Digital Copyright Law - What to Know
by Jeffrey L. Michelman
The struggle to enforce copyright laws in the digital age continues to be a battle between content owners and businesses intentionally or inadvertently using the content without permission. For example, news stories are filled with stories of the litigation between the recording industry and the 35-million computer users who download music files online. But there are many other dangers that can arise from the use of copyrighted content for a company’s websites or other Internet activity.
History
Copyright is a form of intellectual property protection afforded to the authors of original works of authorship including literary, dramatic, musical, artistic, architectural and certain other works, whether published or not. Once a work is created, the work is protected for the life of the author plus 70 years.
Six years ago, the Walt Disney Company pulled off a nifty legal heist. Disney’s copyright on Mickey Mouse—who had his screen debut in “Steamboat Willie,” in 1928—was due to expire in 2003. The rights to Pluto, Goofy, and Donald Duck were to expire a few years later. This spelled trouble for Disney. But, after some aggressive lobbying and well-targeted campaign contributions from Disney and others, the threat was quashed: Congress quietly passed the so-called Sonny Bono Act, which extended all copyrights for twenty more years and kept Mickey out of the public domain.
However, it is important to remember that the absence of a copyright registration does not mean that it is alright to copy the work. Any original work fixed in a tangible medium is automatically protected by copyright regardless of whether any copyright formalities have been exercised. Copyrighted works on the “Net” include everything from news stories, software and email to music, novels, screenplays, video graphics and pictures. The abundance of copyrighted works and the ease of copying put the hapless company web designer in great peril.
Liability
There are three types of liability for copyright infringement: direct, vicarious and contributory. A defendant is directly liable for copyright infringement if the plaintiff proves that he has a valid copyright, the copyright was infringed, and the defendant copied the work. Direct copyright infringement is a strict liability offense; intent or knowledge is not required. A defendant is liable under the theory of contributory infringement when the defendant knowingly induces, causes, or materially contributes to the infringing conduct. Finally, vicarious liability represents the proposition that liability occurs when the defendant has a financial interest in the activity causing the infringement as well as supervisory right and opportunity over the action causing the infringement, for example, the right and ability to control what is posted on a website.
What Is Protected On The Internet?
Unfortunately, there is no easy answer to this question. However, it is safe to say that original text, graphics, audio, video, HTML code and all other unique elements that make up the original nature of the material are protected by copyright laws.
Browsing
Browsing the Internet is an activity shielded from legal liability. “Browsing” refers only to the act of viewing a web page and does not include printing or saving the content of the viewed web page. Even when an unauthorized copy of a work has been created and is available for viewing on the Internet, it is not the person who privately views the copy, but the person who provided the unauthorized copy for viewing on the Internet who is liable for copyright infringement.
Linking
A link can be considered a virtual button that allows a web surfer to be transported, at the click of a mouse, to another site without having to key in the site address. One might think that just providing a link to another web page could not possibly violate copyright laws. Think again.
While basic linking has not yet been found to constitute infringement, the easy way to avoid the potential for infringement is simply to obtain permission to create the link. Most likely the web page owner will be happy to share his or her link, as that means that the site will have more visitors. However, “deep” linking (when a link bypasses a third parties’ home page and advertisements and goes to a specific page(s) directly) and “framing” (if a third parties’ site content is encapsulated in another site (i.e., the user cannot tell that they are actually looking at a third parties’ site and believe they are still on a different site) can be actionable.
Obtaining permission to create a basic link is often as simple as sending an email to the webmaster of the site for which a link is desired. Permission for deep links or frames may be more difficult to obtain. While formal linking agreements are sometimes created, a back-and-forth exchange of emails giving permission for the link will also suffice. Just remember to get permission in writing and keep a tangible copy of the agreement in a file cabinet in case a dispute arises.
Photographs, Graphics And Text
When copying works from whatever medium—Internet, book, magazine, newspaper—and scan or type the material into the computer, one must obtain permission from the copyright holder in order to reproduce the copyrighted work. One possible solution is to use commercial clip art that can be purchased and comes with warranties against copyright infringement. However, if an individual or organization creates an original photograph, musical opus or literary work, the work belongs to that individual or organization and they own the copyright. (Note: An organization should make sure to obtain a work-for-hire agreement from employees and independent contractors, if they are creating works, to avoid ownership disputes.) Be sure to obtain a “model release” from people in photographs before posting the photographs on the Internet.
Downloading Music
When music is used in conjunction with visual works, the music is considered to be synchronized with the visual works. In order to incorporate music into a website, one must contact the copyright owner of the work or the Harry Fox Agency to negotiate and obtain a synchronization license to use copyrighted music on a website. Downloading music is a separate issue. If you allow your employees to engage in online piracy of music, your company can be liable as a contributory infringer. Just as ominous, some of the world’s biggest record companies, facing rampant online piracy, are quietly financing the development and testing of software programs that would sabotage the computers and Internet connections of people who download pirated music, according to industry executives.
Who Needs Copyright? This Is Fair Use
In some rare instances, copyrighted material can be used without permission. The fair use exemptions to U.S. copyright law were created to allow for use of copyrighted works for commentary, parody, news reporting and research without having to obtain the author’s permission. If applicable, the fair use doctrine provides a complete defense to otherwise unlawful copyright violations. Consult counsel to determine if a use is fair.
However, fair use can raise some of the most difficult and controversial issues in copyright law. Users often wish there were clear rules to establish exactly when a use is fair and when it is not. But the ambiguity of the fair use doctrine is also its strength, because it allows courts to apply fair use to new and sometimes completely unanticipated uses of copyrighted works.
Copyright owners have certain exclusive rights, in particular the right to copy their work and to create adaptations based on the original. Those rights are not absolute, however. The law provides exceptions to permit various uses without the copyright owner’s consent. Perhaps the best known is fair use, a flexible exception that allows reasonable uses that will not unduly harm the market for the original copyrighted work.
What makes a use “fair”? There is no simple formula. Some uses are favored in the law. They include criticism, comment, news reporting, teaching—including making multiple copies for classroom use, scholarship, and research. But these uses are not automatically deemed fair, nor are other uses automatically deemed unfair. Fair use depends on the facts of a particular case.
Conclusion
The laws relating to copyright on the Internet are much like the Internet, newly developing, changing rapidly, increasing explosively and reacting to customer demand. Tread carefully, as there are no certainties on the Internet. Ask permission to copy from and link to other sites, and make sure content is owned by or licensed from the proper parties. The safest course of action is to contact an intellectual property attorney to review a website for any potential infringing content.
Post a comment