Copyright Infringement

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 Under the Canadian copyright act any published or unpublished original work upon creation will receive automatic copyright protection.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?4. 1 Barber, Hoyt and Logan, Robert. Protect Your Intellectual Property ( Toronto: Productive Publications) p. 5

2 Ibid, p. 12

3 Goldstein, Paul Copyright?s Highway, (New York: HarperCollins CanadaLtd) p. 145

4Ibid, p. 6

Bibliography

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. 1