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Copyright infringement

An advertisement for copyright and patent preparation services from 1906, when copyright registration formalities were still required in the US.

Copyright infringement is the unauthorized use of works under copyright, infringing the copyright holder's "exclusive rights", such as the right to reproduce, distribute, display or perform the copyrighted work, spread the information contained within copyrighted works, or to make derivative works. It often refers to copying "intellectual property" without written permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work's creator.

Contents

Colloquial terminology

Copyright infringement is often associated with the terms piracy and theft. Although piracy literally means brazen high-seas robbery and kidnapping, it has a long history of use as a synonym for acts which were later codified as types of copyright infringement. Theft is more strongly hyperbolic, emphasizing the potential commercial harm of infringement to copyright holders; however, not all copyright infringement results in commercial loss, and the U.S. Supreme Court has ruled that infringement does not easily equate with theft.[1]

"Piracy"

The practice of labelling the infringement of exclusive rights in creative works as "piracy" predates statutory copyright law. Prior to the Statute of Anne in 1710, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labelled pirates as early as 1603.[2] The term "piracy" has been used to refer to the unauthorized copying, distribution and selling of works in copyright.[3] Article 12 of the 1886 Berne Convention for the Protection of Literary and Artistic Works uses the term "piracy" in relation to copyright infringement, stating "Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection."[4] Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale."[5] Piracy traditionally refers to acts of copyright infringement intentionally committed for financial gain, though more recently, copyright holders have described online copyright infringement, particularly in relation to peer-to-peer file sharing networks, as "piracy."[3]

"Theft"

Copyright holders frequently refer to copyright infringement as theft. In copyright law, infringement does not refer to theft of physical objects that take away the owner's possession, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization.[6] Courts have distinguished between copyright infringement and theft holding. For instance, in the United States Supreme Court case Dowling v. United States (1985), bootleg phonorecords did not constitute stolen property. Instead, "interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: '[...] an infringer of the copyright.'" The court said that in the case of copyright infringement, the province guaranteed to the copyright holder by copyright law—certain exclusive rights—is invaded, but no control, physical or otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of using the copyrighted work or exercising the exclusive rights held.[1]

Enforcement responsibility

The enforcement of copyright is the responsibility of the copyright holder.[7] Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries enable courts to remedy copyright infringement with injunctions and the destruction of infringing products, and award damages.[5] Copyright holders have started to demand through the ACTA trade agreement that states act to defend copyright holders' rights and enforce copyright law through active policing of copyright infringement.[8] It has also been demanded that states provide criminal sanctions for all types of copyright infringement and pursue copyright infringement through administrative procedures, rather than the judicial due process required by TRIPs.[7]

In the U.S., copyright infringement is sometimes confronted via lawsuits in civil court, against alleged infringers directly, or against providers of services and software that support unauthorized copying. For example, major motion-picture corporation MGM Studios filed suit against P2P file-sharing services Grokster and Streamcast for their contributory role in copyright infringement.[9] In 2005, the Supreme Court ruled in favor of MGM, holding that such services could be held liable for copyright infringement since they functioned and, indeed, willfully marketed themselves as venues for acquiring copyrighted movies. The MGM v. Grokster case did not overturn the earlier Sony decision, but rather clouded the legal waters; future designers of software capable of being used for copyright infringement were warned.[10]

In addition to legal maneuvers to curb copyright infringement, the motion picture industry tried different ways of distribution. Instead of waiting months after the debut of a movie to release it on DVD or video-on-demand, movies like Bubble (2005), were released on all formats at the same time. Although, the motion picture industry released it on different dates in different regions and still delayed it from the theatrical release. Both the industry and advocates of file-sharing believe that further reducing such distribution "windowing" will reduce copyright infringement. Nevertheless, the industry's position is that with the Internet being a global entity, it will still take a combination of worldwide legal agreements, an agency tasked with enforcing the crimes, and new ways of selling products to reduce copyright infringement.

Criminal liability

Article 61 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries establish criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale".[5] Copyright holders have demanded that states provide criminal sanctions for all types of copyright infringement.[7]

The first criminal provision in U.S. copyright law was added in 1897, which established a misdemeanor penalty for “unlawful performances and representations of copyrighted dramatic and musical compositions” if the violation had been “willful and for profit.”[11] Criminal copyright infringement requires that the infringer acted “for the purpose of commercial advantage or private financial gain." 17 U.S.C. § 506(a).[12] To establish criminal liability, the prosecutor must first show the basic elements of copyright infringement: ownership of a valid copyright, and the violation of one or more of the copyright holder’s exclusive rights. The government must then establish that defendant willfully infringed or, in other words, possessed the necessary mens rea. Misdemeanor infringement has a very low threshold in terms of number of copies and the value of the infringed works.

Main article: Criminal Copyright Law in the United States

Online intermediary liability

Whether Internet intermediaries are liable for copyright infringement by their users is a subject of debate and court cases in a number of countries.[13]

Definition of intermediary

Internet intermediaries were formerly understood to be internet service providers (ISPs). However, questions of liability have also emerged in relation to other Internet infrastructure intermediaries, including Internet backbone providers, cable companies and mobile communications providers.[14]

In addition, intermediaries are now also generally understood to include Internet portals, software and games providers, those providing virtual information such as interactive forums and comment facilities with or without a moderation system, aggregators, universities, libraries and archives, web search engines, chat rooms, web blogs, mailing lists, and any website which provides access to third party content through, for example, hyperlinks, a crucial element of the World Wide Web.

Litigation and legislation

Early court cases focused on the liability of Internet service providers (ISPs) for hosting, transmitting or publishing user-supplied content that could be actioned under civil or criminal law, such as libel, defamation, or pornography.[15] As different content was considered in different legal systems, and in the absence of common definitions for "ISPs," "bulletin boards" or "online publishers," early law on online intermediaries' liability varied widely from country to country. The first laws on online intermediaries' liability were passed from the mid-1990s onwards.[citation needed]

The debate has shifted away from questions about liability for specific content, including that which may infringe copyright, towards whether online intermediaries should be generally responsible for content accessible through their services or infrastructure.[16]

The U.S. Digital Millennium Copyright Act (1998) and the European E-Commerce Directive (2000) provide online intermediaries with limited statutory immunity from liability for copyright infringement. Online intermediaries hosting content that infringes copyright are not liable, so long as they do not know about it and take actions once the infringing content is brought to their attention. In U.S. law this is characterized as "safe harbor" provisions, and in European law as the "mere conduit" principle.

Peer-to-peer issues

Peer-to-peer file sharing intermediaries have been denied access to safe harbor provisions in relation to copyright infringement. Legal action against such intermediaries, such as Napster, are generally brought in relation to principles of secondary liability for copyright infringement, such as contributory liability and vicarious liability.[17]

Animation showing 7 remote computers exchanging data with an 8th (local) computer over a network.
The BitTorrent protocol: In this animation, the colored bars beneath all of the 7 clients in the upper region above represent the file, with each color representing an individual piece of the file. After the initial pieces transfer from the seed (large system at the bottom), the pieces are individually transferred from client to client. The original seeder only needs to send out one copy of the file for all the clients to receive a copy. To stop animation, click browser's Stop or hit ESC key.

These types of intermediaries do not host or transmit infringing content, themselves, but may be regarded in some courts as encouraging, enabling or facilitating infringement by users. These intermediaries may include the author, publishers and marketers of peer-to-peer networking software, and the websites that allow users to download such software. In the case of the BitTorrent protocol, intermediaries may include the torrent tracker and any websites or search engines which facilitate access to torrent files. Torrent files don't contain copyrighted content, but they may make reference to files that do, and they may point to trackers which coordinate the sharing of those files. Some torrent indexing and search sites, such as The Pirate Bay, now encourage the use of magnet links, instead of direct links to torrent files, creating another layer of indirection; using such links, torrent files are obtained from other peers, rather than from a particular website.

Since the late 1990s, copyright holders have taken legal actions against a number of peer-to-peer intermediaries, such as Napster, Grokster, eMule, SoulSeek, BitTorrent and Limewire, and case law on the liability of Internet service providers (ISPs) in relation to copyright infringement has emerged primarily in relation to these cases.[18]

Nevertheless, whether and to what degree any of these types of intermediaries have secondary liability is the subject of ongoing litigation. The decentralised structure of peer-to-peer networks, in particular, does not sit easily with existing laws on online intermediaries' liability. The BitTorrent protocol established an entirely decentralised network architecture in order to distribute large files effectively. Recent developments in peer-to-peer technology towards more complex network configurations are said to have been driven by a desire to avoid liability as intermediaries under existing laws.[19]

Sports

Sports is one of the more susceptible areas for online piracy because games are often unavailable outside the limited geographies where the sports team has a contract with a broadcaster. [20] This has led to heightened interest in piracy of live sports like college football, cricket, and other sports, particularly when users have no legitimate ability to purchase the content on the Internet.[21]

Countries where sharing files without profit is legal

Downloading copied music is legal in some countries in the context of the copyright, such as Canada,[22] The Netherlands,[23] Spain,[24] and Panama,[citation needed] provided that the songs are not sold. In Canada it is legal to download any copyrighted file as long as it is for noncommercial use, but it is illegal to distribute the copyrighted files (e.g. by uploading them to a P2P network).[25]

See also

For a substantial discussion of copyright infringement in the domain of computer programs, see copyright infringement of software.

  • Anti-Counterfeiting Trade Agreement (ACTA)
  • Anti-piracy
  • Bootleg recording
  • Center for Copyright Information
  • Copyfraud
  • Copyright, Designs and Patents Act 1988
  • Copyrighted content on file sharing networks
  • Digital rights management
  • Fair Use
  • Federation Against Copyright Theft (FACT)
  • IFPI (International Federation of the Phonographic Industry)
  • Intellectual property infringement in the People's Republic of China
  • Internet Privacy Act
  • Online Copyright Infringement Liability Limitation Act in the United States
  • Plagiarism
  • Radio music ripping
  • Telecoms Package (European Union)
  • Trade group efforts against file sharing
  • Warez
  • World Anti-Piracy Observatory (WAPO)
  • In re Aimster Copyright Litigation
  • The Pirate Bay

References

  1. ^ a b Dowling v. United States (1985), 473 U.S. 207, pp. 217–218.
  2. ^ T. Dekker. Wonderfull Yeare, 1603, reprinted by University of Oregon
  3. ^ a b Panethiere, Darrell (July – September 2005). "The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development". UNESO e-Copyright Bulletin. p. 2. http://portal.unesco.org/culture/en/f iles/28696/11513329261panethiere_en.p df/panethiere_en.pdf.
  4. ^ Panethiere, Darrell (July – September 2005). "The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development". UNESO e-Copyright Bulletin. p. 14. http://portal.unesco.org/culture/en/f iles/28696/11513329261panethiere_en.p df/panethiere_en.pdf.
  5. ^ a b c Correa, Carlos Maria; Li, Xuan (2009). Intellectual property enforcement: international perspectives. Edward Elgar Publishing. p. 208. ISBN 978-1-84844-663-2. 
  6. ^ Clough, Jonathan (2010). Principles of Cybercrime. Cambridge University Press. p. 221. ISBN 978-0-521-72812-6. 
  7. ^ a b c Correa, Carlos Maria; Li, Xuan (2009). Intellectual property enforcement: international perspectives. Edward Elgar Publishing. p. 211. ISBN 978-1-84844-663-2. 
  8. ^ "The Anti-Counterfeiting Trade Agreement – Summary of Key Elements Under Discussion" (pdf). transparency paper. Swiss federation of Intellectual Property. Status November 2009. https://www.ige.ch/fileadmin/user_upl oad/Juristische_Infos/e/transparency_ paper.pdf. Retrieved 8 June 2010.
  9. ^ McDonald, Paul, and Janet Wasko. The Contemporary Hollywood Film Industry. Malden, MA: Blackwell Pub., 2008. Print. p.202
  10. ^ McDonald, Paul, and Janet Wasko. The Contemporary Hollywood Film Industry. Malden, MA: Blackwell Pub., 2008. Print.p.203
  11. ^ Act of Jan. 6, 1897, ch. 4, 29 Stat. 481-82.
  12. ^ United States v. Wise, 550 f.2d 1180, 1186 (Ninth Circuit, 1962) (“Any act which is inconsistent with the exclusive rights of the copyright holder ... constitutes infringement”).
  13. ^ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 2. http://www.era.lib.ed.ac.uk/bitstream /1842/2305/1/wipo-onlineintermediarie s.pdf. Retrieved September 2010.
  14. ^ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). pp. 5–6. http://www.era.lib.ed.ac.uk/bitstream /1842/2305/1/wipo-onlineintermediarie s.pdf. Retrieved September 2010.
  15. ^ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 4. http://www.era.lib.ed.ac.uk/bitstream /1842/2305/1/wipo-onlineintermediarie s.pdf. Retrieved September 2010.
  16. ^ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 5. http://www.era.lib.ed.ac.uk/bitstream /1842/2305/1/wipo-onlineintermediarie s.pdf. Retrieved September 2010.
  17. ^ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 10. http://www.era.lib.ed.ac.uk/bitstream /1842/2305/1/wipo-onlineintermediarie s.pdf. Retrieved September 2010.
  18. ^ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 7. http://www.era.lib.ed.ac.uk/bitstream /1842/2305/1/wipo-onlineintermediarie s.pdf. Retrieved September 2010.
  19. ^ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 9. http://www.era.lib.ed.ac.uk/bitstream /1842/2305/1/wipo-onlineintermediarie s.pdf. Retrieved September 2010.
  20. ^ Ryan, P (2012). "College sports should hook ‘em online". Policy By the Numbers. Blogspot. http://policybythenumbers.blogspot.co m/2012/09/college-sports-should-hook- em-online.html. Retrieved September 9 2012.
  21. ^ Id.
  22. ^ "Your Interview: Michael Geist". Canadian Broadcasting Corporation. 2008-04-07. http://www.cbc.ca/news/yourinterview/ 2008/04/michael_geist.html.
  23. ^ Van Der Sar, Ernesto. "Dutch Parliament: Downloading Movies and Music Will Stay Legal". TorrentFreak. http://torrentfreak.com/dutch-parliam ent-downloading-movies-and-music-will -stay-legal-111224/. Retrieved 16 August 2012.
  24. ^ "La red P2P es legal" (pdf). http://www.bufetalmeida.com/upload/fi le/sentenciaelrincondejesus.pdf. Retrieved May 2011.
  25. ^ "Canada deems P2P downloading legal". CNET News. 2003-12-12. Retrieved 2012-12-27. 

Further reading

  • Johns, Adrian: Piracy. The Intellectual Property Wars from Gutenberg to Gates. The University of Chicago Press, 2009, ISBN 978-0-226-40118-8
  • Rosen, Ronald (2008). Music and Copyright. Oxford Oxfordshire: Oxford University Press. ISBN 0-19-533836-7. 
  • Joe Karaganis, ed. (2011). Media Piracy in Emerging Economies. Social Science Research Council. ISBN 978-0-9841257-4-6. 

External links

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