Constitute Copyright Infringement Research Articles

The TuneIn case or communication to the public in the UK after Brexit: the status quo with targeting as a governance tool

Abstract TuneIn is a case dealing with a portal service on the Internet that allows users to listen to Internet radio stations from around the world and even to select stations that play their favorite music at any given moment in time. The UK courts had to decide whether TuneIn’s activity amounted to a communication to the public of the music played by the radio stations. Because it is not authorized, it will constitute copyright infringement. The courts established that TuneIn did target the public in the UK and that on that basis, there was a communication to the public. In a Brexit context, the court refused to diverge from the caselaw of the Court of Justice of the European Union and put in place stringent requirement for future cases that may warrant any such divergence.

Tiny, Tiny Copyright: An Examination of the Copyrightability of Sampler Instruments and Its Impact on Derivative Works

Tiny, Tiny Copyright: An Examination of the Copyrightability of Sampler Instruments and Its Impact on Derivative Works

Introducing a Levy Scheme to Online Educational Use of Copyrighted Works

It is common for teachers to use others' copyrighted works for the purpose of teaching. The current copyright law in many nations only exempts educational use in the context of offline classroom teaching. The use of others’ copyrighted material in online teaching may still constitute copyright infringement. To protect teachers from the chilling effect of copyright infringement, to safeguard the public's freedom to obtain knowledge, and to ensure the commensurability of the profits and responsibilities of online teaching platforms, this paper proposes a levy scheme for online teaching. Under the levy scheme, teachers are free to use others’ published work for the purpose of online teaching, provided that such use does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interest of the copyright owner. Online teaching platforms should remunerate the copyright owner of the work used in the platform according to the number of participants of the course that uses such work.

Copyright law issues in the context of video game Let's Plays and livestreams

Video game content has grown increasingly popular on internet service providers such as YouTube and Twitch. This genre of uploaded material includes the gameplay of internet users, in the form of pre-recorded ‘Let's Play’ videos, as well as livestreamed playthroughs. However, the application of current copyright law principles to these kinds of content is still a grey area. This legal uncertainty can be attributed to the absence of binding judicial precedent on whether video game Let's Plays and livestreams constitute copyright infringement or fair use. More recent legislative provisions intended to update copyright law for current digital technology provide little assistance, as their implementation by internet platforms has perpetuated a practice of favouring the interests of game developers over users who produce Let's Plays and livestreams. This article discusses the problems of applying existing copyright law to video game playthroughs uploaded online, as well as the drawbacks of the automated tools YouTube and Twitch have developed to manage these types of content in their systems. In order to address these issues, suggestions for copyright law reform will be explored. However, in the absence of imminent legislative amendments, I conclude that compulsory licensing arrangements, and making modifications to YouTube's and Twitch's content scanning tools are the most viable means of achieving a better balance between the interests of game developers, the internet platforms, and Let's Play creators and game streamers.

Fair Use in Post-publication Peer Review

The Wikipedia page on fair use (http://en.wikipedia.org/wiki/Fair_use) states: “In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.” The exact wording of U.S. Code § 107 is described in Appendix 1. In plain speak, provided that the ultimate objective is academic or educational, parts of a manuscript can be used to display errors, or to make commentary or criticisms. Since post-publication peer review (PPPR), a tool used to correct the literature through critical analysis of the already published literature (Teixeira da Silva 2015a), often relies on the use of visual aids to make comparisons between duplicated material, to facilitate understanding by the readership, fair use thus plays a central role in PPPR, and forms part of the road map to achieve structured, reliable, understandable and sound PPPR (Teixeira da Silva 2015b). Scientists who wish to engage in PPPR are reticent, as they do not know their legal or ethical limitations. Thus three key questions arise, and answers are provided to address these. 1) Is fair use copyright infringement? No, since it is an exception to copyright law, within reasonable limits. 2) Is fair use duplication or partial duplication (of text, tables, or figures)? No, since the source is fully described and permission is not required to reuse parts of copyrighted material for academic purposes, within reasonable limits, such as PPPR. 3) Is fair use unethical? If used correctly, while referencing the original source of the copyrighted material, there are no ethical constraints. According to the DCMA (http://www.dmca.com/FAQ/Fair-Use), fair use is now widely accepted around the world, and thus the limited academic use of copyrighted material from any country would thus not constitute copyright infringement. It is expected, however, that as more literature becomes challenged, that some publishers may turn to DCMA take-down notices to try and silence the voices of academic criticism.

Balancing in Light of the Purposes of Copyright: Whether Video Music Lessons Constitute Copyright Infringement

Faced with diminished sources of revenue, school systems in recent years have cut funding for music education. Looking for alternative ways to learn about music, budding musicians have turned to the Internet. On YouTube and other Web sites, visitors can view thousands of instructional videos on how to play popular songs, complex genres, and a seemingly unlimited variety of musical techniques. Despite altruistic motivations, creators of video music lessons routinely use copyrighted content during lessons. This article argues that the defense of fair use should protect the creators of video music lessons from liability in a copyright infringement lawsuit. Specifically, the author argues that it is the purpose of copyright law to promote knowledge and that video music lessons further this objective.

Copyright Issues Arising from Tweets and Re-tweets: A Jordanian Prospective

Abstract This article presents an overview of the copyright issues arising from tweets and re-tweets from a Jordanian prospective. While this is not a comparative study, the author refers in brief to other jurisdictions, in particular to the US Copyright Act and the United Kingdom Copyright, Designs and Patents Act, in addition to selected cases from the above-mentioned jurisdictions. This article addresses the following three main questions. The first issue questions whether the 140-character limit enjoys copyright protection? And, therefore, would a re-tweet constitute copyright infringement? The second issue concerns whether posting an original image on a Twitter post can be considered a copyright infringement. The final issue to be discussed in this article is whether reposting a Tweet constitutes fair dealing.

Copyright-Exempt Nonprofits: A Simple Proposal to Spur Innovation

New types of social networks have recently emerged that have facilitated the growth of a different kind of user-generated content: curation. The user finds various content from the Internet and then organizes or “curates” the content in a social network platform in a way that better serves the user’s purpose. For example, on Pinterest, users can “pin” content from the web onto their virtual “pinboards” that have topical categories of the users’ choice. The content typically involves a photograph (in reduced size) from the original web page that is then displayed on the user’s pinboard. Clicking on the photograph displays the actual photograph (or a copy of it), but displayed on the Pinterest website, with attribution and a link to the original website. In this way, the user is able to organize content from the web visually by the user’s own categories, such as favorite recipes, yoga instruction, furniture to buy, or places to travel.In the background of Internet curation lurks copyright law, waiting to rear its proverbial head. The kind of activity Pinterest facilitates may constitute copyright infringement, although at least an arguable defense based on fair use or the DMCA safe harbors exists. If a lawsuit is filed, an adverse decision against the site could put in jeopardy this emerging practice of content curation — quashing it generally.This Article offers a way for Congress to address, more generally, the recurring problem created by new speech technologies that disrupt copyright law. The proposal is for Congress to enact a copyright exemption for qualifying 501(c)(3) “charitable” non-profit entities. These entities will be “copyright exempt” for a limited purpose to develop and deploy new kinds of Internet speech technologies free for the public’s use. Under the proposed Nonprofit Internet Copyright Exemption (NICE) Act, such nonprofits and their users will enjoy a copyright exemption for noncommercial activity involving user-generated content, including Internet curation.

Sequential Musical Creation and Sample Licensing

All musical creation builds on previous works. But using fragments of existing musical works in a new work can often constitute copyright infringement. Copyright law, in cases like Bridgeport Music v. Dimension Films (6th Cir. 2005), has recently increased its restrictions on musicians who wish to engage in sampling, defined as the practice of using other creators’ sound recordings to create new music. The paper describes a model of copyright holders’ and samplers’ incentives to create in light of the need to negotiate licenses for sample-based works to avoid violating copyright law. Even in the absence of traditional transaction costs or royalty stacking, a distinct kind of inefficiency emerges. Green and Scotchmer (1995) have shown that, in the patent context, bargaining may not divide the profit from the sample-based derivative work between upstream and downstream creators in a way that provides both groups with sufficient incentives to create. This paper builds on and extends Green and Scotchmer’s theory by showing that innovation occurring in sequence presents a reciprocal problem. Both upstream and downstream creators have incentive constraints; pure theory cannot say which incentive constraint is less likely to be satisfied. This problem is exacerbated in the sample-licensing context because ex ante agreements are not usually possible. An optimal system for regulating sequential creation would account for the incentives of both upstream and downstream creators, to the benefit of both groups and the public. Congress and the courts have probably failed to achieve this balance, since the economic analysis of courts (especially the Sixth Circuit) has focused mainly on upstream creators’ incentives.

How will the scope of protection afforded to computer software be defined?

In its preliminary decision the High Court for England and Wales ruled that emulating the functionality of a computer program does not constitute copyright infringement. This affirms the current prevailing view of the British Courts on the interpretation of the EU Software Directive. However, the Court referred several questions to the Court of Justice of the European Union (ECJ) that seek clarification on how both the Software Directive and the Information Society Directive are to be interpreted in order to define the scope of protection available to computer software.

The effect of the Digital Economy Act 2010 upon ‘semiotic democracy’

The Digital Economy Bill received royal assent on 12 April 2010. It was introduced in November 2009. At that time, it was much criticised for the changes that it sought to implement, namely a requirement under clause 10 for Internet service providers (ISPs) to keep a list of copyright infringers and in clause 17, a power held by the Secretary of State to make ad hoc changes to the Copyright, Designers and Patents Act (CDPA) 1988 without Parliamentary debate. As a result of amendments made in March 2010, clause 17 was significantly changed so that courts could request ISPs to block access to infringing sites – an amendment that provoked as much criticism as the original clause. The changes that the Act seeks to introduce could significantly impede the use of copyright works for even non-infringing ends, and they do not remedy many of the existing issues with copyright, namely (1) underlying uncertainty for content recipients as to whether a re-use will constitute copyright infringement, and (2) bias in the balancing exercise towards emphasising the skill, labour and effort of existing right holders. In fact, the Act will enhance these characteristics. The paper concludes by considering how the Digital Economy Act could have been implemented to mitigate these undesirable aspects of current copyright law.

'Making Available': When an Offer to Distribute is Equivalent to Distribution

Imagine a hypothetical scenario where you could be sued for copyright infringement - and lose - for offering to loan someone a CD you bought, or worse, for misplacing a book you borrowed. This is not yet the law, but if the courts accept an innovative argument put forward by the Recording Industry Association of America (RIAA), a similarly disturbing conclusion could apply to digital content. This Note examines whether the distribution right under the Copyright Act, 17 U.S.C. Sec. 106(3) requires solely an offer, or both an offer and receipt, to constitute copyright infringement. If the RIAA's theory were to be accepted, the act of copyrighted content to another person without permission from the copyright holder, such as by loaning a CD or posting a hyperlink, would constitute copyright infringement. Furthermore, plaintiffs would not be required to show evidence of intent, thus creating a valid cause of action even if the offer to distribute had been unintentional. In execution, courts have disagreed over whether a plaintiff must provide evidence of actual receipt. Some that have declined to adopt the making available argument have done so because the capacity of copyright owners to pursue remedies against infringers is neither diminished nor restricted without it. Under current law, plaintiffs need only present evidence that their distribution rights were in fact violated in order to successfully prevail in a copyright infringement lawsuit. In Part I, we discuss the proposed argument in detail and the outcome of prior cases ruling on the theory. In Part II, we discuss various approaches to the question, including arguments based on the plain language of the Act, legislative history, and case law. In Part III we discuss potential future effects and policy implications. And in Part IV we discuss possible solutions requiring either private agreements or legislative action.

Link to live webcast may constitute copyright infringement

Having found that a deep hyperlink on Davis' website to live streaming of a motorcycle race owned by Live Nation constitutes copying, the court granted Live Nation's Motion for summary judgment in its copyright infringement claim and enjoined Davis from maintaining the link.

Revolution in Canadian Copyright Law?

In Canada, judicial and legislative developments in 2004 with respect to copyright have, in many respects, constituted a virtual revolution. The Supreme Court of Canada (SCC) released two major copyright cases in rapid succession: CCH Canadian Ltd. v. Law Society of Upper Canada (SCC, decision of 4 March 2004, CRI 2004, p. 82 with remarks by Lucas; 2004 SCC 13 [CCH]), which examined the scope of originality, authorization and fair dealing; and Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers (SCC, decision of 30 June 2004, CRI 2005, p. 56, in this issue; 2004 SCC 45 [SOCAN]), which dealt with the application of the Canadian Copyright Act (R.S.C. 1985, c. C-42) to Internet transactions, the concept of authorization in this context, and the liability of ISPs (Internet Service Providers). The impact of these decisions lead to the highly controversial case of BMG Canada Inc. v. John Doe (Federal Court, decision of 31 March 2004, CRI 2004, p. 87 with remarks by Nitoslawski; 2004 FC 488 [BMG Canada]), in which the Federal Court held on the basis of CCH that downloading music files via peer-to-peer networks did not constitute copyright infringement. This article reviews the main themes (II.) of these cases (III.) and explores the significant expansion of user rights at the expense of author rights they have reflected. Clearly, if there is a revolution occurring in the courts, it is not one in which authors are winning (IV.).

From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context

Tremendous controversy exists today about legal treatment of hip hop music. Having just reached its thirtieth birthday, hip hop is now the second most popular type of music in the United States and an important musical and cultural force globally. The advent of hip hop has raised serious copyright law concerns. At the core of such concerns is the issue of sampling, or the use of pieces of existing recorded music within hip hop works, which has been deemed in some instances to constitute copyright infringement. Professor Arewa discusses issues that arise in the application of copyright to music generally as well as historical and cultural aspects of the hip hop debate. In discussions of music, particularly in the legal field, hip hop is considered within a tradition that values independent and autonomous authorship of musical works and that consequently reflects pervasive romantic author discourse. Within such discussions, the manner of music production of great masters of the European classical tradition may be seen as a model of musical production against which musical forms such as hip hop are often at least implicitly measured. The image of the classical tradition embedded in such discussions is, however, inaccurate and distorted. The classical music tradition is an invented tradition that was largely constructed in the nineteenth century and that no longer operates as an active tradition to which new works are being added in any quantity. Actual practice within the classical tradition varies significantly from the idealized imagery of this tradition evident in legal discourse about music. The image of the classical tradition is important because through characterizations of this tradition, hip hop musical production is distinguished from other methods of making music in a number of ways through the use of a series of implicit and explicit dichotomies. In looking at this classical tradition historically, however, it is clear that much continuity underlies the production of music generally, particularly in relation to musical borrowing, which was common in the European classical tradition in actuality as opposed to its constructed history. The varied uses of musical borrowing suggest that more careful consideration needs to be given to the extent to which copying and borrowing have been and can be a source of innovation within music and by extension elsewhere. Recognition of such borrowing needs to be incorporated into existing copyright frameworks as a basis for the development of commercial practices and liability rule based legal structures for treatment of music, including hip hop, which uses existing works in its creation.

Reforming Information Law in Copyright's Image

The First Amendment has always provided a completely different standard with regard to liability for actions that constitute speech as compared to actions that constitute copyright infringement. They're really just apples and oranges. And I think it would disserve both areas of law -- I know there's been some discussion, some people have attempted to link these two areas of law recently, and I think it does a disservice to both areas of law, even though the same technologies may be involved. And I think it really does a disservice both to the law of the First Amendment and the law of copyright to attempt really to try to analogize from one to the other.

Academic Library Reserves, Photocopying, and the Copyright Law

Does the common, and academically important, practice of photocopying copyrighted materials and putting them on reserve for use by students constitute copyright infringement? The attention this question has received is exceeded only by the inconclusiveness of the answers. Some commentators are sure that it constitutes infringement; others are equally sure that it does not. The following comments attempt to search out the line between permissible and impermissible photocopying for such purposes, and to spell out the considerations that suggest permissibility in most instances. Reserves, for purposes of this discussion, are defined as selected writings made available to individual and successive students for educational purposes, subject to sharp time limitations and, usually, restrictions on physical removal from the library premises. The copyright issue does not arise except with respect to copyrighted materials that have been copied without the express or implied consent of the copyright owner. Nor is the present discussion concerned with libraries that are connected with commercial organizations, or the possible liability of persons other than the libraries or teachers for instance, students who engage in unauthorized photocopying on unsupervised machines (see Appendix A, section 108[f]). In short, we are concerned here only with the teacher or the library acting upon the teacher's request or on its own initiative who makes, or has made, the unauthorized copies in question and places them on reserve. Since such practice involves a copying within the meaning of the copyright law, it constitutes infringement (see Appendix A, section 106[l]) unless such use is permitted by section 107 or 108 of the Copyright Revision Act of 19761 (see Appendix A).

Academic Library Reserves: Photocopying and the Copyright Law

Does the common, and academically important, practice of photocopying copyrighted materials and putting them on reserve for use by students constitute copyright infringement? The attention this question has received is exceeded only by the inconclusiveness of the answers. Some commentators are sure that it constitutes infringement; others are equally sure that it does not. The following comments attempt to search out the line between permissible and impermissible photocopying for such purposes, and to spell out the considerations that suggest permissibility in most instances. Reserves, for purposes of this discussion, are defined as selected writings made available to individual and successive students for educational purposes, subject to sharp time limitations and, usually, restrictions on physical removal from the library premises. The copyright issue does not arise except with respect to copyrighted materials that have been copied without the express or implied consent of the copyright owner. Nor is the present discussion concerned with libraries that are connected with commercial organizations, or the possible liability of persons other than the libraries or teachers for instance, students who engage in unauthorized photocopying on unsupervised machines (see Appendix A, section 108[f]). In short, we are concerned here only with the teacher or the library acting upon the teacher's request or on its own initiative who makes, or has made, the unauthorized copies in question and places them on reserve. Since such practice involves a copying within the meaning of the copyright law, it constitutes infringement (see Appendix A, section 106[l]) unless such use is permitted by section 107 or 108 of the Copyright Revision Act of 19761 (see Appendix A).