
The Digital Millennium Copyright Act (DMCA) of 1998 checks the piracy of copyrighted work. Its anti-circumvention provision makes it illegal to bypass cyber firewalls or to distribute tools that enable such bypasses.[1]
A copyright is a bundle of exclusive rights that enforces the legal rights of an author, artist, composer or creator, and regulates the use of his/her work by others.[1] Without the creator’s permission, a copyrighted work cannot be reproduced, distributed, or adopted by others. Copyright law protects literary, dramatic, artistic, and musical works, and computer programs. Any original work of writing can be copyrighted unless clearly indicated as freeware.[2]
A copyright owner has the exclusive right to reproduce the work by making and distributing copies to the public through renting, sales, or donations, to derive works from the original, and to publicly perform or display the work.[3] Generally, the creator owns the copyright, but if he creates it in the course of employment or under an appropriate contract, the employer or the contracting party owns the copyright. In case of works created collaboratively, co-creators jointly own the copyright.[4]
Like any other property, a copyright holder can sell or hand over the copyright to someone else. A proper copyright notice generally requires the symbol “©” or the word “Copyright,” together with the copyright holder’s name and the year of first publication.[5] The notice informs others of the copyright and prevents innocent infringement. For works created in 1978 or thereafter, the copyright term begins upon creation and the term continues for the life of the author plus 70 years.[6] For pseudonymous or anonymous works, and works made for hire, the term continues until 95 years from first publication or 120 years from creation, whichever expires first.[7] A copyright owner is entitled to prohibit downloading and printing.
In copyright infringement litigation, there exists an affirmative defense called fair use. Fair use is the right to use a copyrighted work under certain conditions without permission from the copyright owner. The doctrine permits the use of works in a manner that does not unfairly dispossess any rights of previous copyright owners. It prevents the rigid application of copyright law that would otherwise suppress the very creativity the law is designed for.
It is sometimes challenging to determine the fair use of a product. One can use a copyrighted work in a way that appears to be legal, but still be subject to a lawsuit.[8] For example, a movie critic decrypts a film in a CD, places the data on his computer, trims down the film to a 30 second clip, and puts the writing and clip on the internet. It may seem that the fair use defense protects his action, but in fact, he becomes liable for ripping the data from the CD.[9] To ease application of fair use, the Court usually uses the fair use test (built on a framework of four determinants) to evaluate copyright cases.
The fair use defense is now codified in Section 107 of the Copyright Act. The statute provides that fair use of a work “for purposes such as criticism, comment, news reporting, teaching is not an infringement of copyright”. To determine whether a given use is fair use, one must consider the following four factors:
These factors are the primary, and in many cases, the only factors courts examine. One must consider the following aspects while using these four factors.
Determination of fair use in the case of multimedia content is different from that of textual materials.[18] For eg: an image may be subject to two different copyrights, one for the underlying work of art and the other for the photograph. Institutions tend to use the whole image but typically render it in a lower resolution; this cannot harm the existing market for the image, which copyright holders sell or license only in high resolution, and thus, it is fair use.[19] If the item passes the four-factor test, the user must be able to avail permission to use the material.
To ensure fair use, the copyright holder must consent to the use of his work. If the copyright holder does not agree that the use qualifies as “fair”, legal action can be brought against the user.[20] The fair use test needs a valuation of all its determinant factors. The courts have repeatedly stated that although these factors are guidelines, each case needs distinctive analysis.[21] For reaching a fair use determination, one must explore all the factors, and weigh all the results together, in order to best achieve the goal of copyright law to “promote the progress of science and useful arts” (U.S. Const., art. I, § 8, cl. 8).[22]
1 https://ogc.harvard.edu/files/ogc/files/ogc_copyright_and_fair_use_guide_5-31-16.pdf
2 17 U.S. Code § 102 • Subject matter of copyright: In general
6 17 U.S. Code § 302 · Duration of copyright: Works created on or after January 1, 1978 (a)
11 https://copyrightalliance.org/ca_faq_post/what-is-fair-use/