Copyright Law in the Digital Era


With the advent of the information age, the courts have been flooded with new copyright issues. New technologies and mediums have created a number of novel issues related to copyright law. New digital and multimedia technologies such as CDs and DVDs have greatly expanded the scope of copyright law.

Encryption and decryption technologies, advanced digital copying and editing technologies, reverse engineering, and the Internet, have facilitated the copying, modification, and distribution of copyrighted digital and non-digital works. Individuals and businesses are now able produce perfect digital reproductions of copyrighted works and distribute them on a massive scale. Additionally, such technologies have enabled businesses and individuals to edit or alter copyrighted works to suit their own tastes – examples include colorization of B&W movies or deletion of objectionable content. The Internet has also created several new copyright issues. Website hyper-linking, deep-linking, and website framing have become common practices on the World Wide Web despite potential copyright and other legal issues.

Such developments have created a storm debate and widespread litigation, involving issues of copyright infringement, contributory infringement, and fair use.

In addition to infringement concerns, new mediums and multimedia technologies have created a host of other copyright issues involving licensing, authorship, work for hire, and compilation copyright issues. For example, new digital mediums such as the Internet and new multimedia formats such as DVDs may contain a number of separately copyrightable materials such as a video, music, sound, animation, graphics, photographs, text, interactive features, computer programs, and games, creating complex copyright, ownership, and licensing issues and disputes. Additionally, disputes may arise when older copyrighted and/or licensed material is merged into new unanticipated mediums - such as when a motion picture film is remastered and digitized and transferred to a DVD.

Hoping to address some of the issues brought about by new technology, Congress enacted the Digital Millennium Copyright Act. However, the law has not quelled the flood of copyright litigation and has created uproar from fair use advocates.

Basic Copyright FAQs

What is Copyright?
The United States Copyright Act provides protection to authors for “original works of authorship,” including literary, artistic, musical, dramatic, and certain other intellectual works. Copyright protection gives the copyright owner the exclusive right to reproduce the work, distribute copies of the work, publicly display the work, and create derivative works (similar versions of the work). Violation of these rights may give rise to civil and criminal liabilities.

A copyright owner's rights however are not absolute – they may be limited by the doctrine of fair use, which allows others to reproduce, display, or create derivative in limited cases. For example, in certain case, a party may be allowed to have limited use of another's copyrighted work for the purpose of education, review, criticism, or parody. (See below for more on fair use). Also, independently created works that are similar or even identical are not subject to copyright infringement. Some types of copyrighted work may also carry a compulsory license which requires the copyright holder to license certain types of works.

Copyright protection extends to both published and unpublished works, although certain registration requirements (such as depositing a copy or specimen of the work to the U.S. Copyright Office) exist for published works. Published works may also effect the limitations on the exclusive rights of the copyright holder.

What Types of Works Can Be Protected by Copyright?
Copyright law protects a wide range of creative works. To receive the protection a work must be an original work of authorship and be fixed in a tangible form of expression (e.g recorded in some format that can be perceived). Copyright protection does not extend to ideas or concepts, but rather on the particular expression of the idea.

Examples of copyrightable works include:

  • Literary works (e.g. novels, short stories, poems, plays, and screenplays)
  • Musical works, including accompanying words (e.g. sheet music and audio recordings)
  • Audio or Sound Recording
  • Visual Works (pictorial, graphic, or sculptural works such as drawings, paintings, mobiles, photographs, sculptures, and computer graphics)
  • Audio-visual works (e.g. video and motion pictures)
  • Computer programs (including the computer program code)
  • Architectural works (including blueprints and models)
  • Dramatic works
  • Choreography
  • Mask Works (i.e. semiconductor chip designs)
  • Compilation works, including databases

The following types of works may not receive copyright protection: titles, names, short phrases, slogans, descriptions, ingredient lists, recipes, ideas, procedures, methods, systems, processes, concepts, principles, discoveries, and works already in the public domain and devoid of any original authorship.

Compilation Copyrights
In some cases, a collection of copyrighted works or un-copyrightable material may receive a compilation copyright protection. A compilation is defined as a “collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship” are protectable. Examples of a compilation are an anthology of other authors' copyrighted works or a database of facts. However, the copyright protection for a compilation extends only to the compilation itself, and not to the underlying materials or data. Moreover, copyrighted materials contained in a compilation belong to their respective copyright owners.

How Do I Copyright My Work?
One common misconception is the author or owner of a copyrightable work must register the work with the U.S. Copyright Office to receive copyright protection or that the work must bear a copyright notice and symbol “©”. Contrary to popular belief, copyright protection attaches as soon as the work is “fixed” in a “tangible” format (i.e. as soon as it is recorded or written down) – the author or copyright owner need not register the work or provide a copyright notice. However, registration of a copyrightable work with the U.S. Copyright Office and providing a copyright notice on the work does provide advantages to the copyright owner.

What is a Work for Hire?
The copyright owner is typically the author of the work (the person who created the work) except in cases where the work is created as a “work made for hire”. Copyright law defines a “work for made hire” as “a work prepared by an employee within the scope of his or her employment” or “a work specially ordered or commissioned” if “the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire”.

A copyright owner may transfer ownership of the copyright to another person or entity. A copyright owner can also license exclusively or nonexclusively any of their rights in the work.

Do I need to use the “©” symbol to protect my works?
Copyright notice is no longer required for protection. Copyright notice was required under the Copyright Act of 1978, but the requirement was eliminated when the United States became a signatory of the Berne Convention. Nevertheless, providing a copyright notice on copyrighted work does provide advantages to the copyright holder.

On a practical level, a copyright notice informs people that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. A copyright notice also provides the copyright owner certain legal advantages in a copyright infringement case – the most significant advantage being that a defendant cannot argue “innocent infringement” to avoid certain statutory damages.

A copyright notice should contain the following three elements: 1) the copyright symbol “©” or the word “copyright” 2) the first year of publication, and 3) the name of the copyright owner. For example: “© 2003 Jane Doe”. The requirement for audio recording is slightly different – instead of the “©” symbol, audio recordings should carry the symbol “(p)” with the first year of publication and the name of the copyright owner.

How long are copyrighted works protected?
How long a copyrighted work will receive copyright protection depends on several factors, including when the work was created or published.

Works created (fixed in a tangible format) on or after January 1, 1978 are typically protected for the life of the author plus an additional 70 years. For works that are “works for hire” or anonymous works, protection typically extends for 95 years from date of publication or 120 years from date of creation, whichever is shorter.

For works that are created before January 1, 1978 but not published or registered by that date, copyright protection also typically extends for the author's life plus 70 years or in the case of “work for hire” or “anonymous” the shorter of 95 years from date of publication or 120 years from date of creation. However, the Copyright statute provides that in no case will copyright protection for works that fall into this category expire prior to December 31, 2002; and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.

What is Fair Use?
Copyright rights and protections are limited by the fair use doctrine as defined in the Copyright Act. The Fair use provision was intended as a safe harbor to encourage and protect certain desirable activities such as criticism, education, and news. There are four factors considered in determining whether unauthorized use of a copyrighted work will be protected under the fair use doctrine. The first factor is the purpose and character of the use, including whether the use is for commercial, non-commercial, or non-profit educational use. A work that is used for non-commercial, non-profit, or educational purposes will favor a finding of fair use. Moreover, use of copyrighted material for news, commentary, or criticism will also favor a finding of fair use. Courts have also protected parodies of copyrighted works under the fair use doctrine.

The second factor is the nature of the copyrighted work – certain highly creative or imaginative works such as a novel or original drawing will receive greater protection, whereas less original or creative works such as compilation work will more likely favor a finding of fair use.

The third factor is the amount and extent of borrowing or use of copyrighted material – the more material used or borrowed from copyrighted work the less likely fair use will apply. For example, reproducing 3 pages from a 500 page novel for the purpose of book review will favor a finding or fair use, whereas the reproduction of 100 pages of the same novel will not favor a finding of fair use.

The fourth factor considered in determining whether unauthorized use or reproduction of a copyrighted material qualifies for fair use protection is the effect of the use upon the potential market for or value of the copyrighted work. That is to say, the more likely the unauthorized use is likely to negatively impact the market for or the value of the copyrighted work, the less likely there will be a finding of fair use.

All four factors are carefully considered together and balanced against one another – there is no magic formula to determine whether an unauthorized use will qualify under the fair use doctrine. Also, it is important to note that fair use is an affirmative defense, meaning that the burden of proof is on the defendant (the party accused of infringement) to show that their use of the copyrighted material qualifies as fair use.

The Digital Millennium Copyright Act
On October 28, 1998, the Digital Millennium Copyright Act (DCMA) was signed into law. The goal of the new law was to update U.S. Copyright law to reflect many of the rapid technological developments in the new digital era such as the Internet, new digital mediums, and encryption and decryption technologies. Among various new provisions, the DCMA provides stronger protections for phonograph and performance copyrights. The DCMA also has provisions regarding copyright anti-circumvention technologies. Additionally, the DCMA created limitations on the liability for online service providers for contributory copyright infringement. The DCMA also contains various provisions covering distance learning, library recordings, and webcasting. Organizations such as the Motion Picture Association of America (MPAA) and the Recording Industry Association of America have lauded the new law, whereas critics, academics, and fair use advocates have complained that the law runs afoul of Constitution.

Copyright Law & Litigation On the Internet

Online Piracy
The Internet and digital technology has allowed a variety of copyrighted material such as audio recordings, movies, photography, software, and literary and graphic works to be copied, modified, and distributed on a massive scale.

Widespread online copyright piracy has prompted major studios and trade organizations such as the Recording Industry Association of America to file suits against both companies and individuals.

Napster, an online directory that enabled Internet users to copy, trade and distribute copyrighted materials such as music files over the Internet, was the subject of fierce litigation, eventually resulting in the demise of Napster.

The death of Napster however was only a temporary victory for copyright holders. Newer online peer-to-peer file sharing services such as KaZaA and Gnutella which allow individuals to directly transfer copyrighted materials such as music files to one another over the Internet have made policing and enforcing copyright much harder. Such peer-to-peer file sharing services have prompted the music and entertainment industries to become even more aggressive in their efforts.

Linking & Framing
The Internet has also raised novel issues such as hyper-linking and framing. A link is a connection between the content of two different files. A link may lead either to another file in the same web site, or to a file on a different computer located elsewhere on the Internet. In most cases providing a link to another website raising little or no legal issues – in most cases, providing a link to another website is analogous to providing simply providing an address which the user can use to visit that website. The World Wide Web is built on and depends on linking.

However, some types of linking can raise serious copyright and trademark issues. For example one type of linking, called in-line linking, is a means by which the author/owner of a webpage incorporates into their own webpage copyrighted materials (such as graphic files) taken from another person's website or server (via a link). In such cases, the linking web site owner is essentially using and displaying copyrighted material belonging to another person or entity on their website without permission of the rightful copyright owner. Another instance where linking can lead to copyright infringement is when a website links to a website that contains infringing material – in such cases, the linking party may be liable for contributory copyright infringement.

Another practice, called framing, is a technique whereby a webpage is divided into two or more sections with each frame displaying live content from other non-affiliated webpages, but ostensibly appearing to the Internet user as single webpage. Framing of another person's webpage material may raise copyright issues. Framing may also raise trademark issues such as passing-off, where the viewer of the webpage is misled as to the source of the webpage's content.

Contributory Copyright Infringement
Internet Service Providers (ISP) and website hosts may be held liable for copyright infringement even if they do not directly participate in the copying or distribution of copyrighted material.

Under Copyright law a party may be held liable for infringement if they cause or contribute to the infringing conduct of another with knowledge of the other party's infringing activities. This typically occurs when a copyright owner notifies the ISP of infringing activity and the ISP fails to do anything.

Additionally, a party may also be liable for the infringing activities of another, even without knowledge, if the party has the right and ability to control the infringer's acts and receives a direct financial benefit from the infringement.

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