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exclusive rights) may register the copyright in the work by depositing with the Copyright Office a completed application form, registration fee and a copy or copies of the work.195 The deposit requirement under the Act may be fulfilled through the registration procedures. 196

Although not required, registration may be advisable. A certificate of copyright registration constitutes prima facie evidence of the validity of the copyright and the facts stated in the certificate, if registration is made within five years of first publication. 197 In addition, certain remedies are available in infringement suits only if registration is made prior to the date of the infringement or within three months of first publication.198

The lack of notice and registration requirements may make it harder to differentiate between protected and unprotected works, including those in the public domain and those in which the author does not wish to claim copyright. It may also make it more difficult to identify the copyright owner. This has led some to suggest, at least with respect to works disseminated via computer networks, that one should be free to copy any work that does not contain a copyright notice and that registration should be required.

While these arguments may have some merit, the balance of interests has not changed since these issues were considered by Congress and the requirements were eliminated. Conditioning copyright protection on the affixation of copyright notices and/or registration would be

195

See 17 U.S.C. S 408 (a), (b) (1988 & Supp. V 1993). Only one copy of the work is required for certain types of works, including unpublished works.

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197

17 U.S.C. S 410(c) (1988); Bibbero Systems, Inc. v. Colwell Systems, Inc., 893 F.2d 1104, 1106 (9th Cir. 1990). The weight to be accorded a certificate when registration has been made more than five years from the date of first publication is within the discretion of the court. 17 U.S.C. S 410(c) (1988).

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inconsistent with our obligations under the Berne Convention.199 Further, the benefits of utilizing Copyright Management Information should encourage copyright owners to include or affix information historically included in copyright notices, as well as additional useful information for consumers, such as the terms and conditions for use.

6. EXCLUSIVE RIGHTS

The Copyright Act grants copyright owners certain exclusive rights that, together, comprise the bundle of rights known as copyright. (Limitations on the exclusive rights and infringement of the rights are discussed in subsequent sections. The fact that a particular use of a copyrighted work is said to implicate one or more of the rights, therefore, does not necessarily mean that such use is an infringement or unlawful.)

The exclusive rights of the copyright owner include

(1) to reproduce the copyrighted work in copies or

phonorecords;

(2) to prepare derivative works based upon the

copyrighted work;

(3) to distribute copies or phonorecords of the

copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and

choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and

199

The Berne Convention prohibits member states from conditioning copyright protection for works of Berne nationals on the compliance with formalities. See Article 5 of the Berne Convention infra note 439.

200

(5) in the case of literary, musical, dramatic, and

choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work

publicly.

These rights, in most instances, have been well elaborated by Congress and the courts in both "conventional and digital contexts. For the most part, the provisions of the current copyright law serve the needs of creators, owners, distributors, users and consumers of copyrighted works in the NII environment. In certain instances, small changes in the law may be necessary to ensure public access to copyrighted works while protecting the rights of the intellectual property owner.

a. THE RIGHT TO REPRODUCE THE

WORK The fundamental right to reproduce copyrighted works in copies and phonorecords201 will be implicated in innumerable NII transactions. Indeed, because of the nature of computer-to-computer communications, it will be implicated in most NII transactions. For example, when a computer user accesses a document resident on another computer, the image on the user's screen exists under contemporary technology -- only by virtue of the

copy

that is reproduced in the user's computer memory. It has long been clear under U.S. law that the placement of copyrighted material into a computer's memory is a reproduction of that material (because the work in memory then may be, in the

200

17 U.S.C. § 106 (1988 & Supp. V 1993). Section 106(A) grants additional rights for certain works of visual art in single copies or limited editions. The development of the NII does not raise unique issues with respect to those rights. See 17 U.S.C. S 106(A) (Supp. V 1993). 201

See 17 U.S.C. S 101 (1988) (definitions of "copies" and "phonorecords").

or

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law's terms, "perceived, reproduced, communicated ... with the aid of a machine or device").202

The 1976 Copyright Act, its legislative history, the CONTU Final Report, and repeated holdings by courts make it clear that in each of the instances set out below, one or more copies is made.203

When a work is placed into a computer, whether
on a disk, diskette, ROM, or other storage device
or in RAM for more than a very brief period, a
copy is made.204
When a printed work is "scanned" into a digital

the digital file itself -- is made.
When other works including photographs,
motion pictures, or sound recordings
digitized, copies are made.

file, a copy

are

202

In 1978, the CONTU Final Report noted, "[T]he application of principles already embodied in the language of the (current) copyright law achieves the desired substantive legal protection for copyrighted works which exist in machine-readable form. The introduction of a work into a computer memory would, consistent with the (current) law, be a reproduction of the work, one of the exclusive rights of the copyright proprietor." CONTU Final Report at 40. See also MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993), cert. denied, 114 S. Ct. 671 (1994); Vault Corp. o. Quaid Software Ltd., 847 F.2d 255, 260 (5th Cir. 1988); Advanced Computer Services v. MĂI Systems Corp., 845 F. Supp. 356 (E.D. Va. 1994); Triad Systems Corp.v. Southeastern Express Co., 1994 U.S. Dist. LEXIS 5390 (N.D. Cal. March 18, 1994); 2 NIMMER ON COPYRIGHT S 8.08(A) (1994).

That copying has occurred does not necessarily mean that infringement has occurred. When copying is (1) authorized by the copyright owner, (2) exempt from liability as a fair use, (3) otherwise exempt under the provisions of Sections 108-119 or Chapter 10 of the Copyright Act, or (4) of such a small amount as to be de minimis, then there is no infringement liability.

203

204

See, e.g., MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 519 (9th Cir. 1993). While this court's determination with respect to fair use may be open to question, its holding that booting a PC involves copying the operating system seems quite unexceptional.)

Whenever a digitized file is "uploaded" from a
user's computer to a bulletin board system (BBS)
or other server, a copy is made.
Whenever a digitized file is "downloaded" from a
BBS or other server, a copy is made.

.
When a file is transferred from one computer
network user to another, multiple copies generally
are made.

205

Under current technology, when an end-user's computer is employed as a "dumb" terminal to access a file resident on another computer such as a BBS or Internet host, a copy of at least the portion viewed is made in the user's computer. Without such copying into the RAM or buffer of the user's computer, no screen display would be possible.

b. THE RIGHT TO PREPARE DERIVATIVE

WORKS

The copyright law grants copyright owners the right to control the abridgment, adaptation, translation, revision or other "transformation" of their works.206 A user who

205

For example, if an author transfers a file (such as a manuscript) to a publisher with an Internet account, copies will typically, at a minimum, be made (a) in the author's Internet server, (b) in the publisher's Internet server, (c) in the publisher's local area network server, and (d) in the editor's microcomputer. It has been suggested that such "copying" of files in intermediate servers is only of transitory duration and consequently not covered by the reproduction right. However, it is clear that if the "copy" exists for more than a period of transitory duration, the reproduction right is implicated. Whether such reproduction is an infringement would be a separate determination. 206

See 17 U.S.C. S 106(2) (1988). "A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work.'" 17 U.S.C. 101 (1988) (definition of "derivative work").

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