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COPYRIGHT - AN ABSOLUTE RIGHTWITH A FAIR USE DEFENCE

Author: P.Lavanya, B.A.,B.L.(Hons)., LLM., Ph.D from The Tamilnadu Dr. Ambedkar Law University, Chennai.


INTRODUCTION

A person may make limited use of the original author's work without asking permissionUnder the "fair use” defence. Certain copy righted uses are not an infringement which is"for the purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. It is purely based on the matter of policy that the public is entitled to freely use portions of copyrighted materials. Before moving into defence rule let’s see what copyright is, fair use and it’sinfringement.


COPYRIGHT

Copyright is nothing but the exclusive and assignable legal rightfor a fixed number of years which is given to the originator to print, publish, perform, film, or record literary, artistic, or musical material.


INFRINGEMENT

The copyright is infringed when other than the legal owner usesthe works without permission, protected by copyright law infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.


Copyright infringement disputes are usually resolved through direct negotiation, a notice and take down process, or litigation in civil court. Egregious or large-scale commercial infringement, especially when it involves counterfeiting, is sometimes prosecuted via the criminal justice system. Shifting public expectations, advances in digital technology, and the increasing reach of the Internet have led to such widespread, anonymous infringement that copyright-dependent industries now focus less on pursuing individuals who seek and share copyright-protected content online, and more on expanding copyright law to recognize and penalize - as "indirect" infringers - the service providers and software distributors which are said to facilitate and encourage individual acts of infringement by others.


Estimates of the actual economic impact of copyright infringement vary widely and depend on many factors. Nevertheless, copyright holders, industry representatives, and legislators have long characterized copyright infringement as "piracy" or "theft" - language which some U.S. courts now regard as pejorative or otherwise contentious.[1]In Pine Labs Private Limited vs Gemalto Terminals India Limited[2] a division bench of the Delhi High Court confirmed this position and held that in cases wherein the duration of assignment is not specified, the duration shall be deemed to be five years and the copyright shall revert to the author after five years.


LIABILITY OR PERMISSIBLE FAIR USE

The World Wide Web is a "hypertext" medium, allowing web site creators to easily insert "jump links" to any other pages on the Internet. It was surely inevitable that disputes would arise about the permissible scope of this activity. In fact, people who have objected to finding a link to their web page on some website they deem unsavory for one reason or another.In an instance, a woman who placed a picture of her recently deceased daughter on a web page in honor of her memory, found it linked from a site labeled "Babes on the Net." Many of these disputes have been resolved informally. Nevertheless, eventually, as more money became involved, some disputants would turn to more expensive forms of dispute resolution (i.e., to litigation).


And sure enough, hyper linking is at the heart of two recent lawsuits involving some pretty high-profile players. In one, a group of news organizations including CNN, Reuters, Time, and the Wall Street Journal has sued an Interne tope ration known as Total News. TotalNews.com is a website that brings together links to a variety of sources of news on the Web. Thus, by going to the Total News site, a user can find a page with a set of links to other websites providing political news (C-Span, The Economist, etc.), sports news (ESP Net, Fox Sports, etc.), and the like. Plaintiffs are objecting to having their web sites included on that set of links.


The defendant in the second suit is none other than Microsoft Corporation, which (among other things) runs, Seattle.Sidewalk.Com a city guide with information about upcoming events in the Seattle area. For those events that require tickets, Seattle. Sidewalk informs you that you may be able to purchase tickets through Ticketmaster (and it both provides some information about Ticketmaster's operations and a link to the Ticket master website). Ticketmaster, like the news organizations involved in the Total News dispute, has filed suit in federal district court to try to prevent this.


Now, why would CNN, or Time, or Ticketmaster, object to a link to their pages? Isn't the whole point of having a web page to attract users? These hyperlinks are like referrals and one rarely hears of one party suing another for sending customers to their store. What's going on here?


In a word advertising (and advertising dollars). In both suits, plaintiffs are asserting that the way that defendants link to their page deprives the plaintiffs of advertising revenuethat is properly theirs. Total News, for example, surrounds its web page with a "frame" -- a border that appears on the screen that contains advertising sold by Total News (or other messages that Total News wants you to see). Things get interesting now: if, say, you click on the link to ABC's web page, you will indeed see the ABC page but the Total News border continues to sit there, showing you the advertising that Total News has sold (which squeezes any advertising that ABC may contain into a smaller area on your screen). Similarly, Ticketmaster asserts that Microsoft, by linking to the Ticketmaster website, "has gained revenue from advertising made a part of Microsoft's website, depriving Ticketmaster of favorable advertising business" and that its actions constitute "electronic piracy."


These cases thus present the rather intriguing question: Does the law grant website operators any control over the manner in which individual hyperlinks to their site can be constructed? As the Ticketmaster and Total News cases (and the others that no doubt will follow) begin their journey through the legal system, two things are noteworthy at the outset.


First is the way in which this question illuminates the way in which Internet legal questions are (and are not) "new." If you think about it a bit, the real world is full of hyperlinks; a footnote in an article, or an entry in a book index, is a kind of hyperlink, as is a business' telephone number listed at the bottom of an advertisement. The telephone book itself is nothing more than a collection of hyperlinks, and even a familiar commercial logo the golden arches, for example functions as a kind of "hyperlink" to a "database" of information about specific companies that consumers carry around with them in their heads.


Precisely because hyper linking (of a sort) appears as a (small) part of so many different activities, there's lots of law scattered about the legal landscape governing hyper linking activity. Many legal doctrines trademark law, copyright law, and unfair competition, and privacy, misrepresentation touch upon different aspects of the question regarding the extent to which hyper linking-type activity is, or is not, permissible. However, there has never been a need to gather it together into a coherent theory of hyper linking or a coherent legal doctrine neatly labeled "The Permissible Scope of Hyper linking." But in the face of a medium whose very existence and viability is defined by its hyper linking capabilities, courts will have to do just that, drawing these disparate strands and fragments together into some sort of coherent whole. Litigation, of course, is an imperfect vehicle for constructing coherent doctrine. Plaintiffs will undoubtedly throw in as many different claims from as many of these pre-existing legal pigeonholes as they can, from relatively well-defined trademarkinfringement claims to the more "flexible" doctrines like commercial misappropriation and unfair competition and see what sticks. But slowly, over the course of many such suits and court decisions, a sensible framework may indeed emerge.


But slowly is the operative word. It's important to note that these two lawsuits have something else in common: both involve problems for which there is relatively simple technology 'fixes.' Ticketmaster can easily program its site to prohibit access to anyone coming in from Seattle.sidewalk.com, and, similarly, any news organizations can insert a few lines of code in its website program to prevent Total News from retaining its frames around the site. (Some, in fact, have already done so; if you're interested, go to Total News and explore the link to the New York Times website and presto! the Total News frame disappears). So, you might ask yourself: if your client wants to protect its website against this framing actively, will it turn to its techies, or its lawyers, to be the first line of defense?


So while the legal system plods on, we're probably going to see a kind of technological "arms race" involving these (and perhaps most) Internet property disputes. Technology can take the away what it give; Total News will undoubtedly come up with a few lines of code of its own to defeat the Times' efforts, the Times will then respond with another trick, and on and on it will go. And this will all happen on "Internet time" - the time frame of response and counter-response will be compressed and foreshortened, and independent of the comparatively glacial pace of legal change. By the time the courts get around to providing an authoritative determination regarding the "right" of website owners to control linking to their sites, the technology of linking will probably look nothing like what we see today, and we may have long forgotten the conduct that started these disputes. The role of the courtroom as a place where rules of conduct are constructed may be substantially undermined in this context. Military officers are often derided for planning to fight the previous war why do we lawyers face a similar fate?


LIMITATIONS ON EXCLUSIVE RIGHTS

Fair Use Not every act of copying constitutes copyright infringement. The doctrine of "fair use" permits certain acts of copying. Under the doctrine, criticism, news reporting, teaching, and scholarly comment are all fair uses of copyrighted works. Appeals focusing on the defense of fair use to a claim of copyright infringement have reached The Supreme Court of the United States three times since 1984. In each of these cases, the holding of the lower court was overturned. It i s not unfair to say that fair use is the most troublesome doctrine in the whole of copyright law. The copyright statute which has incorporated this doctrine states that in determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

  2. the nature of the copyrighted work;

  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

  4. the effect of the use upon the potential market for or value of the copyrighted work

[1]Dowling v. United States (1985), 473 U.S. 207, pp. 217–218. [2](1) FAO 635 2009