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Posted by on in COPYRIGHT

BPnfkFkCEfqyF6C6nKMPZD3wThe Copyright Act of 1976 (the copyright laws of the United States) gives the creator of a work five exclusive rights:
the right to make reproductions of the work;
the right to publically display the work;
the right to publically perform the work;
the right to distribute the work; and
the right to make or authorize derivative works based on the original


Generally, when someone who has not received the permission of the creator exercises one of those rights, that person is infringing on the rights of the creator and can be liable for copyright infringement. However, the Copyright Act includes some defenses. There are exemptions from the infringement provisions, along with “statutory licenses,” which allow an infringer to pay a set fee for the use of the material, even without specific permission. One of the broader defenses, however, is fair use.


What is Copyright Fair Use?


The fair use provision is meant to promote discussion, commentary, and education regarding works otherwise covered by copyright law. Essentially, it allows users of a copyrighted work to argue that their use is not infringement because it does not create the kind of threat to a creator’s right to be compensated for his work that copyright law protects. For example, fair use generally allows things like parody, or quotation in an editorial to facilitate commentary. Fair use is codified in the Copyright Act through a set of four factors the court will balance to determine if the use of the work is fair or should be penalized as infringement.

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computer code softwareSource Code Review is the most powerful tool in a litigator’s war chest in patent and trade secrets cases. An important consequence of the judicial climate shifting farther away from business methods and closer to technically complex IP is that receiving parties now face a higher burden of proof and subsequently higher legal costs. Not only are receiving parties now required to be more diligent prior to a case filing but they also end up spending extra thousands of dollars reviewing millions of lines of code to successfully formulating their infringement arguments.


On the other hand, with increasing complexity of software, legal costs have been increasing as well. Production of complex source code, in particular, increases the effort required to collect, triage, transportation and host the code during discovery – each of which comes at a financial cost. Furthermore, producing more code means stricter data security diligence by IT, eDiscovery executives and outside counsel increasing both the cost and the risk for the producing party. Notwithstanding, several strategies exist which can potentially keep costs and risks under control for both parties.


Size and Scope of Code Production

 

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b2ap3_thumbnail_google-460x275.jpgAs many people know, once information is on the Internet, it can stay there forever. However, some individuals have a legitimate interest in having certain information removed from the Internet, so they may pursue doing this through Google, the largest search engine at the time of publication. There is a certain process that individuals must usually follow in order to effectuate this, and Google does not guarantee that all unfavorable information will be removed.

 

Webmaster Request

If there is a photo, webpage or profile link that you want to be removed, you must first usually ask the webmaster to remove this information. This is important because this individual or entity still has the information that you want removed. Therefore, even if Google deletes it from their search options, the objectionable content is still on the actual page and accessible via social media, other search engines and the actual webpage. The webmaster has the ability to delete the entire page.

Removals for Legal Reasons
Google may remove content if it is for a particular legal reason. For example, it removes images of child pornography or sexual abuse.  Additionally, it will remove information pursuant to a legal request that the information is in violation of copyright infringement. 
 
Removal of Personal Information

Upon request, Google may remove personal information such as a Social Security number, other national identification card, credit card, number, bank account number or an image of a person’s signature. Additionally, Google may remove a person’s nude or sexually explicit picture that was uploaded without your permission. 

Before removing such information, Google assesses the risk of harm to you for identity theft, fraud or other types of risk. Therefore, it evaluates whether the information can be utilized for typical financial transactions, if it is something that was shared without your consent and whether it could be used to acquire additional information that could cause financial harm to you. 

Additionally, Google will not typically remove information that is already publicly available, including phone numbers, dates of birth or addresses because it can easily be found through other means. This also means that Google will not usually remove information that is included on governmental websites.

Due to this personal evaluation, every case is different. There is not a set formula for these types of requests that will automatically guarantee removal by Google. Additionally, if Google representatives conduct this analysis and determine that the request is being used to remove other information that is not personal in nature, the request will be denied. 

Removing Information

A person who wants to have information removed from Google can access the necessary request form through the Google website. There is a separate form for legal removals and personal information removals. If a person wants additional information on this subject, he or she may consider talking it over with a lawyer. He or she may be able to get a court-issued order requiring Google to remove such information. Alternatively, he or she may suggest other ways of remedying the situation, such as pursuing a claim for slander, fraud or misappropriation against the person who is responsible for publishing such information.
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b2ap3_thumbnail_copyright.jpgTechnological advancements in social media sites and website development tools have allowed users to easily share and discuss articles and photographs across the globe. In parallel with these technological developments, various organizations have sprung up that claim to represent owners of these shared photographs. These organizations send a letter and make an excessive copyright demand. Users must understand their rights before deciding whether to succumb to such excessive demands.

 

Social media websites have become a primary means of communication across the globe. Today, sharing of articles and photographs can be accomplished with a few simple clicks – many times from one’s mobile smart phone. Technological advancements have also made it quite easy for anyone to build their own website and share articles and photographs. In some cases, the photograph is part of an article posted on an online magazine’s website. Such articles typically include buttons for sharing the article on multiple social media platforms.
Copyrights are granted to the creator of a work of authorship the moment that the work is fixed into any tangible form. Copyright protection commences from the time that the photographer creates the photograph or the author writes the article. The creator owns the exclusive rights to copy, distribute, make derivative works of, publicly display and publicly perform the work. Other parties would require a license to use such works.
 
The organizations that represent photographers may have a legitimate purpose or may simply be copyright trolls. A copyright troll is a plaintiff who seeks damages for infringement upon a copyright it owns, not to be made whole, but rather as a primary or supplemental revenue stream. Trolls understand that enforcing copyrights can be more profitable than creating new works. Despite the possibility that some infringers will fight back in court, copyright trolls continue to exist today.

To prove copyright infringement, a plaintiff must show that it is the owner of the work, and that the user violated at least one of the exclusive rights. Users who receive letters should request proof of ownership or valid license from the applicable creator, and also proof of copyright registration.

A copyright holder can elect for either statutory damages, or for actual damages caused by the infringement as well as profits. Statutory damages generally range from $750 to $30,000. If the court finds the infringement willful, it may raise the statutory damages to as much as $150,000. But statutory damage awards can be as low as $200 if the user can prove that it was unaware that it infringed on the copyrights. However, if the work was not registered for copyright protection, then the creator may not be entitled to statutory damages. Without statutory damages, copyright trolls would lose their incentive to litigate.

Users are typically not aware that the material was protected by copyrights, and any alleged use was likely unintentional, not willful. Upon receipt of the demand letter, the allegedly infringing material may be immediately removed from the user’s websites. Even if statutory damages do apply, the $150,000 maximum would not apply to infringement that was not willful.

The copyright troll’s demands for fees for a retroactive license are typically excessive and unreasonable. Courts have ruled that copyright royalties must be reasonable. On Davis v. The Gap, 246 F.3d 152 (2d Cir. 2001) (finding that a claim of $2.5 million was wildly inflated and speculative and that evidence supported a much more modest claim). Users should review the license fees for comparable photographs to determine the range of reasonable fees in the marketplace.

Under U.S. copyright law, the fair use exception allows use of copyrighted material for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. One factor of the legal test addresses commercial use. Commercial use is given some weight in favor of finding fair use when the use is transformative – for example, use of the plaintiff’s copyrighted work in a different context such that the plaintiff’s work is transformed into a new creation.

Use of thumbnail versions of images linking to full size images and content on another website is fair use. Even though the entire original photo is used by online search tools, it serves a different function than the original photo. The search tools transform an image into a pointer directing a user to a source of information and provide a social benefit by incorporating an original work into an electronic reference tool. The use does not harm the market for full size images. Perfect10 v. Google, 508 F.3d 1146 (9th Cir. 2007).

Use of an image of a magazine containing photos to provide information to legitimate purchasers of the physical magazine is also fair use. The use was transformative with a purpose different than that of the photographer. The photographs in the article were already altered by the editors of the magazines. The photographer had already consented to have his works copied, altered and widely distributed, and had been compensated accordingly. Rosen v. eBay, 2015 WL 1600081 (C.D. Cal. 2015).

In the end, users should modify their processes and select images that are available royalty free or simply get a license in advance. Many online sources exist for such purposes. But when a demand letter is received, users must understand their legal rights and request the above additional information and make the appropriate legal arguments before deciding to pay an excessive royalty.
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b2ap3_thumbnail_000_par8049419.21db1162141.original.jpgOne may question whether athletes would be able to claim copyright on their performance. It is well known that artists are able to do so and in fact do claim copyright on their work, such as song writing.

 

The answer as to whether athletes can claim copyright would affect not only the athlete directly, and their teams but also the entities that usually lay exclusive claim to the rights to exploit the event, such as sponsors and broadcasters.

The most important point which need addressing is whether athletes are, in the context of their sporting event, preforming or producing a qualifying “work” in relation of copyright legislation. If the answer is in the positive then they would have a claim over the exclusive rights to control the distribution of their work.

Maltese law provides that “works” shall be eligible for copyright if they are either:
i. artistic works;
ii. au diovisual works
iii. databases;
iv. literary works;
v. musical works.
 
From the above the one where athletes performance could possible fall under would be ‘artistic works’. The law defines it as including paintings; maps; diagrams; sculpture; photographs; works of architecture; works of artistic craftsmanship. Therefore, after analysing the definitions provided in law relating to what amount to “works”, it would be difficult to come to the conclusion that a performance would indeed fall under this definition.

The law goes on to define ‘performance’, whereby it states that it is the direct rendition of the work to a public which takes place under such circumstances that the works performed can be perceived by the public without any intermediate communication. Therefore, could the performance of an athlete fall under the definition? The law does not directly include athletes.

In the case of ‘Infopaq International’ the European Court of Justice (ECJ) has analysed the Copyright Directive, whereby it stated that copyright within the meaning of Article 2(a) is only applicable in relation to a subject-matter [work] which is original in the sense that it is its author’s own intellectual creation. Moreover, for the purpose of copyright protection, the term “literary and artistic works” is understood to include every original work of authorship, irrespective of its literacy or artistic merit. The form of expression must be the original creation of the author.

The question as to whether sporting events can be considered as “works” to qualify for copyright protection was addressed in ‘Football Association Premier League Ltd (FAPL) and Others v QC Leisure and Others’. In this case, FAPL, who runs the Premier League in the UK, distributed and marketed the television broadcastings rights for the matches based on territorial exclusivity. Certain companies in the UK were using foreign decoder cards, issued by a Greek broadcaster to subscribers in Greece, in order for them to access Premier League matches, instead of paying FAPL for broadcasting rights.

FAPL brought an action against them claiming that such activities undermined the value and exclusivity of their television broadcasting rights.

The ECJ stated that ‘FAPL cannot claim copyright in the Premier League matches themselves, as the matches cannot be classified as works (…) to be so classified, the subject matter concerned would have to be original in the sense that it is its author’s own work intellectual creation’.

The Court went on to say that ‘football matches cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive. That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright (…) It is, moreover, undisputed that European Union law does not protect them on any other basis in the field of intellectual property.’

After analysing what the Court has stated, one can conclude that a sport event which is susceptible to rules cannot amount to ‘work’ for the purpose of copyright law, because a person does not have the freedom to create ‘work’ of original intellectual creation which falls within the parameters of copyright law.

It is ,thus, safe to conclude that the majority of sportsmen cannot obtain copyright for their sporting performance, given that sport is rule bound and, therefore it prohibits them from the creative freedom which, would amount to a ‘work’ in terms of copyright law.

However, certain sport are less rule bound and thus, the person would be in a position to express and create their thoughts into practice. For example ice-skating and gymnastics provide a certain extent of freedom onto the athlete to express and create their own choreography. It is true that dancers, ice-skaters and gymnasts have rules to follow, however such rules are not to the same extent as football. Moreover, the degree of originality is higher than in football.

That said, it is still questionable whether ice-skating and gymnastics performance could fall under copyright law given that, dancers, athletes and the like still have rules to follow, and the freedom to express and create their personal ideas into practice is all-the-same limited.

Although, one may argue that if the characteristics of originality are present then such performances could amount to ‘works’ under copyright law, and athletes could thus be classified as artists. However one may question how it would be possible to distinguish and classify which athletes and which sport would fall within the ambit of copyright law.

Even though it is widely accepted that most sport performances do not fall under the definition of “works” for the purpose of copyright protection, certain sporting performances which, require a higher degree of original intellectual creation, could, possibly be classified as “works”. One may question why a distinction between the performance of a gymnast and the performance of an artist is drawn up.

One can therefore, conclude that the answer as to whether an athlete’s performance could fall under copyright law is debatable and open to interpretation. Therefore, regulations and national legislation should be clearer in order to provide legal certainty on what can or cannot be considered as “works”.
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Posted by on in COPYRIGHT

b2ap3_thumbnail_copyright_law.jpg

Copyright laws and internet use are intertwined when it comes to creating an internet copyright.  To create an online copyright, it can be as simple as including the word “copyright” or “©” and the date and author of the copyrighted material (i.e. © November, 2009, John Doe).  The reality is that even absent a © notation, all work of an individual belongs to that individual, and is therefore implicitly copyrighted.  However, it becomes difficult to prove that the material belonged to a specific person first if there is no documentation or evidence of an official copyright.

Laws for Internet Copyrights

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b2ap3_thumbnail_images.jpg The United States is probably the world’s largest market for software. Software developers from outside the U.S. should know the intellectual property protections given to software, so they can take steps to ensure that others do not take advantage of their work, while, at the same time, avoiding conflicts with other developers selling similar software.

Copyright gives the most basic protection for computer software. Under U.S. copyright law, software is considered to be a "literary work" and is, thus given all of the protections of literary works, such as novels or poems. The owner of the copyright of a literary work has the exclusive right to make and distribute copies, and to create derivative works. The rights to make and distribute copies of the copyrighted work is obviously the most important, since those rights are the strongest weapons against pirates. The right to create derivative works gives the owner of the copyright in software the right to create updates, new versions and translations of the copyrighted work.

Under U.S. law, the author of a work is automatically the owner of the copyright in the work. If an employee creates a work as part of his employment, the employer is considered to be the "author" for copyright purposes. The author acquires a copyright in a work as soon as it is "fixed in a tangible medium of expression", which, in the case of software, means as soon as it is written down on paper, or electronically on the computer, in some readable form. Copyrights last for the life of the author plus 50 years if the author is a natural person, or for 150 years if the author is a corporation.

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