Reproduction, adaptation and fair use Flashcards
What do the Berne Convention and WIPO copyright treaty say about reproduction and adaptation?
The Convention provides that “authors of literary and artistic works protected by this convention shall have the exclusive right of authorizing the reproduction of
these works, in any manner or form” and that that “authors of literary or artistic works shall enjoy the
exclusive right of authorizing, arrangements and other alterations of their works.” It also says that authors of literary or artistic works shall have the exclusive right of authorizing the cinematographic adaptation and reproduction of their works.
The WIPO copyright agreement basically says that the member states shall comply with the Berne Convention, but it adds that the exceptions are fully applied for works in digital form.
What does the Information SOciety Directive (2001/29/EC) say about reproduction right?
The Information Society Directive is much more detailed than the Berne Convention. It directs member states to provide an exclusive right encompassing direct or indirect, permanent or temporary reproductions by any means and in any form, in whole or in part.
What does the US legislation say about reproduction adaptation and fair use?
Section 106 of the Copyright Act of 1976 gives copyright owners the exclusive right “to reproduce the copyrighted work in copies” and “to prepare derivative works based upon the copyrighted work”. Section 107 of the copyright act provides that the
fair use of a copyrighted work is not an infringement of copyright, such as for the reasons of criticism, research, teaching… and other factors are used to determined the fair use, like the amount of the portion of the original work used in the copy.
Explain the case Folsom v. Marsh (book on the life of George Washington).
- 866 pages abridgment of a 12 volumes work on the life of George Washington
- Various elements considered - cit. English authorities
- In short, we must often, in deciding questions of this sort, look to the nature and objects of the
selections made, the quantity and value of the materials used, and the degree in which the use may
prejudice the sale, or diminish the profits, or supersede the objects, of the original work. - Decision for the plaintiff (despite some regret)
- Although Folsom v. Marsh is certainly an important decision in the fair use cannon, the caselaw from which the modern understanding of fair use evolved dates back to at least 1741 in Lord Hardwicke’s decision in Gyles v. Wilcox.
What was decided in the case White-Smith Music Publishing v. Apollo Co (1908)?
Player piano (pianola): first mass produced technology for mechanical reproduction of music
* Are perforated piano rolls a “copy” of music sheets?
“I cannot convince myself that these perforated sheets of paper are copies of sheet music within the
meaning of the copyright law. They are not made to be addressed to the eye as sheet music, but they
form a part of a machine. (Kennedy v. McTammany , 33 Fed. Rep. 584)
“These perforated rolls are parts of a machine which […] produce musical tones in harmonious
combination. But we cannot think that they are copies within the meaning of the copyright act.”
(Daj J, for the majority)
“A musical composition is a rational collocation of sounds. On principle anything that mechanically
reproduces [the same] collocation of sounds ought to be held a copy”
(Holmes J, concurring)
What’s the definition of a derivative work according to the US Copyright Act?
The Copyright Act of 1976 defines a “derivative work” as “a work based upon one or more preexisting works” and then lists several examples followed by a catchall “or any other form in which a work may be recast, transformed, or adapted.”
- A derivative work necessitates recasting a qualitatively and quantitatively significant amount of the primary work’s original expression into a new form or a new version.
- The right to “produce a derivative work based upon the copyrighted work” is in some sense
superfluous to the reproduction right.
- The relationship between fair use and derivative works can be confusing. Some fair uses will create derivative works, but if a use is fair it does not infringe the exclusive right to “produce a derivative work based upon the copyrighted work,”
Explain the case Castle Rock Entertainment v. Carol Publishing Group
Plaintiff was the producer and copyright owner of each episode of the Seinfeld television series. Defendants were the author and publisher of a book containing trivia questions and answers about events and characters depicted in the television series. The book drew from the majority of television episodes. The name of the television series appeared prominently on the book’s front and back covers and pictures of the principal television actors appeared on the cover and within the book. The court affirmed the order granting summary judgment to plaintiff producer of the television series Seinfeld and permanently enjoining defendants, the author and publisher of a book about the events and characters in the series, from actual publication because plaintiff showed that information from the copyrighted television series was actually copied by defendants and that the copying amounted to an improper or unlawful appropriation.
Explain the case Warner Brothers Entertainment, Inc. v. RDR Books
By condensing, synthesizing, and reorganizing the preexisting material in an A to-Z reference guide, the Lexicon does not recast the material in another medium to retell the story of Harry Potter, but instead gives the copyrighted material another purpose. That purpose is to give the reader a ready
understanding of individual elements in the elaborate world of Harry Potter that appear in voluminous and diverse sources. As a result, the Lexicon no longer “represents [the] original work[s] of authorship.”
However, the Lexicon was found to infringe the reproduction right on the ground that it contained too much cut-and-paste from J.K. Rowling’s books
What’s the scope of copyright in derivative works? Use Keeling v. Hars as example.
A derivative work can also be a new copyrighted work, possibly with a different owner to the original and entitled to a new term of protection, according to section 103 of the 1976 copyright act. The act also clarifies that the copyright in such work is independent of any copyright protection in the preezisting material.
Plaintiff, the author of “Point Break Live!”, filed suit against defendants, asserting claims for copyright infringement, breach of contract, and tortious interference with contract. At issue on appeal was whether an unauthorized work that makes “fair use” of its source material may itself be protected by copyright. The court held, for substantially the reasons stated by the district court that, if the creator of an unauthorized work stays within the bounds of fair use and adds sufficient originality, she may claim protection under the Copyright Act, 17 U.S.C. 103, for her original contributions.
