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Copyright Use and Excuse on the Internet

Copyright Use and Excuse on the Internet

By JANE C. GINSBURG Columbia Law School

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Abstract

    1998 ended with voluminous copyright legislation, pompously titled the "Digital Millennium Copyright Act" ["DMCA"], and intended to equip the copyright law to meet the challenges of online digital exploitation of works of authorship. 1999 and 2000 have brought some of the ensuing confrontations between copyright owners and Internet entrepreneurs to the courts. The evolving caselaw affords an initial opportunity to assess whether the copyright law as abundantly amended can indeed respond to digital networks, or whether the rapid development of the Internet inevitably outstrips Congress' and the courts' attempts to keep pace. This Article addresses recent Internet-related controversies concerning technological protection measures and copyright management information; fair use and linking; "private" copying online services; and choice of law issues posed by foreign websites accessible in the U.S.

    The Internet copyright cases this Article examines call not only for interpretation of the provisions of the DMCA, but also for application of principles developed in pre-DMCA cases involving digital media and digital networks. What may make the current controversies different is the intensity of their impact on end-users. While the defendants in the current cases are generally, albeit not exclusively, commercial intermediaries, many of the practices here at issue pose the prospect of mass uncompensated copying by the public. Hence the feeling of desperation and even moral outrage that one senses pervades many of the copyright owners' actions. From the user perspective, digital media offer unparalleled opportunities to access and enjoy copyrighted works; copyright owners' endeavors to staunch the free (as in unpaid) flow of works are misguided attempts to stop the inexorable forward march of technology for the sake of preserving mastodontic business models of distribution. Certainly the Internet will compe l adoption of new business models, and the sooner copyright owners adapt, the better. The tools the DMCA and copyright caselaw give copyright owners to confront copyright use on the Internet should be employed to promote broad distribution of works of authorship at reasonable, and variable, prices. If copyright owners instead wield these tools to enhance control without facilitating dissemination, we can expect to see courts expand the zones of excused uses, whether or not the excuses are doctrinally persuasive. Copyright owners cannot, and should not, control every Internet use, but neither should every use prompt an excuse, lest we undermine the ability of copyright owners, and especially of individual creators, to make a living from their creativity.

Facts on copyright

  • Copyright may subsist in a wide range of creative or artistic forms or "works". These include poems, plays, and other literary works, movies, choreographic works (dances, ballets, etc.), musical compositions, audio recordings, paintings, drawings, sculptures, photographs, software, radio and television broadcasts of live and other performances, and in some jurisdictions industrial designs.
  • The right to adapt a work means to transform the way in which the work is expressed. Examples include developing a stage play or film script from a novel translating a short story and making an arrangement of a musical work. Limits and exceptions to copyright Main article: Limitations and exceptions to copyright. Idea-expression dichotomy and the merger doctrine Main article: Idea-expression divide A copyright covers the expression of an idea, not the idea itself --- this is called the idea/expression or fact/expression dichotomy. For example, if a book is written describing a new way to organize books in a library, a copyright does not prohibit a reader from freely using and describing that concept to others. It is only the particular expression of that process as originally described that is covered by copyright.
  • A common and simple practice to obtain evidence in favour of authorship is to place the copyright material in a envelope or package together with a document signed by several people stating that they have examined the work prior to it being sealed and that in their opinion it is original. Once this is done the package is mailed to the owner by recorded delivery, which helps to establish when the work was created, who the originator of the work is and that there are signatory validators prepared to state that it is original.

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