4. The Technological Revolution and Its Impact on Copyright Law

See Religious Tech Center v Netcom On-Line Comm 907 F Supp 1361 (ND Cal 1995) 1370. The Court ruled that:

The decentralized network was designed so that if one link in the chain be closed off, the information will be dynamically rerouted through another link.

Vinje (2000), pp. 559–560.

Hardy (1996), pp. 223–224 and Netanel (1996), p. 384.

Lewis (2000). It quotes Lars Ulrich, Metallica drummer who said:

From a business standpoint [trading files via Napster], this is about piracy--a.k.a. taking something that doesn’t belong to you; and that is morally and legally wrong. The trading of such information--whether it’s music, videos, photos, or whatever--is, in effect, trafficking in stolen goods.

Right owners resort to criminal law to stop unauthorised access, see, e.g., UMG Recordings Inc. v MP3.Com Inc. 92 F Supp 2d 349 (SDNY 2000); Recording Indust of America v Diamond Multimedia 29 F Supp 2d 624 (CD Cal 1998); Studios v Metro Goldwyn Mayer Studios Inc. 307 F Supp 2d 1085 (ND Cal 2004); Metro–Goldwyn–Mayer Studios Inc. v Grokster 125 S Ct 2764 (2005) 2775.

Lipton (2005), p. 145, Lipton argues the anti-trafficking and anti-device provisions in the DMCA and the CDPA can stifle individual users’ legitimate uses of works. Kretschmer presents similar arguments in ‘Digital Copyright: The End of an Era’ (2003), pp. 333–341. Possibly, computer codes may replace the law. See Wu (2003), pp. 679–752. Scholars argue copyright owners tend to implement their own policy with technological measures, see Ginsburg (2001), pp. 1613–1648; Cohen (1997), pp. 161–162 and Litman (1994–1995), pp. 29–54.

Luo (2006), p. 100. Dusollier also argues technology should not determine what copyright law should look like, see Dusollier (2005), pp. 201–204.

Historically, copyright law always responded to technological development. The invention of printing technology induced the birth and development of copyright law. For more discussion, see Dreier (1995), pp. 31–50. Entering the electronic era, an innovative copyright levy system for remuneration collection and distribution for copyright holders was employed for such analogue equipment as the photocopy machine, and analogue video and audio tapes. More recently this has come to include hard disks. For more discussions, see Akester and Akester (2006), pp. 159–168. Also see the Final Report for Institute for Information Law prepared by Hugenholtz et al. (2003) and Guibault (2003). For typical cases showing the interaction between copyright law and technology, see e.g., Sony Corp v Universal City Studios 464 US 417 (1984) 447; Teleprompter Corp v Columbia Broadcasting Sys Inc. 415 US 394 (1974); Buck v Jewell-La Salle Realty Co 283 US 191 (1931).

Zetter (2004). Sui generis database rights are found in Chapter III of the Legal Protection of Databases Directive 96/9/EC on 11 March 1996 and the Database and Collections of Information Misappropriation Act of 2003 (HR 3261) on 8 October 2003.

Geiger (2006a, b), pp. 368–370.

Watal (2001), pp. 218–221.

Serial numbers and passwords are examples of technical means.

They are employed to protect videotapes, audio CDs, software and DVDs. For example, the Content Scrambling System (CSS) is used widely to protect unauthorised access and duplication of DVDs; Sony BMG Music employs Extended Copy Protection (XCP) to control CD production.

Digital rights management (DRM) is the umbrella term for several technologies used to enforce pre-defined policies controlling access to software, music, movies and other digital data. In more technical terms, DRM deals with description, layering, analyses, valuation, trading and monitoring rights in a digital work. For additional details, see Vinje (1996), pp. 431–440. It has been suggested the final solution for information protection relies on a variety of technologies. For the names of a few, see Clark (1996), pp. 139–146; Poynder (2001), pp. 123–139 and Hollaar (2002), pp. 199–202.

Liu (2004), p. 129.

Samuelson (1996), pp. 134–139; Stefik (1996), pp. 226–234; Stefik (1997), pp. 139–140 and Clark (1995), pp. 97–101.

Litman (2001), p. 27.

Kretschmer (2003), p. 337 and Vinje (1996), p. 436.

A substantial number of legal scholars have debated and commented on the anti-circumvention rules. For example, Samuelson (1999), pp. 537–544; Samuelson (2001a, b), pp. 2028–2031; Ginsburg (2002), pp. 4–8; Hecht (2004), pp. 8–12 and Lai (1998), pp. 42–55.

Pub L No 105-304, 112 Stat 2860 amended title 17 of the United States Code (USC) by codifying relevant provisions as § 1201-1204.

Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

Gasser and Girsberger (2004).

Copyright, Designs and Patents Act of 1988.

Lipton (2005), pp. 139–142.

17 USC § 1201. Also see Copyright Office (US) The Digital Millennium Copyright Act of 1998: US Copyright Office Summary (December 1998).

17 USC § 1201(a)(3)(B).

S 296ZF of CDPA.

S 296ZF(2).

Dusollier (2005), pp. 202–203 and Burk (2002), p. 1096.

For example, Universal City Studios Inc. v Reimerdes 111 F Supp 2d 294 (SDNY 2000), aff’d 273 F 3d 429 (2nd Cir 2001) was the first test of the DMCA. The Court held the defender whom devised a device circumventing the CSS was liable under the DMCA. In United States v Elcom Ltd. and Sklyarov a computer programmer was charged with providing computer software to the public for circumvention. See also Lexmark Intern v Static Control Components 2003 US Dist LEXIS 3734 (ED Ky 2003); Studios v Metro Goldwyn Mayer Studios Inc. No C 02-1955 SI (ND Cal 2004).

17 USC § 1201(a)(1)(A).

Ss 296ZA(1)(b) and 296ZB(5) of CDPA.

17 USC § 1201(a)(1)(A) and (a)(2). For details, see Summary of DMCA 3 and HR Rep No 105-551, pt. 1 18.

17 USC § 1201(b).

S Rep 105-190, S Rep No 190, 105th Cong, 2nd Sess 1998, 1998 WL 239623 29.

Summary of DMCA 4. However, in Universal City Studios Inc. v Corley 273 F 3d 429 (2nd Cir 2001) 443-444, 60 USPQ 2d (BNA) 1953 1961–1962, it was ruled the fair use defence was not applicable to circumvention. Nevertheless, the Supreme Court acted differently in Chamberlain Group v Skylink Tech Inc. 381 F 3d 1178 (Fed Cir 2004) 1204, 72 USPQ 2d (BNA) 1225 1244. It ruled the DMCA did not prohibit circumvention if it did not constitute or facilitate copyright infringement. In Lexmark 387 F 3d 522 (6th Cir 2004) 546–549, 72 USPQ 2d (BNA) 1839 1856–1858, the Sixth Circuit substantially diminished the scope of access-control measures and upheld the legality of circumvention for interoperability between competing products.

Ss 296ZB(1)(c)(iv) and 296ZD(1)(b)(C) of CDPA.

Importing circumventing devices other than for private and domestic use is an offense, see s 296ZB(1)(b) of CDPA. According to the wording of s 296ZB(1)(c)(iv), possession in the course of business is prohibited.

Heide (2000–2001), p. 475; Gasaway (2002), pp. 269–308 and Ginsburg (2002–2003), pp. 119–126.

Vinje (1997), p. 235.

Art 11 of the WCT.

Koelman (2000), p. 274.

See subs 4 1 3.

17 USC § 1201(a)(2).

S 296ZD(1)(b) of the CDPA.

Burk and Cohen (2001), pp. 46–47. Lobbyists argued the substantial non-infringing standard established in Sony was insufficient for copyright protection. See statement of Peters, Register of Copyrights, Copyright Office of the United States in On-Line Copyright Liability Limitation Act: Hearing before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary 105th Cong (1997), p. 33.

Kreiss (1995–1996), pp. 1–77.

Id 74.

Id 41–70.

71–74.

17 USC § 1201(c)(1).

The exceptions are for (1) a non-profit library, archive, and educational institution; (2) reverse engineering; (3) encryption research; (4) minor protection; (5) personal privacy and (6) security testing.

17 USC § 1201(a)(1)(B)-(E).

For an evaluation of the ongoing administrative rule-making procedure, see Hartzog (2005), pp. 309–351.

Library of Congress Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies (2012) Fed Reg 65260-65279.

The permitted acts are enumerated in Pt 1 of Sch 5A of the CDPA.

Samuelson (2001a, b), p. 7; also see Samuelson (1999), pp. 544–546.

Hatch (1997–1998), pp. 749–750.

See the statement by Valenti (1997), pp. 78–82; the statement by Black (1997), pp. 256–265. The Business Software Alliance with its principal member being Microsoft advocated a cooperative system between computer and software makers that makes the use or copying of a protected work very difficult for law to endorse. For details, see Lipton (2005), p. 111 and Kerr et al. (2002–2003), p. 32.

See Lehman (1995). Many have criticised the report and an earlier draft because it overly favoured publishers’ interests. See Jaszi (1996), pp. 299–308; Kurtz (1996), pp. 120–126; Litman (1994–1995), pp. 29–54 and Samuelson (1996), pp. 369–440.

Samuelson (2001a, b), p. 7.

For example, see Davidson & Associates v Jung 422 F 3d 630 (8th Cir 2005), 2005 Copr L Dec P 29,043, 76 USPQ 2d (BNA) 1287.

Samuelson (2015) and Shayesteh (1999), pp. 213–216 and 223–224.

Art 11 of the WCT only requires Contracting Parties to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures by authors exercising their rights.

Gasser (2006), p. 102. The author proposed five principles in constructing a model anti-circumvention law, see 102–106. The first principle is defining core concepts clearly and unambiguously.

Producers of copying assisting devices at one time were considered contributory infringers. Historically, most European countries imposed levies on media or equipment used primarily for private copying. Since a device that might be used for circumvention can be multifunctional, it is unfair to prohibit such kind of devices simply because they have a circumvention function. In addition, end users usually have to pay for material with a pay-per-view format. A strict ban on devices that could assist circumvention is akin to a second subsidy for right holders.

Samuelson (2001a, b), p. 6.

Reichman and Franklin (1999), pp. 899–911.

A shrink-wrap licence is a protective wrapping for articles consisting of a clear plastic film that is wound around an article and then shrunk by heat to form a sealed, tight-fitting package. By tearing open a shrink-wrap, a user automatically assents to the enclosed software terms.

A click-wrap licence is often found on the Internet as a part of the installation of many software packages or where agreement is sought electronically.

Pub L No 94-553, 90 Stat 2541 (1976).

A shrink-wrap licence with software strengthens copyright protection for software producers. See Klinefelter (1997), p. 224.

Gasaway and Wiant (1994), p. 119 and Klinefelter (1997), p. 225.

86 F 3d 1447 (7th Cir 1996).

One function of s 301 of the 17 USC is to prevent states from giving special protection to works of authorship that Congress has decided should be in the public domain. S 301(a) reads:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

1455.

86 F 3d 1447 (7th Cir 1996) 1454.

1454.

1449.

See, e.g., Wrench LLC v Taco Bell Corp 256 F 3d 446 (6th Cir 2001) 455 held that a state law contract claim was not pre-empted by federal copyright law; similar decisions can be found in Lipscher v LRP Publications Inc. 266 F 3d 1305 (11th Cir 2001) 1318; Bowers v Baystate Technologies Inc. 320 F 3d 1317 (Fed Cir 2003) 1324–1325; Lattie v Murdach No C-96-2524 MHP, 42 USPQ 2d (BNA) 1240 1244–1245, 1997 US Dist LEXIS 3558 11–12 (ND Cal 8 Jan 1997); I Lan Systems Inc. v Netscout Service Level 183 F Supp 2d 328 (D Mass 2002) 338 where the enforceability of a click wrap licence is affirmed. But see Vault Corp v Quaid Software Ltd. 847 F 2d 255 (5th Cir 1988) 269, it affirmed a shrink-wrap software licence was a ‘contract of adhesion’ and therefore was unenforceable; Shoptalk Ltd. v Concorde-New Horizon Corp 897 F Supp 144 (SDNY 1995) 147, declined to enforce a contractual obligation to pay royalties after the expiration of a work’s copyright.

See In re RealNetworks Inc., Privacy Litigation Not Reported in F Supp 2d, 2000 WL 631341 (ND ILL 2000), upheld an arbitration clause, 5–6.

Register.com Inc. v Verio Inc. 356 F 3d 393 (2nd Cir 2004) 429; Specht v Netscape Communications Corp 150 F Supp 2d 585 (SDNY 2001) 593–594.

Elkin-Koren (1997), pp. 109–110.

Kabehie v Zoland 102 Cal App 4th 513 (Cal App 2 Dist 2002) 528; Green v Hendrickson Publishers Inc. 770 NE 2d 784 (Ind 2002) 789–790, held that ProCD relied on three other cases, each involving a contract right significantly broader than the simple right not to reproduce. Accordingly, none of them supported the broad conclusion the Seventh Circuit ascribes to them. Also see Arizona Retail Systems v Software Link 831 F Supp 759 (D Ariz 1993); Step-Saver Data Systems Inc. v Wyse Technology 939 F 2d 91 (3rd Cir 1991).

The phrase ‘Uniform Laws’ can be misleading. A Uniform Law is not law unless the National Conference has approved it. Otherwise it is simply a 50 state legislative proposal. The UCC is a success with some of its versions in nearly all US jurisdictions—see the Legal Information Institute ‘Uniform Commercial Code’ Cornell University Law School http://​www.​law.​cornell.​edu/​ucc/​ (accessed 27-08-2017).

Bitton (2006), p. 161. The UCITA is a proposed state contract law to regulate transactions for such computer information products as computer software, online databases, software access contracts and e-books.

See, e.g., Lemley (1999), pp. 166–168. It stated that Article 2B was not in line with the anti-trust doctrine; Effross (1997), pp. 1328–1359, showing that often the terms of a shrink-wrap licence only appear on a computer screen when a buyer attempts to run the software. The buyer either accepts the terms limiting further use or is not allowed to use the software. This is patently unfair because the terms only are displayed after customers have paid and opened the package.

Maryland and Virginia.

Guibault (2002), pp. 214–215.

Verstrynge (1992), p. 12.

Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs.

See also Recital 26 of the Directive.

Council Directive 96/9/EC of 11 March 1996 on the legal protection of databases.

Vermande v Bojkovski District Court of The Hague, decision of 20 March 1998 Informatierecht/AMI 1998 65–67.

See Hemnes (1993–1994), pp. 577–606, that discussed enforceability of restrictions on software use by referring to the doctrine of equitable servitudes; Radin and Wagner (1998), pp. 1295–1318 and Sterk (1985), pp. 615–662, discusses the extent law should interfere with private agreements. The article also justifies restrictions on equitable servitude on the grounds that such servitude creates significant negative externalities. Sterk’s analysis on real property also applies to intellectual property, see Lemley (1999), pp. 111–172.

Cohen et al. (2006), p. 709.

Ibid.

Lemley (1999), p. 123. In a discussion of the potential harm of adopting UCC Article 2B, Lemley describes three ways that the Article could expand the scope and power of contracts. First, Article 2B automatically recognises a transaction as a licence regardless of its substantial economic impact. Traditionally, a transaction has been distinguished as a sale, a lease, or a licence. Second, Article 2B prejudices customers’ rights in shifting the traditional focus on contractual norms of offer and acceptance to a straightforward recognition of the conclusion of contracts. The shift makes licences with digital products more akin to property right because of the lack of negotiation. Third, Article 2B endows contracts with omnipotent power to waive all legal default rules by making special agreements between contracting parties.

17 USC § 117 (a):

Making of Additional Copy or Adaptation by Owner of Copy--Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

For cases, see Vault Corp v Quaid Software Ltd. 847 F 2d 255 (5th Cir 1988) 270, holding that s 117 authorised the defendant to make a copy necessary to analyse and defeat a copyrighted ‘anti-copying’ program. A similar decision is found in Foresight Resources Corp v Pfortmiller 719 F Supp 1006 (D Kan 1989) 1009–1010.

The term ‘owners of a copy’ in s 117 has made some courts focus on whether a computer program user is really an ‘owner’ or a ‘licensee’. See MAI Systems Corp v Peak Computer Inc. 991 F 2d 511 (9th Cir 1993) 519 n 5, holding s 117 did not apply to software that was licensed since the user of such software was not the ‘owner’ of a copy. Therefore, the customer could not hire a third party to install or debug a purchased program. In contrast, see DSC Communications Corp v Pulse Communications 976 F Supp 359 (ED Va 1997) 362, holding that whether a defendant owned a copy under s 117 should be determined by the economic realities of the transaction rather than simply by the form of a licence.

Reverse engineering of software is also called ‘decompilation’ that involves working backwards from object codes to produce source codes that can be used to devise a new program without simply duplicating the original, see Johnson-Laird (1993–1994), pp. 843–902. Most courts and most commentators agree that reverse engineering is legitimate, particularly for achieving interoperability. See, e.g., DSC Communications Corp v DGI Technologies Inc. 81 F 3d 597 (5th Cir 1996) 601; Bateman v Mnemonics Inc. 79 F 3d 1532 (11th Cir 1996) 1539 n 18; Sega Enterprises Ltd. v Accolade Inc. 977 F 2d 1510 (9th Cir 1992) 1527–1528; DSC Communications Corp v Pulse Communications 976 F Supp 359 (ED Va 1997) 364. For comments, see Cohen (1994), pp. 1091–1202; Graham and Zerbe Jr. (1996), pp. 61–142; Karjala (1994), pp. 1016–1018; O’Rourke (1995), p. 534; Rice (1994), p. 1168; Samuelson (1993), pp. 49–118 and Teter (1993), pp. 1061–1098, argues rightfully so that the value of computer programs depends very much on interoperability.

See HR 94-1476, 94th Cong (1976).

The ProCD case is an example. Minassian (1997–1998), p. 593.

Hardy (1995), p. 2.

Lemley (1999), pp. 143–144.

Lemley (1999), p. 145; Reichman and Franklin (1999), p. 922 and O’Rourke (1995), pp. 534–541. The author also proposed to expand the treatment of antitrust law rather than merely to rely on the pre-emption doctrine, at 545.

Guibault (2002), pp. 121–152.

Lemley (1999), pp. 144–146. However, the fair use doctrine is sometimes considered more than merely a default rule, see Karjala (1996–1997), p. 520; Lemley (1996–1997), pp. 1042–1083 and Rice (1992), pp. 556–570.

Lemley (1999), p. 146. 17 USC ss 203(a)(3) & (5) and 304(a)(3) & (5).

US Constitution art VI. Stewart v Abend 495 US 207 (US Cal 1990) 228. The Court stated that:

Absent an explicit statement of congressional intent that the rights in the renewal term of an owner of a pre-existing work are extinguished when his work is incorporated into another work, it is not the role of this Court to alter the delicate balance Congress has labored to achieve.

Hardy (1995) para 23.

A host of courts have agreed that contracts are not equivalent to statutory rights. In ProCD 1455, the Court held a simple two-party contract was not equivalent to any of the exclusive rights within the general scope of copyright and therefore was enforceable. Warlick IV (1997), pp. 168–169 criticised the approach. In contrast, see Jaccard (1997), p. 647. The author argued that the rights conveyed by a contract may be equivalent to copyrights even though the contract law has different elements. The District Court in PC Films Corp v Turner Entertainment Co 954 F Supp 711 (SDNY 1997) 715 concluded that an agreement that bound a licensee beyond the expiration of copyright was enforceable because it was ‘merely a contract between two private parties’.

The Second Circuit rejected this approach in dictum, though it concluded not to resolve the issue of whether restrictions on licensees could survive the expiration of copyright. See PC Films Corp v MGM/UA Home Video Inc. 138 F 3d 453 (2nd Cir 1998) 458, the Court stated that:

We are not convinced that this analysis gives sufficient weight to federal copyright law and the constitutional principle that a grant of copyright rights can be for ‘limited times’ only.

Hardy (1995) para 23.

Lemley (1999), p. 148, the author concluded that three types of public policy can pre-empt contracts, namely copyright misuse, restrictions from federal law and restrictions from state law.

Lemley (1999), p. 148, quoting about a number of cases in which courts pre-empted the contracts attached to products or services that contradicted such intellectual property rules as the fair use and trade secret doctrines. For recent examples, see, e.g., Markogianis v Burger King Corp 42 USPQ 2d 1862 (SDNY 1997) 1865 pre-empted a claim for implied contract to protect ideas; American Movie Classics v Turner Entertainment Co 922 F Supp 926 (SDNY 1996) 930–931; Wright v Warner Books Inc. 953 F 2d 731 (2nd Cir 1991) 741 held that a broad construction of a book licence restriction would conflict with the fair use doctrine; Wolff v Institute of Elec & Electronics Eng 768 F Supp 66 (SDNY 1991) 69; SOS Inc. v Payday Inc. 886 F 2d 1081 (9th Cir 1989) 1088; Vault Corp v Quaid Software Ltd. 847 F 2d 255 (5th Cir 1988) 270; Saturday Evening Post Co v Rumbleseat Press Inc. 816 F 2d 1191 (7th Cir 1987) 1199–1200, refused to enforce an agreement by a licensee not to challenge the possible copyrighting of a licensed work.

Lemley (1999), p. 148.

WIPO Diplomatic Conference Records and Neighboring Rights II 672.

Vinje (1997), p. 231.

Ficsor (2002), p. 112.

WIPO Diplomatic Conference Records and Neighboring Rights II 670.

WIPO Diplomatic Conference Records and Neighboring Rights II I 670–671.

WIPO Diplomatic Conference Records and Neighboring Rights I 670–671.

Vinje (1997), p. 233.

WIPO Diplomatic Conference Records and Neighboring Rights II 672–673. Norway, Denmark, Switzerland and a number of other countries were concerned that transient and incidental copying could be protected as reproduction under the Berne Convention.

Agreed statement concerning Article 6 of the WCT.

Art 5(1) of the Information Society Directive.

Van Coppenhagen (2002), p. 435.

Preamble 33 preceding to the Information Society Directive.

S 17(6) of the CDPA 1988.

S 28A.

Dreier and Hugenholtz (2006), p. 371.

Harper (1994).

Harper (1994).

Art 19(1) of Federal Law on Copyright and Neighboring Rights of 9 October 1992, as last amended on 16 December 1994 (WIPO English version).

Tremlett (2006).

S 53(5) Law on Copyright and Neighboring Rights of 9 September 1965 (Federal Law Gazette [BGBl] Pt I 1273), last amended on 8 May 1998 ([BGBl] Pt I 1014) (WIPO English version).

Art 12(3) of Act on Copyright in Literary and Artistic Works of 30 December 1960 No 729, last amended on 1 July 2005 (WIPO English version).

Art 12 of Protection of Copyright and Rights Related to Its Exercise of 22 April 1941 No. 633, as last amended on 30 April 2010 (WIPO English version).

Clark (1996), p. 139.

Clark (1996), p. 139. Also see Chong et al. (2003), pp. 434–435. The authors proposed a licence named LicenseScript Engine allowing users to assert new rights in a licence issued by a copyright owner as well as allowing the copyright owner to monitor asserted rights and subsequent usage of the work by an audit logging mechanism. The copyright owner can allow or disallow the asserted rights and bring an action against any subsequent user. However, it is unclear what rights a user enjoys if the final decision is subject to the copyright owner’s discretion.

Geiger (2006a, b), p. 372.

Geiger et al. (2008), p. 685.

Gasser and Ernst (2006), p. 11.

11.

Art 9(2) of the Berne Convention provides:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

A good number of scholars have suggested adopting a non-voluntary licensing system to address the copyright issues caused by P2P technology. For example, see Netanel (2003), p. 19; Fisher (2004), pp. 199–251 and Lessig (2001), p. 254.

For example, the German Supreme Court had private copying levies from the 1950s to 1960s in a series of cases. The manufacturers and distributors of recording equipment were considered to have contributory liability in copyright infringement cases. More recently levies have been imposed on digital media such as CD-ROMs and even digital equipment, see Senftleben (2004), pp. 11–12 and 37.

Senftleben (2004), p. 37.

Senftleben (2004), p. 34. Also see Reinbothe (2003).

Art 5(2)(b) of the Information Society Directive states:

in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned.

Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property.

Preamble 35 of the Information Society Directive states:

In cases where rightholders have already received payment in some other form, for instance as part of a licence fee, no specific or separate payment may be due. The level of fair compensation should take full account of the degree of use of technological protection measures referred to in this Directive. In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise.

Preamble 35. Activities with little effect on right owners’ economic benefits include recording broadcasts for later perusal, and converting the format of a copyrighted work to play it on different platforms as long as the material is legally acquired. However, the de minimis rule is eroded in Bridgeport Music Inc. v Dimension Films 410 F3d 792 (6th Cir 2005). The Court of Appeals held usage of any section of a music work, even sampling a two-second chord, would be in violation of copyright unless the copyright owner gave permission and was compensated. This decision is deemed to have extremely adverse effect on the balance between creativity and copyright protection, see Free Expression Policy Project (2005).

Preamble 36.

Preamble 40–41.

Hugenholtz (1996), p. 83.

Art 11 of the Berne Convention.

Art 11ter.

Arts 11bis & 11ter.

Art 11.

Arts 11ter & 14.

Art 8 of the WCT.

Ginsburg (2004), pp. 234–247.

Ginsburg (2004), pp. 235–236.

Art 11bis of the Berne Convention.

Ginsburg (2004), p. 241 and Reinbothe and von Lewinski (2002), p. 103.

Ginsburg (2004), p. 244.

Ginsburg (2004), p. 244.

Agreed statement concerning Article 8 of the WCT.

Ginsburg (2004), p. 243.

Nimmer and Nimmer (2003) ch 12 B.05[A][2].

Amendments of the CDPA SI 2003/2498.

S 4 of the Copyright and Related Rights Regulations.

S 20 of the CDPA.

MacQueen and Waelde (2006), p. 11.

Schlosser (2001), pp. 15–25.

Molz (1994), pp. 71 and 93.

For software is an important means to carry information, see Brandy et al. (1991), p. 81. Software also is important for the library collection, see Klinefelter (1997), p. 222.

The Computer Software Rental Amendments Act of 1990: The Nonprofit Library Lending Exemption to the ‘Rental Right’ (1994) (Register’s Report), pp. 35–36.

Computer Software Amendments Act 1990, Pub L No 101-650, 104 Stat 5089, tit VIII.

Klinefelter (1997), p. 219.

S 802 of the Computer Software Amendments Act 1990.

Klinefelter (1997), p. 220.

Klinefelter (1997), p. 220.

Chafee (1928), p. 982.

Register’s Report 35-36.

EC Directive 2002/38/EC of 7 May 2002, amending and amending temporarily Directive 77/388/EEC as regards the value added tax arrangements applicable to radio and television broadcasting, see Annex.

Boyce (1997), p. 442.

See American Geophysical Union v Texaco Inc. 802 F Supp 1 (SDNY 1992) 26; American Geophysical Union v Texaco Inc. 37 F 3d 881 (2nd Cir 1994) 896.

Boyce (1997), p. 445.

Boyce (1997), p. 442. Moreover, the on-demand service’s pay-per-view format limits users’ ability to copy a copyrighted work even though they can access the work, see Harnad (1996), p. 120.

Boyce (1997), p. 447.

Boyce (1997), pp. 446–447. Having considered several ways to amend the copyright law, Boyce finally came to a radical conclusion that to promote science and learning, copyright should be abolished from applying to learning literature.

Bennett and Matheson (1992), p. 36.

Hilty (2007), p. 329.

Hilty (2007), pp. 324–327.

Visser (2007).

Hilty (2007), p. 329.

Hilty (2007), p. 350.

Hilty (2007), p. 446. ASCAP protects rights of its members including composers, songwriters, lyricists and music publishers by licensing and distributing royalties for non-dramatic public performances of their copyrighted works. ASCAP functions as an intermediary between copyright proprietors and users.

Hilty (2007), p. 446.

Hilty (2007), p. 447.

McClure (1997), p. 186.

Ensign (1997), p. 155.

Roche (1993), p. 12 and Alexander (1995), p. 489.

Alexander (1995), p. 489.

Ensign (1997), pp. 156–158.

S 108 of the Copyright Act of 1976.

S 108(a).

S 108(g).

S 109(b)(1)(A).

S 107(3). For example, in Radji v Khakbaz 607 F Supp 1296 (DCDC 1985) 1302, the court held that the defendant’s argument of the insignificant portion (2.6%) of the work that was used was ‘frivolous’. It stated:

[i]t obviously does not matter, in law, what proportion of a particular publication consists of bootleg material; what is significant is how much of a copyrighted article or book is being reprinted.

In Basic Books Inc. v Kinko’s Graphics Corp 758 F Supp 1522 (SNDY 1991) 1533, the Court emphasised how substantial what is being copied is more decisive than the length of the copied piece. The copying of a mediocre long paragraph might not be copyright infringement but the copying of a short essential piece would be an infringement. In the Basic Books case, the reproduction of 5% of the work was considered sufficient to constitute a copyright infringement, at 1527.

Ensign (1997), p. 63.

157–158.

Section 109(b)(1)(A) of the Copyright Act of 1976.

Crews (1997), p. 390.

Ss 110(3) & 110(9) of the Copyright Act of 1976.

Crews (1997), p. 391.

S 110(2)(C)(i) of Copyright Act 1976.

Crews (1997), pp. 391–392.

Lutzker (2003), p. 253.

S 112(b)(1) of the Copyright Act of 1976.

S 112(b)(2).

Crews (1997), p. 392. Boyce suggested in order to encourage learning as well as distance education, non-profit organisations should be allowed to display or reproduce copyrighted materials for instructional purpose, see Boyce (1997), p. 446. See also Wynbrandt (1990), pp. 224–225.

Crews (1997), p. 392.

However, policymakers favoured copyright proprietors by granting them exclusive control of transmitting their works; see Intellectual Property and the National Information Infrastructure 95–96 and 213–218.

Pub L No 107-273, 116 Stat 1758.

Crews ‘New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act’ American Library Association.

Art 12(2) of the E-Commerce Directive.

S 512(c) of OCILLA.

S 512(g).

Stratton Oakmont Inc. v Prodigy Services Co 1995 WL 323710 (NY Sup Ct).

Cubby Inc. v CompuServe Inc. No 90 Civ 6571 (PKL), 776 F Supp 135 (SDNY1991).

Business Wire ‘EMI Music Launches DRM-free Superior Sound Quality Downloads across Its Entire Digital Repertoire’ (2007).

Business Wire ‘EMI Music Launches DRM-free Superior Sound Quality Downloads across Its Entire Digital Repertoire’.

Downloading music has not significantly reduced the sale of CDs, see Liebowitz (2003), p. 9.

Takeyama (2003), p. 62. Since some works may be copied more frequently than others, copyright proprietors charge for the more frequently copied works at a higher price to indirectly obtain revenue from copies made from them, see Liebowitz (2003), p. 13.

Takeyama (2003), p. 62.

Business Wire ‘EMI Music Launches DRM-free Superior Sound Quality Downloads across Its Entire Digital Repertoire’.

Lessig (2001), pp. 12–13.

Alternatively, musicians can, on their own, sell their CDs and other tangible products directly in online shops, or distribute their music online via digital transmission technology. See Regner (2003), p. 111. The author suggests a concentrated music industry is not the only efficient way to distribute music and collect royalties for artists with digital technology. Instead, artists should consider managing their works with the assistance of technology.

Liebowitz (2005), p. 42.

Liebowitz (2005), p. 42. Quality sound tracks sold at $1.29 without a DRM restriction while standard sound tracks sold at $0.99 with DRM applied.

Tummon (2008).

Belleflamme (2003), p. 50.

A&M Records Inc. v Napster Inc. 284 F 3d 1091 (9th Cir 2002).

In re Aimster Copyright Litigation 334 F 3d 643 (7th Cir 2003).