Difference between revisions of "Copyright infringement"

Latest revision as of 20:59, 26 September 2010

Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.

"Piracy"

The practice of labelling the infringement of exclusive rights in creative works as "piracy" predates statutory copyright law. Prior to the Statute of Anne 1709, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labelled pirates as early as 1603.^[1] "Piracy" referred to the unauthorised manufacturing and selling of works in copyright.^[2] Article 12 of the 1886 Berne Convention for the Protection of Literary and Artistic Works uses the term piracy in relation to copyright infringement, stating that: "Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection."^[3] Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires criminal procedures and penalties in cases of "wilful trademark counterfeiting or copyright piracy on a commercial scale".^[4] Piracy refers to acts intentionally committed for financial gain, though more recently copyright owners have described online copyright infringement, particularly in relation to peer-to-peer file sharing networks, as piracy.^[5]

"Theft"

Copyright owners frequently refer to copyright infringement as "theft". In law copyright infringement does not refer to actual theft, but an instance where a person exercises one of the exclusive rights of the copyright owner without authorisation.^[6] Courts have distinguished between copyright infringement and theft, holding, for instance, in the United States Supreme Court case Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property and that "...interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright... 'an infringer of the copyright.'" In the case of copyright infringement the province guaranteed to the copyright owner by copyright law is invaded, i.e. exclusive rights, but no control, physical or otherwise, is taken over the copyright, nor is the copyright owner wholly deprive of using the copyrighted work or exercising the exclusive rights owned.^[7]

Enforcement responsibility

The enforcement of copyright is the responsibility of the copyright owner.^[8] Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries enable courts to remedy copyright infringement with injunctions and the destruction of infringing products, and award damages.^[9] More recently copyright owners have demanded that states act to defend copyright owners' rights and enforce copyright law through active policing of copyright infringement. It has been demanded that states provide criminal sanctions for all types of copyright infringement and pursue copyright infringement through administrative procedures, rather than the judicial due process required by TRIPs.^[10]

Criminal liability

Article 61 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries establish criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale".^[11] More recently copyright owners have demanded that states provide criminal sanctions for all types of copyright infringement.^[12]

Online intermediary liability

Whether or not internet intermediaries have liability for copyright infringement by users, and without the intermediaries' authorisation, has been subject to debate and court cases in a number of countries.^[13] Liability of online intermediaries has been one of the earliest legal issues surrounding the internet. Early court cases focused on the liability of internet service providers (ISPs) for hosting, transmitting or publishing content that could be actioned under civil or criminal law, such as libel, defamation, or pornography.^[14] As different content was considered in different legal systems and in the absence of common definitions for "ISPs", "bulletin boards" or "online publishers", early law on online intermediaries' liability is widely different from country to country. The first laws on online intermediaries' liability were passed from the mid 1990s onwards and the debate has shifted away from questions about whether internet intermediaries are liable for different content, such as libellous content or copyright infringing content, towards a debate on whether online intermediaries should generally be made responsible for content accessible through their services or infrastructure.^[15]

Internet intermediaries used to be understood primarily in terms of internet service providers (ISPs), however, internet intermediaries are now also understood to be internet portals, software and games providers, those providing virtual information such as interactive forums and comment facilities with or without a moderation system, aggregators, universities, libraries and archives, web search engines, chat rooms, web blogs, mailing lists, and any website which provides access to third party content through, for example, hyperlinks. Questions of liability have emerged in relation to internet communications infrastructure intermediaries other than ISPs, including internet backbone providers, cable companies and mobile communications providers.^[16]

The US Digital Millennium Copyright Act (1998) and the European E-Commerce Directive (2000) provide online intermediaries with safe harbor provisions, known as mere conduit principle in the Directive. Online intermediaries who host content that infringes copyright are not liable, so long as they do not know about it and take actions once the infringing content is brought to their attention. However, questions have arisen in relation to online intermediaries that are not hosts, particularly in the context of copyright infringement through peer-to-peer file sharing networks. Such intermediaries may be regarded as enabling or assisting in the downloading and uploading of files by users, and may include the writer of a peer-to-peer software, the websites that allow users to download peer-to-peer software, and in the case of the BitTorrent protocol the torrent site website and the torrent tracker. These intermediaries do not host or transmit the files that infringe copyright, though they may be considered to be "pointing to" the files. Since the late 1990s copyright owners have taken legal actions against a number of peer-to-peer intermediaries, such as Napster, Grokster, eMule, SoulSeek and BitTorrent, and case law on the liability of internet service providers (ISPs) in relation to copyright infringement has emerged primarily in relation to these cases.^[17]

The decentralised structure of peer-to-peer networks does not sit easily with existing laws on online intermediaries' liability. The BitTorrent protocol established a entirely decentralised network architecture in order to distribute large files effectively and recent developments in peer-to-peer technology towards more complex network configurations are said to have been driven by a desire to avoid liability as intermediaries under existing laws.^[18] While ISPs and other organisations acting as online intermediaries, such as libraries, have been given protection under existing safe harbor provisions in relation to copyright infringement, peer-to-peer file sharing intermediaries have been denied access to the safe harbor provisions in relation to copyright infringement. Legal action in relation to copyright infringement against peer-to-peer intermediaries, such as Napster, are generally brought in relation to principles of secondary liability for copyright infringement, such as contributory liability and vicarious liability.^[19]

Canadian law

Sharing copied music is legal in some countries, such as Canada and The Netherlands (downloading only),^[20][21] provided that the songs are not sold.

See also

For a substantial discussion of copyright infringement in the domain of computer programs, see copyright infringement of software.

References

Further reading

• Johns, Adrian: Piracy. The Intellectual Property Wars from Gutenberg to Gates. The University of Chicago Press, 2009, ISBN 978-0-226-40118-8

External links

• A 2000 Salon.com article by Courtney Love addressing copyright infringement of music
• A 2001 reprint of two speeches given by Thomas Macaulay in Parliament in 1841, when the issue of copyright was being hammered out.
• A 2003 article on CD Piracy in China from the music webzine www.CLUAS.com
• An article for students explaining the difference between plagiarism and copyright infringement
• How Corporate Law Inhibits Social Responsibility
• Movie and Record Industry Piracy Figures Incendiary, But Not Fact. – June 2006 MP3 Newswire article challenges inflated copyright infringement claims by media companies
• US Copyright Office

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1. ↑ T. Dekker Wonderfull Yeare 1603 University of Oregon
2. ↑ Panethiere, Darrell (July – September 2005). "The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development" (PDF). UNESO e-Copyright Bulletin. p. 2.  Check date values in: |date= (help)
3. ↑ Panethiere, Darrell (July – September 2005). "The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development" (PDF). UNESO e-Copyright Bulletin. p. 14.  Check date values in: |date= (help)
4. ↑ Lua error in package.lua at line 80: module 'Module:Citation/CS1/Suggestions' not found.
5. ↑ Panethiere, Darrell (July – September 2005). "The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development" (PDF). UNESO e-Copyright Bulletin. p. 14.  Check date values in: |date= (help)
6. ↑ Clough, Jonathan (2010). Principles of Cybercrime. Cambridge University Press. p. 221. ISBN 9780521728126. 
7. ↑ Dowling v. United States (1985), 473 U.S. 207, pp. 217–218
8. ↑ Lua error in package.lua at line 80: module 'Module:Citation/CS1/Suggestions' not found.
9. ↑ Lua error in package.lua at line 80: module 'Module:Citation/CS1/Suggestions' not found.
10. ↑ Lua error in package.lua at line 80: module 'Module:Citation/CS1/Suggestions' not found.
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12. ↑ Lua error in package.lua at line 80: module 'Module:Citation/CS1/Suggestions' not found.
13. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 2. Retrieved September 2010.  Check date values in: |access-date= (help)
14. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 4. Retrieved September 2010.  Check date values in: |access-date= (help)
15. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 5. Retrieved September 2010.  Check date values in: |access-date= (help)
16. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 5-6. Retrieved September 2010.  Check date values in: |access-date= (help)
17. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 7. Retrieved September 2010.  Check date values in: |access-date= (help)
18. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 9. Retrieved September 2010.  Check date values in: |access-date= (help)
19. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 10. Retrieved September 2010.  Check date values in: |access-date= (help)
20. ↑ "Your Interview: Michael Geist". Canadian Broadcasting Corporation. 2008-04-07. 
21. ↑ "In depth: Downloading music". Canadian Broadcasting Corporation. 2006-05-01.