as in patents - However, registration is required to enforce the
copyright in US district court;- how soon you
register before suing affects available remedies
as well as evidentiary value of the registration.
Registration date is date required materials are
received at the Copyright Office
- how soon you
- Also, there is no requirement to provide notice to
others of your copyright (e.g. the ©).- but notice does eliminate “innocent
infringement” defense
- but notice does eliminate “innocent
8
Q
Work of authorship
A
- Open ended interpretation
- Examples:
- literary works
- musical works
- dramatic works, pantomimes, choreography
- audiovisual
- pictorial, graphic, and sculptural works
- sound recordings
- architectural blueprints
- computer programs
- Does it need to be artistic?
- no – “because society’s tastes are in constant flux, such a requirement would lead to uncertainty and impede protection.
9
Q
Original
A
Original intellectual conception of authors (completely new)
- some minimal degree of creativity, can even be a small amount - not equated with effort put in
- Chinese menu example had no creative input
- prisoner interview: producer yes, prisoner not an author since he had short answers to conventional questions
Can also include:
- a compilation of other works that forms a new
work (e.g a magazine) with sufficient selection,
coordination or arrangement to constitute an
original work of authorship - a collective work that is a simple
accumulation of previous works (e.g Reader’s
Digest) - a derivative of another work, including any
way in which the first work could be recast,
adopted, or transformed- book to a movie or play
- translation from English to French
10
Q
Fixed in a tangible medium of expression
A
- Can be perceived, reproduced or otherwise communicated
- Fixation for more than transitory duration
- Yes
- Recorded baseball game
- Transcript of speech
- No
- Baseball game
- Skywriting
- Copy for <1 second in memory of computer system
- Yes
11
Q
Not copyrightable?
A
- Ideas, procedures, processes, systems, methods of operations, concepts, priniciples or discoveries
- Just their expression through a medium
- Scenes a faire
- indispensible (standard) basis for treatment of a given idea
- plot devices - love triangles, coming of age
- characters - using them as a device to tell a story
- Sam Spade (cool character is standard)
- indispensible (standard) basis for treatment of a given idea
- Basic and general
- Lotus v Borland
- Menu tree structure in spreadsheet copied
- Did not copy the code, just the setup of commands and functions
- Names of menu commands were just a method of operation - not copyrightable
- Lotus v Borland
- Fact reporting
- Zapruder and the Kennedy assassination
- Directly copied frames with charcoal
- Event may have been news and general knowledge but the way he filmed it was original
- Buried alive lady - story is knoledge and can be used
- Zapruder and the Kennedy assassination
12
Q
Ownership and transfers
A
Initial owner
- work’s author is the initial owner of copyright
- can be a corporation - work made for hire (WMFH)
- employee creating any type of work within the scope of employment; or
- independent contractor creating only certain types of work, if agrees in signed writing that it is WMFH
Transfers
- must be in a signed writing
- “Transfer” includes exclusive license
- Must be recorded to take precedence over a subsequent bona-fide purchaser for value
- Subject to termination (after 35 years, for modern works
13
Q
Direct copyright infringement
A
- Carry out rights of holder without a license from said person
Proof of direct infringement
- Validity of copyright: show it was a registered work
- Reasonable possibility of access: can we infer they accessed it?
- shown by evidence of wide dissemination
- Substantial similarity
- Comprehensive nonliteral: structure is duplicated (paraphrase)
- Fragmented literal: substantial portion copied verbatim
- Artistic: looks at works as a whole
- Fact-based (software): successive filtering
- take our unprotectable and look at what’s left
- ideas, public domain, etc. taken out
14
Q
Contributory copyright infringement
A
- distributing a product that the distributees use to infringe copyrights, if the product is not capable of ‘substantial’ or ‘commercially significant’ noninfringing uses
- contributory infringer has knowledge of another’s
infringement, and either- materially contributes to or
- induces the infringement
- Ex
- Pirate Bay videos - their software contributes to copied downloads and distribution of music
15
Q
Vicarious liability infringement
A
The infringer has:
- the right and ability to supervise the infringing conduct and
- a direct financial interest in the infringing activity.
- basically: has control over the person infringing and benefits financially without trying to stop it
