Copyright Protection
A copyright is the right to produce, reproduce,
and transform any original work.
Copyrights are only given to original
works that fall under the "following
seven categories: Literary works,
Musical works including accompanying any
works, Dramatic works including
accompanying music, Choreographic works,
Graphical and sculptural works,
Motion pictures and other audiovisual works,
Sound recordings, and
Architectural works"1. Under the Canadian copyright act
any published or
unpublished original work upon creation will receive automatic
copyright
protection. Though automatic copyright protection is given to original
works
the benefits of having one’s copyright registered (Copyright
Registration
Application: Page 8 & 9) with the Canadian Intellectual
Property
Office (C.I.P.O) is that one receives a certificate of registration
which can
be used to one’s advantage in the event of infringement and prove
of
ownership in a court law. When any production, reproduction,
transformation of a
work is gone without the permission of the owner of a
copyrighted work this
becomes copyright infringement. In cases of copyright
infringement the
responsibility to report this infringement rests on the
owner of the copyrighted
work however the Copyright Act does contain criminal
remedies, which apply to
certain types of serious infringement or piracy. The
function of copyright laws
in our society today are particularly stringent on
copyright infringement and
these laws ought to be reformed to decrease the
amount of congestion in civil
litigation surrounding copyright infringement
in our legal system. Copyright
laws beginnings started close to three
centuries ago. When first implemented its
sole function was to prevent exact
replications of written work. During the mid
1800’s, the publishers of
the eighteenth-century poet James Thomson’s "The
Seasons" regularly sued
producers of unauthorized, or pirated, editions of the
popular poem, since
the publishers obtained the copyrights from James Thomson.
This was the
beginning of the extension of rights given to copyright
owners.
Eventually the function of the copyrights broadened to include
control over
transformation, publication, imitation and unauthorized usage of
an original
work. Even when copyrights are transferred from one owner to
another the
original copyright owner has what is called "moral rights being
that any
changes to an original work being modification, distortion,
mutilation without
the permission of the original author is infringing on the
original author’s
moral rights". 2 The intention of copyrights is based on
the fundamental
principle of the necessity to protect all original
intellectual property that
fall under the following categories: Literary
works, Musical works including
accompanying any works, Dramatic works
including accompanying music,
Choreographic works, Graphical and
sculptural works, Motion pictures and other
audiovisual works, Sound
recordings, and Architectural works. However the
intention of copyright law
has become particularly stringent since its
inception. With the multitude of
rights and privileges given to authors and
copyright owners of original works
the potential for negligence and compliancy
toward informing licensees can
occur with the final outcome of this situation
being civil litigation.
Negligence and compliancy can occur by the author or
copyright owner by
misrepresenting their work as being copyrighted, by labeling
their work with
the copyright symbol implying that they are the recognized owner
or author
but in actuality the duration of the work has expired therefore the
work has
entered public domain. Duration of most copyrighted works lasts for 50
years
since the inception of the copyrighted work. In the case of Tams-Witmark
v.
New Opera Co., an opera company purchased the right to perform the
comic
opera "The Merry Widow" for $50,000 a year. After a little more-than a
year
of performances, the opera company discovered that the supposed
copyrighted work
had entered public domain several years before due to the
failure of the
copyright owner to renew the copyright. New Opera Co. then
ceased paying
royalties, and after being sued by the owner of the abandoned
copyright,
counterclaimed for damages in the amount paid to the owner on a
breach of
warranty. The trial awarded the opera company $50, 500 in damages,
and the court
of appeals affirmed the judgment, finding that "The Merry
Widow" "passed,
finally, completely and forever into public domain and became
freely available
to the unrestricted use of anyone". This judgment by the New
York Courts of
Appeals strongly supported the position that when the
warranty of title to a
copyright is breached because the work is in the
public domain, the alleged
copyright holder must provide restitution of any
payment made by the licensee.
Though this decision protects licensees of
paying bogus royalties for supposed
licensing rights and being able to
receive restitution for spurious payments but
until copyright infringement
laws become less stringent and provide and greater
protection to licensees
then the negligence of copyright owners will still exist
and still congest
the legal system with civil litigation. The issue of parody is
one focal
point to consider in the stringency of Canadian copyright laws. Parody
under
the Canadian copyright act is vaguely mentioned and is particularly
stringent
on copyright laws and is a model example of the stringency of
Canadian
copyright laws comparatively to the United States copyright laws.
Parody or
parodies falls under the issue of fair dealing under both the
Canadian copyright
act and the U.S copyright act. Under the Canadian
copyright act parodies or
criticism fall under section 27 stating that "The
following acts do not
constitute an infringement of copyright: any fair
dealing with any work for the
purposes of private study or research; any fair
dealing with any works for the
purposes of criticism, review or newspaper
summary, if the source, and the
author's name, if given in the source". Under
section 107 of the U.S copyright
act it states "fair use of a copyrighted
work, including such use by
reproduction in copies or phonorecords or by any
other means specified by that
section, for purposes such as criticism,
comment, news reporting, teaching
(including multiple copies for classroom
use), scholarship, or research, is not
an infringement of copyright. In
determining whether the use made of a work in
any particular case is a fair
use the factors to be considered shall include -
(1) the purpose and
character of the use, including whether such use is of a
commercial nature or
is for nonprofit educational purposes; (2) the nature of
the copyrighted
work; (3) the amount and substantiality of the portion used in
relation to
the copyrighted work as a whole; and (4) the effect of the use upon
the
potential market for or value of the copyrighted work. The fact that a
work
is unpublished shall not itself bar a finding of fair use if such
finding is
made upon consideration of all the above factors". Section 27 of
the Canadian
copyright act is comparatively more stringent then the U.S
copyright act on fair
dealing of parodies and the Canadian copyright act does
not consider other
factors involved in fair dealing such as the U.S.
copyright act does. In the
case of MCA Canada Ltd – MCA Canada Ltee v.
Gilberny and Hawke Advertising,
where an advertising agency prepared a parody
of the words "Downtown" and
used it for radio advertising purposes in Ottawa,
it was held to violate MCA
Canada’s copyright had this case been under U.S
jurisdiction the case could
have been found not to violate the copyright
because of the natured copyrighted
work and the parody being completely two
different forms of expression one being
a dramatic work another being a sound
recorded work. Another consideration if
this case had been in U.S
jurisdiction is that the parody is a derivative work
and that the portion of
the derivative work is not substantial of the original
copyrighted work. On
the other side of the argument is that even if this case
were held under U.S
jurisdiction it would have still resulted in the same
judgment. One
consideration to promote this argument is that the derivative work
would be
held to violate the original copyrighted work because the purpose of
the
parody or derivative work was for commercial use to facilitate
the
advertising agency into being able to reap financial gain. Another
contributing
factor to promote this argument is the effect of the parody or
derivative work
on the original copyrighted work if the derivative work or
the parody was found
to have drastic impact on the original copyrighted work
then this final
consideration would result in the same judgment as in the
Canadian jurisdiction.
Though in this example the case could result
either way under the U.S copyright
act still comparatively to the Canadian
copyright act the U.S copyright act
provides greater clarity on the copyright
doctrine of fair dealing and because
of the vagueness of the doctrine of fair
dealing in the Canadian copyright act
the Canadian copyright act becomes more
stringent on copyright laws. The U.S
copyright act is significantly less
stringent on the issue of parody than
Canadian copyright act because of
the poor interpretation of the copyright
doctrine of fair dealing in the
Canadian copyright act. The issue of copyright
infringement and the Internet
is one key illustration of the stringency of
copyright infringement. The
function of copyrights is the protection of
intellectual property of
copyright owners or authors in the physical world being
that the
responsibility rest on the copyright owner or author unless in the case
of
serious copyright infringement or piracy. The Internet is a digital nexus
of
information and to apply current stringent copyright laws to the Internet
is
heading toward disaster being that copyrighted works can be passed along
without
ever taking a transitional physical form and the vast magnitude of
the Internet
makes it near impossible to enforce copyright infringement.
Recognizing the
inherent difficulty of enforcing copyrights against
individual Internet users,
legal action has been taken against Internet
Service Providers (ISPs) for legal
liability for copyright infringement on
those who allow and enable Internet
copyright pirates to exist, namely the
ISPs. Those who take legal action argue
that ISPs profit from the pirates’
use of the Internet, and in comparison to
an independent publisher or author,
an ISP is in a much better position to
police how its subscribers use the
Internet. On the other side of the argument,
ISPs claim that they are
passive carriers similar to telecommunications
companies and therefore should
be granted some limitation from copyright
infringement liability. There are
two forms of copyright infringement
surrounding this issue: direct copyright
infringement and secondary copyright
infringement. Secondary copyright
infringement is again subdivided into two
categories: contributory and
vicarious copyright infringement. Secondary
copyright infringement is applied
in instances in which the defendant did not
personally engage in the
violating activity but still bears some responsibility
for the infringement.
A defendant is liable for "contributory copyright
infringement if with
knowledge of the infringing activity, induces, causes or
materially
contributes to the infringing conduct of another."3 A defendant is
liable for
vicarious copyright infringement where the defendant has the right
and
ability to control or police the infringer’s acts and receives a
direct
financial benefit from the infringement. In the case of Playboy
Enterprises Inc.
v. Frena , the defendant was an operator of a computer
bulletin board service
that, unknown to the defendant, distributed
unauthorized copies of Playboy
Enterprises, Inc.’s (PEI) copyrighted
photographs. For a fee, anyone with an
appropriately equipped computer could
log onto the BBS, browse through different
BBS directories to look at the
pictures, download the high quality computerized
copies of the photographs,
and then store the images onto their home computer.
Frena admitted that
the materials were displayed on the BBS and that he never
received consent
from Playboy. However, Frena argued that he did not personally
upload any of
the infringing pictures onto the BBS (his subscribers had uploaded
the
images) and that he removed the infringing pictures, as soon he was
made
aware of the matter. In this case there was no question that Playboy
owned the
copyrights on the photographs due to the fact that at trial, Frena
had offered
no evidence to rebuff Playboy’s copyright documentation. The only
remaining
issue was whether the defendant’s actions implicated one of the
copyright
holders exclusive rights. The court held that Frena’s actions had
infringed
Playboy’s exclusive right to display the works. The court held
that there was
no question that Frena supplied a product containing
unauthorized copies of a
copyrighted work. As for display rights, the court
held that Frena’s display
of the copyrighted materials to his subscribers
constituted a public display
even though his subscribers were limited in
number. Frena defended his use as
within the scope of the fair use exception
to copyright infringement. His
argument, however, fell on deaf ears. The
court found that Frena’s actions
were commercial in nature and of the sort
that if they were to become widespread
would result in a substantially
adverse impact on the potential market for or
value of the plaintiff’s work
and therefore were not within the fair use
exception. Though the Copyright
Act was effective in providing clarification on
this case. The problem in
general is the liability of Internet Service Providers
has not been clearly
established and the enforcement of the law remains a
problem. In this issue
the stringency of traditional copyright laws are
inherently difficult to be
applicable to this new technology because of the
scale of the Internet. The
basis of Copyright laws is on the fundamental notion
of protection of
intellectual property. This fundamental notion of protection of
intellectual
property serves a broader purpose today then ever before, as it is
a moral,
social, and economic barrier to infringe on the owner’s of original
works.
This fundamental concept of protection of intellectual property has
become
distorted to the point where the fundamental principles of copyrights
have
been abandoned by our society. This epidemic of copyright civil litigation
in
our legal system becomes that "when copyrights give control to one person,
it
extracts some measure of freedom to imitate from everyone
else"
Bibliography
New York: Hill and Wing, 1994 Barber, Hoyt, and
Logan, Robert. Protect Your
Intellectual Property. Toronto: Productive
Publications, 1999 Industry Canada. A
guide to Copyrights, Ottawa: Canadian
Cataloguing in Publication Data, 1994
Wright, Amy and McDaniel, Jeff.
Recent Developments in Copyright Law, Texas:
Texas Intellectual Property
Law Journal, fall 1995, Volume 4, No.
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