"Publication" was a key requirement for protection under the Copyright Act. Publication under the Act is,
"[T]he distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display constitutes publication. A public performance, or display of a work does not of itself constitute publication."
This definition, notes the Working Group, was intended to make
clear there is no "publication" if a work does not change hands. If a sufficient
number of copies of a work were offered to an online service (such as a
bulletin board system) operator or others for upload onto the NII, the
Group states that publication may occur.
"The public performance right is limited to 'literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. The public display right is limited to 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."
According to the Working Group, "increasing 'cross-breeding' of
types of works demonstrate that categorization may no longer be useful.
Its necessity is also questionable, except, perhaps, in the case of sound
recordings, which are not granted the full panoply of rights."
"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....
When a printed work is 'scanned' into a digital file....
When other works -- including photographs, motion pictures, or sound recordings -- are digitized....
Under current technology, when a user's computer is being used as a 'dumb' terminal to 'look at' a file resident on another computer (such as a BBS or Internet host)...."
Modification of the content of a downloaded file, states the Group, is also an infringement of a copyright owner's right to prepare derivative works.
The right to distribute copies is another important right held by the copyright owner. But this right is qualified by the "first sale" doctrine, which allows the owner of a particular copy of a work to sell or otherwise dispose of possession of that copy. (Notably, the owner of a copy of a computer program may not rent, lease or rent that copy for commercial advantage.) Concerned that an owner could retain a work and simply provide another person with a copy, the Group suggests the first sale doctrine is not appropriate to transactions involving digitized works.
With the exception of sound recordings, the right to perform a work publicly is another of the exclusive rights granted by the Copyright Act. States the Working Group,
"When any NII user visually 'browses' through copies of works
in any medium (but not through a list of titles or other 'menus' that are
not copies of the works), a public display occurs. A display is 'public'
on the same terms as a 'performance'; therefore, virtually all NII uses
would appear to fall within the law's current comprehension of 'public
display.'"
"Direct participation in infringing activity," notes the Working Group, "is not a prerequisite for infringement liability..." Infringement actions may be based on vicarious liability (e.g., a supervisor being held liable for the acts of an employee) or contributory infringement (e.g., a BBS operator who has knowledge of the uploading and downloading of unauthorized copies of a copyrighted video game, and who also solicited the copying).
On liability of operators of online systems for infringing material
posted onto and downloaded from their systems, the Group notes that in
one case an operator was held directly liable for the display and distribution
of unauthorized copies of a copyrighted work, and in the other the operator
was held liable for contributory infringement. (See, __Playboy Enterprises
Inc. v. Frena__, 839 F.Supp. 1552 (M.D. Fla. 1993), __Sega Enterprises
Ltd. v. MAPHIA__, No. C 93-4262 CW, 1994 U.S.Dist. LEXIS 5266 (N.D. Cal.
Mar. 28, 1994).) Two recent libel cases may also provide guidance in this
area. In those cases (one involving a television network and the other
involving CompuServe), liability was not imposed for transmission of alleged
defamatory material where it could not be shown that the defendant did
not know or have reason to know of the defamatory content of the material
at issue. (See, __Auvil v. CBS "60 Minutes__," 800 F.Supp. 928 (E.D. Wash.
1992), __Cubby Inc. v. CompuServe Inc.__, 776 F.Supp. 135 (S.D.N.Y. 1991).)
Technology may, of course, be used to restrict unauthorized access to copyrighted works. The Working Group discusses encryption as a method for controlling access at the file level, and notes there is an ongoing review of government policy concerning export of computer and networking technologies. (The Group notes the Audio Home Recording Act requires recording and interface devices to control serial copying.) "Software-based systems for tracking and monitoring uses of copyrighted works," says the Group, "are contemplated in the development of the NII." Electronic licenses, "analogous to the 'shrink-wrapped' licenses used for prepackaged software," may also be used in connection with works offered through the NII.
Second, the Group would limit the first sale doctrine so that it does not apply where the owner of a copy transmits a copy of it to another. The reason for this is the owner has not relinquished possession of the particular copy owned.
Third, the Group would prohibit the "importation, manufacture and distribution of devices, as well as the provision of services, that defeat anti-copying systems." Interestingly, the Group includes a gaping loophole in its proposed legislation, allowing that such actions may be taken "with the authority of the copyright owner or the law."
Fourth, the Group seeks to prohibit the fraudulent inclusion, removal or alteration of copyright management information. Such information might include the name of the copyright owner and terms and conditions for use of the work, among other things.
Fifth, a public performance right for sound recordings is suggested.
There are a number of other issues discussed by the Working Group. It will be sponsoring a conference to develop guidelines for fair uses of copyrighted works by schools and public libraries. Another conference will be held on intellectual property education.
CyberLaw (tm) is published solely as an educational service. The author, a California attorney, is Executive Editor of LEXIS COUNSEL CONNECT CALIFORNIA. He may be contacted at jrosen03@reach.com or cyberlaw@cyberlaw.com; questions and comments may be posted on America Online (go to keyword "CYBERLAW"). Copyright (c) 1994 Jonathan Rosenoer; All Rights Reserved. CyberLaw is a trademark of Jonathan Rosenoer. CyberLaw on the World Wide Web (http://www.portal.com/~cyberlaw/cylw_home.html) is made possible with support from Portal Communications Co., an Internet provider based in Cupertino, CA (ph. 408/973-9111).
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