Music Essay, Research Paper
A copyright is the right to produce, reproduce, and transform any
original work. Copyrights are only given to original works that fall
under the ?following seven categories: Literary works, Musical
works including accompanying any works, Dramatic works
including accompanying music, Choreographic works, Graphical
and sculptural works, Motion pictures and other audiovisual works,
Sound recordings, and Architectural works?1. Under the Canadian
copyright act any published or unpublished original work upon
creation will receive automatic copyright protection. Though
automatic copyright protection is given to original works the benefits
of having one?s copyright registered (Copyright Registration
Application: Page 8 & 9) with the Canadian Intellectual Property
Office (C.I.P.O) is that one receives a certificate of registration
which can be used to one?s advantage in the event of infringement
and prove of ownership in a court law. When any production,
reproduction, transformation of a work is gone without the
permission of the owner of a copyrighted work this becomes
copyright infringement. In cases of copyright infringement the
responsibility to report this infringement rests on the owner of the
copyrighted work however the Copyright Act does contain criminal
remedies, which apply to certain types of serious infringement or
piracy. The function of copyright laws in our society today are
particularly stringent on copyright infringement and these laws ought
to be reformed to decrease the amount of congestion in civil
litigation surrounding copyright infringement in our legal system.
Copyright laws beginnings started close to three centuries ago.
When first implemented its sole function was to prevent exact
replications of written work. During the mid 1800?s, the publishers
of the eighteenth-century poet James Thomson?s ?The Seasons?
regularly sued producers of unauthorized, or pirated, editions of the
popular poem, since the publishers obtained the copyrights from
James Thomson. This was the beginning of the extension of rights
given to copyright owners. Eventually the function of the copyrights
broadened to include control over transformation, publication,
imitation and unauthorized usage of an original work. Even when
copyrights are transferred from one owner to another the original
copyright owner has what is called ?moral rights being that any
changes to an original work being modification, distortion, mutilation
without the permission of the original author is infringing on the
original author?s moral rights?.. 2
The intention of copyrights is based on the fundamental principle of
the necessity to protect all original intellectual property that fall under
the following categories: Literary works, Musical works including
accompanying any works, Dramatic works including accompanying
music, Choreographic works, Graphical and sculptural works,
Motion pictures and other audiovisual works, Sound recordings,
and Architectural works. However the intention of copyright law has
become particularly stringent since its inception.
With the multitude of rights and privileges given to authors and
copyright owners of original works the potential for negligence and
compliancy toward informing licensees can occur with the final
outcome of this situation being civil litigation. Negligence and
compliancy can occur by the author or copyright owner by
misrepresenting their work as being copyrighted, by labeling their
work with the copyright symbol implying that they are the
recognized owner or author but in actuality the duration of the work
has expired therefore the work has entered public domain. Duration
of most copyrighted works lasts for 50 years since the inception of
the copyrighted work. In the case of Tams-Witmark v. New Opera
Co., an opera company purchased the right to perform the comic
opera ?The Merry Widow? for $50,000 a year. After a little
more-than a year of performances, the opera company discovered
that the supposed copyrighted work had entered public domain
several years before due to the failure of the copyright owner to
renew the copyright. New Opera Co. then ceased paying royalties,
and after being sued by the owner of the abandoned copyright,
counterclaimed for damages in the amount paid to the owner on a
breach of warranty. The trial awarded the opera company $50, 500
in damages, and the court of appeals affirmed the judgment, finding
that ?The Merry Widow? ?passed, finally, completely and forever
into public domain and became freely available to the unrestricted
use of anyone?.. This judgment by the New York Courts of Appeals
strongly supported the position that when the warranty of title to a
copyright is breached because the work is in the public domain, the
alleged copyright holder must provide restitution of any payment
made by the licensee. Though this decision protects licensees of
paying bogus royalties for supposed licensing rights and being able
to receive restitution for spurious payments but until copyright
infringement laws become less stringent and provide and greater
protection to licensees then the negligence of copyright owners will
still exist and still congest the legal system with civil litigation.
The issue of parody is one focal point to consider in the stringency
of Canadian copyright laws. Parody under the Canadian copyright
act is vaguely mentioned and is particularly stringent on copyright
laws and is a model example of the stringency of Canadian copyright
laws comparatively to the United States copyright laws. Parody or
parodies falls under the issue of fair dealing under both the Canadian
copyright act and the U.S copyright act. Under the Canadian
copyright act parodies or criticism fall under section 27 stating that
?The following acts do not constitute an infringement of copyright:
any fair dealing with any work for the purposes of private study or
research; any fair dealing with any works for the purposes of
criticism, review or newspaper summary, if the source, and the
author’s name, if given in the source?.. Under section 107 of the U.S
copyright act it states ?fair use of a copyrighted work, including such
use by reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of
copyright. 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. The fact that a work is
unpublished shall not itself bar a finding of fair use if such finding is
made upon consideration of all the above factors?.. Section 27 of the
Canadian copyright act is comparatively more stringent then the U.S
copyright act on fair dealing of parodies and the Canadian copyright
act does not consider other factors involved in fair dealing such as
the U.S. copyright act does. In the case of MCA Canada Ltd?
MCA Canada Ltee v. Gilberny and Hawke Advertising, where an
advertising agency prepared a parody of the words ?Downtown?
and used it for radio advertising purposes in Ottawa, it was held to
violate MCA Canada?s copyright had this case been under U.S
jurisdiction the case could have been found not to violate the
copyright because of the natured copyrighted work and the parody
being completely two different forms of expression one being a
dramatic work another being a sound recorded work. Another
consideration if this case had been in U.S jurisdiction is that the
parody is a derivative work and that the portion of the derivative
work is not substantial of the original copyrighted work. On the
other side of the argument is that even if this case were held under
U.S jurisdiction it would have still resulted in the same judgment.
One consideration to promote this argument is that the derivative
work would be held to violate the original copyrighted work
because the purpose of the parody or derivative work was for
commercial use to facilitate the advertising agency into being able to
reap financial gain. Another contributing factor to promote this
argument is the effect of the parody or derivative work on the
original copyrighted work if the derivative work or the parody was
found to have drastic impact on the original copyrighted work then
this final consideration would result in the same judgment as in the
Canadian jurisdiction. Though in this example the case could result
either way under the U.S copyright act still comparatively to the
Canadian copyright act the U.S copyright act provides greater
clarity on the copyright doctrine of fair dealing and because of the
vagueness of the doctrine of fair dealing in the Canadian copyright
act the Canadian copyright act becomes more stringent on copyright
laws. The U.S copyright act is significantly less stringent on the issue
of parody than Canadian copyright act because of the poor
interpretation of the copyright doctrine of fair dealing in the
Canadian copyright act.
The issue of copyright infringement and the Internet is one key
illustration of the stringency of copyright infringement. The function
of copyrights is the protection of intellectual property of copyright
owners or authors in the physical world being that the responsibility
rest on the copyright owner or author unless in the case of serious
copyright infringement or piracy. The Internet is a digital nexus of
information and to apply current stringent copyright laws to the
Internet is heading toward disaster being that copyrighted works can
be passed along without ever taking a transitional physical form and
the vast magnitude of the Internet makes it near impossible to
enforce copyright infringement. Recognizing the inherent difficulty of
enforcing copyrights against individual Internet users, legal action has
been taken against Internet Service Providers (ISPs) for legal
liability for copyright infringement on those who allow and enable
Internet copyright pirates to exist, namely the ISPs. Those who take
legal action argue that ISPs profit from the pirates? use of the
Internet, and in comparison to an independent publisher or author,
an ISP is in a much better position to police how its subscribers use
the Internet. On the other side of the argument, ISPs claim that they
are passive carriers similar to telecommunications companies and
therefore should be granted some limitation from copyright
infringement liability. There are two forms of copyright infringement
surrounding this issue: direct copyright infringement and secondary
copyright infringement. Secondary copyright infringement is again
subdivided into two categories: contributory and vicarious copyright
infringement.
Secondary copyright infringement is applied in instances in which the
defendant did not personally engage in the violating activity but still
bears some responsibility for the infringement. A defendant is liable
for ?contributory copyright infringement if with knowledge of the
infringing activity, induces, causes or materially contributes to the
infringing conduct of another.?3 A defendant is liable for vicarious
copyright infringement where the defendant has the right and ability
to control or police the infringer?s acts and receives a direct financial
benefit from the infringement.
In the case of Playboy Enterprises Inc. v. Frena, the defendant was
an operator of a computer bulletin board service that, unknown to
the defendant, distributed unauthorized copies of Playboy
Enterprises, Inc.?s (PEI) copyrighted photographs.
For a fee, anyone with an appropriately equipped computer could
log onto the BBS, browse through different BBS directories to look
at the pictures, download the high quality computerized copies of the
photographs, and then store the images onto their home computer.
Frena admitted that the materials were displayed on the BBS and
that he never received consent from Playboy. However, Frena
argued that he did not personally upload any of the infringing
pictures onto the BBS (his subscribers had uploaded the images)
and that he removed the infringing pictures, as soon he was made
aware of the matter. In this case there was no question that Playboy
owned the copyrights on the photographs due to the fact that at trial,
Frena had offered no evidence to rebuff Playboy?s copyright
documentation. The only remaining issue was whether the
defendant?s actions implicated one of the copyright holders exclusive
rights.
The court held that Frena?s actions had infringed Playboy?s
exclusive right to display the works. The court held that there was
no question that Frena supplied a product containing unauthorized
copies of a copyrighted work. As for display rights, the court held
that Frena?s display of the copyrighted materials to his subscribers
constituted a public display even though his subscribers were limited
in number. Frena defended his use as within the scope of the fair use
exception to copyright infringement. His argument, however, fell on
deaf ears. The court found that Frena?s actions were commercial in
nature and of the sort that if they were to become widespread would
result in a substantially adverse impact on the potential market for or
value of the plaintiff?s work and therefore were not within the fair
use exception.
Though the Copyright Act was effective in providing clarification on
this case. The problem in general is the liability of Internet Service
Providers has not been clearly established and the enforcement of
the law remains a problem. In this issue the stringency of traditional
copyright laws are inherently difficult to be applicable to this new
technology because of the scale of the Internet.
The basis of Copyright laws is on the fundamental notion of
protection of intellectual property. This fundamental notion of
protection of intellectual property serves a broader purpose today
then ever before, as it is a moral, social, and economic barrier to
infringe on the owner?s of original works. This fundamental concept
of protection of intellectual property has become distorted to the
point where the fundamental principles of copyrights have been
abandoned by our society. This epidemic of copyright civil litigation
in our legal system becomes that ?when copyrights give control to
one person, it extracts some measure of freedom to imitate from
everyone else?4.
1 Barber, Hoyt and Logan, Robert. Protect Your Intellectual
Property ( Toronto: Productive Publications) p. 5
2 Ibid, p. 12
3 Goldstein, Paul Copyright?s Highway, (New York: HarperCollins
CanadaLtd) p. 145
4Ibid, p. 6
Bibliography
Goldstein, Paul. Copyright?s Highway. New York: Hill and Wing,
1994
Barber, Hoyt, and Logan, Robert. Protect Your Intellectual
Property. Toronto: Productive Publications, 1999
Industry Canada. A guide to Copyrights, Ottawa: Canadian
Cataloguing in Publication Data, 1994
Wright, Amy and McDaniel, Jeff. Recent Developments in
Copyright Law, Texas: Texas Intellectual Property Law Journal, fall
1995, Volume 4, No. 1