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This article titled ‘Copyright in the USA.’ is written by Adv. Nikita Pandit and discusses the law related to copyright in the USA.
Copyright is a bundle of rights and it is a type of intellectual property given to the authors of the creative works. Rights under Copyright in the USA has its source in the Constitution of the USA in its Article 1 Section 8 clause 8 where the constitution has given the power to the Congress to undertake any such acts which are necessary for promoting the progress in the fields of science and useful arts by giving time-bound exclusive rights to the author or the creators of such works. Copyright ensures protection to the works of the authors of artistic and dramatic works.
II. Legislative provisions
The protection to the copyrighted work is provided by Title 17 of the US Code which was incorporated in the year 1947 to form a part of this code.
The First legislation passed for copyright protection was the Copyright Act of 1909 to consolidate and amend the copyright law in the USA. It provided the exclusive rights to the author of the work such as the right to copy, reprint the work, publish it, translate it, adapt in another form. Several rights were included such as in TV shows, sounds, and movies under the umbrella of copyright.
The USA was a member of various international conventions and in order to comply with the minimum standards of protection offered by these conventions, especially the Universal Copyrights Convention, the USA came up with a Copyright act of 1976.
This Act of 1976 provided the basic structure of the substantial law of the copyright. Then, in order to compete with the advancement in technology, the USA passed the Digital Millenium Copyright Act, 1998. The main purpose was to encourage more publishing in the digital form and to ensure that the work which is published online on the internet has adequate protection. It also ensured that the standards of the WIPO Copyright Treaty and WIPO Performance and Phonogram Treaty were incorporated in the copyright law.
III. What is protected?
Copyright protection is given to the work which is in some tangible form, which means there is no protection given to just the ideas if they are not put down in a graphical form. Such expression of ideas in the form of words, notations, videos, photographs, symbols, or any other medium can be copyrighted.
Section 102 of the US Code – Copyrightable Work:– Literary, Dramatic, Cinematographs, Graphics, Sculptures, Sounds and Architectural Works.
Section 103 provides protection to the Derivative work and compilations. A derivative work is one that is taken from the works that are already in existence. Eg:- movies made from the plays, remix of music that is already copyrighted, a statue that is made from the sketch on the paper, etc.
The compilation is putting together information. The compilation must be done by using one’s mind in selecting which information to put together from a vast pool of information and its arrangement must be made in such a way that it results in new creative work.
Example:- book of photos which are already copyrighted – they are selected using the mind and skill and are arranged in a new manner like categorizing into wildlife, landscapes, and portraits and so on.
Example:- Journal having the articles of various writers.
Copyright is the protection given to the authors of the original works for a period of the lifetime of the author and another 70 years after the death of the author.
In the case of joint work, 70 years after the death of the last surviving author.
The initial ownership is considered to be of the author of the work. In case a person is in the employment of a person and works for hire, his employer will have the ownership of copyright. Copyright can be transferred by conveyance such as license or sale or it may devolve on the successors after the death of the owner.
The main requirements for copyright are: (a) Original Work, (b) in some tangible form.
Now the term “original” is used in a very general form because original is a relative concept and depends on cases. It will change depending upon the cases. So it cannot be defined as such. In order to understand the concept of originality, the case laws prove to be an effective way.
IV. The Landmark cases in the US
Feist Publications Inc. v. Rural Telephone Services- Inc., 499 U.S. 340 (1991).
Rural published the telephone directory having white pages and yellow pages. Feist covered a wider area than Rural and wished to get some part of their directory on the license. However, Rural denied the license to them, so Fiest extracted that part without Rural’s Consent. This was the case of compilation.
The court held that the publication by Rural was raw data and contained facts. And such work is not copyrightable. It had no creativity in it. Selection of information was a necessary criterion or originality and the same was not fulfilled by Rural. So arranging the names alphabetically is not creative and hence there was no question of copyright.
Another condition is that the work should be in some tangible form. This means it should be expressed in some medium like on paper or in a movie. It can also be expressed by the use of a machine or a device like a computer monitor.
White-Smith Publishing Co. v. Apollo Co.- 209 U.S. 1 (1908)
The court held that the provision of copyright depends upon the fact that it has been expressed by some medium. There is no distinction made between different mediums, it should be expressed in some form. It can be in the forms of words, symbols, notations or otherwise. It can be a print or a photograph, or notations, sounds and the like. It should be on some physical medium.
Section 106 and 106A provide for the Rights given to the copyright owner. The owner has the right to reproduce the work that makes the copies and use it for storing or getting financial benefits from it. Reproduction must be expressed in a permanent medium because if it is on a temporary medium, it is not a reproduction, but a display.
Another right that the owner gets is of making derivative work from it which means the works that are taken from another already existing work.
The owner has the right to perform his work in public, for example in the case of a drama, he has a right to perform the same. In the case of a singer, the singer has a right to sing it in public. In the case of the sound recordings and audio-visuals, it can be displayed in public like showing movies in the theatres or selling CDs. Also in the case of the sounds, the right is of playing it in the public.
These are the rights that are provided to the copyright owners by the law. The Author of the work also has the right to be associated with his work and make sure that his work is not destroyed, altered or mutilated. The previous rights were the economic rights and this right against distortion is a moral right of the copyright owner. The Visual Artists Rights Act, 1990 for the first time gave the moral rights to the authors for being associated with their work even after parting with it.
Granz v. Harris et al, 198 F.2d 585 (2d Cir. 1952) In this case the phonogram recording was in question. The sound record was trimmed considerably and sold to the public with the name of the artist. The court held that when substantially the work is changed and sold as that of that artist, it amounts to distortion and unfair competition.
Any changes caused to the work because of the long period of time for example the wearing down of the pages of the book due to storage in a library, changes caused by conserving the same or due to the lights and storage or any work which depicts or portrays the other work is considered as not being mutilated, destroyed or altered in any manner. The author is given an option to waive the moral rights.
Section 501 provides for the infringement of Copyright. When someone acts in violation of the before mentioned exclusive rights of the owner of the copyright, it is called an infringement.
The violation can also be made by state or state bodies. In order to take action against such unauthorized use of the copyright, the owner of the copyright has to serve a notice to the infringer along with the complaint copy. This violation also includes the secondary transmission done by the cable companies where the work belongs to another person.
The primary transmitter or the license holder also has the right to enforce action against the violation. In Kalem Co. v. Harper Brothers, 222 U.S. 55 (1911) It was the case of the photos arranged in a film to make a motion picture showing the substantial part of the work of the author and then selling the same is an infringement.
In Erickson Productions, Inc. v. Kast, No. 15-16801 (9th Cir. 2019) the photographs of the plaintiff were shown on the website of a person. The defendant had hired this developer for his work. The plaintiff’s photos licensed to a bank were put on this website. It was held that there was a contributory liability of infringement. Such is where there is a reason to know of the infringement but does not directly infringe the right.
5. Exceptions to Infringement
When the use of the original work is made for the purpose of criticism, news, teaching, archival or making copies for replacing the copy which is damaged or lost or stolen and an effort is made to retrieve the same constitute fair use. Fair use is used as a defence against copyright infringement when the acts which usually result in infringement are not considered so.
The test to determine fair use are: (a) The purpose of the use done – if it is commercial use or any benefit is received by the defendant, (b) What is the nature of the work copyrighted, (c) Whether there is a material copy of the work and (d) Effect on the potential market.
The burden to prove the infringement lies on the Plaintiff, but when the defence of fair use is taken, the burden to prove the lawful use of copyright rests on the defendant
In the case of Google LLC v. Oracle Am, the Supreme Court had determined the question of fair use in a computer program. Oracle was the owner of the copyright of a Java Program which could be used on any device – laptop or desktop. This gave directions to the computer for performing the tasks and also showed the name of the task to be performed along with the location. Google, when creating android, created new code for using it on the devices creating several lines of their own and copied lines from the Oracle’s code. The declaration code was something more than the other computer programs.
Court did not find any evidence that the code used by Google was for the same purpose for which Java used it. Java had used it to direct the computer to do certain tasks.
The court held that the use that Google had made was transformative by adding something new to it and something significant was implemented by it.
Further developments were made into Java of oracle to bring some new features to it in mobile devices. Considering the quantity of the work copied, the court held that the copy constituted only 0.4% of the total Java code. It was used solely for transformation into a new declaration code and was only for the purpose of Google to use it in Android by allowing the java programmers to use the existing knowledge.
This use of work by Google did not hamper the profits of Java as they both were operating in different fields.
6. Jurisdiction and remedies
To enforce the rights in copyright and to file a case against infringement, the person can approach the civil court for the action of injunction to stop the infringing acts by the infringer under Section 502.
Under section 503, the court has the power to impound/seize such infringing material during the course of proceedings.
Section 504 provides for the remedy of damages i.e. claiming the loss that the owner suffered because of the infringement and any additional profit earned by the infringer.
The proof is required to be given by showing the revenue and accounts.
Another option is statutory damages where the court can award the damages (compensation) from 750 dollars to 30000 dollars and if it is found that such violation was made on purpose, it can also be increased to an amount of 150000 dollars. On the other hand, if it was not done intentionally is can also be reduced to 200$.
Attorney fees can also be claimed Section 506 also makes infringement a criminal offence if it was made to make money out of it, made copies or distributed one or more such copies of which the value is more than 1000 dollars or makes such work available on the internet.
The limitation for civil action is 3 years and for criminal action is 5 years.
V. Digital Millennium Copyright Act, 1998
Lastly, something about the Digital Millennium Copyright Act of 1998 incorporated the standards of the WIPO Copyright and the performance and phonogram treaty. The service providers of online material were giver a certain level of protection if they displayed the work without hampering or storing the work for the purpose of online transmission such as youtube.
It just provides a platform for transmission. They cannot be held liable if some person posts infringed material. In the case of the Cable TV operators, they can store the work for the purpose of transmission with rightful licenses. It also provided protection to the storage of the work for the purpose of saving it in fear of losing it in maintenance or repairs.
Eg:- If the computer has to be repaired by completely erasing the memory, so to save the purchased software, it is saved in a pen drive or CD, it is protected by this law.
These are the important provisions of Copyright Law in the USA.
1. Constitution of the United States, Available Here.
2. Copyright Law of the United States (Title 17) and Related Laws Contained in Title 17 of the United States Code, Available Here.
3. THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998 U.S. Copyright Office Summary, Available Here.
4. What is Copyright? Available Here.
5. 499 U.S. 340 (1991)
6. 209 U.S. 1 (1908)
7. 198 F.2d 585 (2d Cir. 1952)
8. 222 U.S. 55 (1911)
9. 15-16801 (9th Cir. 2019)
10. GOOGLE LLC v. ORACLE AMERICA, INC, Available Here.