Laws and Statutes
Introduction
A handful of federal, state, and international laws govern copyright practice.
(Please see GrayZone's FAQ for details). In general, they are designed to protect the
rights of artists while preserving the public's right to benefit from the
works of those same artists. The various laws provide for civil and criminal
penalties for those found guilty of violations.
Digital Millennium Copyright Act (DMCA)
This landmark legislation has its origins in the 1996 World Intellectual
Property Organization's Diplomatic conference in Geneva, attended by more than
160 nations. There, two new treaties were negotiated that represent the most
important overhaul of international copyright law in the last quarter century.
The treaties raise the minimum standards for copyright protection worldwide
and make it easier to fight piracy of American products overseas.
Although U.S. copyright law already met the treaties' standards, legislation
was needed to meet the treaties' prohibition of devices used to undermine
electronic "locks." The Digital Millennium Copyright Act (DMCA) does just that,
among other things, by prohibiting the manufacture and
distribution of devices designed for the sole purpose of undermining
technology used to protect copyrighted works.
The DMCA law also delineates the responsibilities of Internet service
providers (ISPs) in cases of infringement online. For example, the law
formalizes a notice and takedown procedure between ISPs and copyright owners.
It is now clear that when an ISP is aware it is posting or transmitting
infringing content, the ISP must act to remove the infringing works or it may
be liable for any resulting damages.
The DMCA also contains the key agreement reached between the Recording
Industry Association of America (RIAA) and a coalition of webcasters and
satellite audio delivery services. This section provides for a simplified
licensing system for digital performances of sound recordings, such as those
on the Internet and through satellite delivery. This part of the DMCA
provides a statutory license for non-interactive non-subscription digital
audio services with the primary purpose of entertainment, if terms of the
license are met. Such a statutory licensing scheme guarantees webcasters and
satellite services access to music without obtaining permission from each and
every sound recording copyright owner individually and assures record
companies an efficient means to receive compensation for sound recordings.
The greatest gains from the DMCA will be realized internationally. This law is
a model for ratification and implementation of the WIPO treaties in other
countries, where protection of sound recordings online is not sufficient.
Formal U.S. ratification of the treaty package moves the worldwide
ratification effort closer to the 30 countries that must ratify the treaties
for them to take legal effect.
To view the U.S. Copyright Summary of the DCMA:
http://lcweb.loc.gov/copyright/legislation/dmca.pdf
The 1998 enactment of the Digital Millennium Copyright Act (DMCA) represents
the most comprehensive reform of United States copyright law in a generation.
The DMCA seeks to update U.S. copyright law for the digital age in preparation
for ratification of the World Intellectual Property Organization (WIPO)
treaties. The treaties came into force May 20, 2002.
Read about the treaties at our website: http://www.grayzone.com/ifpi22102.htm
Key among the topics included in the DMCA are provisions concerning the
circumvention of copyright protection systems, fair use in a digital
environment, and online service provider (OSP) liability (including details on
safe harbors, damages, and "notice and takedown" practices).
Peruse commentary about the DMCA at the United States Copyright Office:
http://www.loc.gov/copyright/
Download the DMCA at the U.S. Copyright Office (requires Adobe Acrobat Reader):
http://www.loc.gov/copyright/legislation/hr2281.pdf
Also, there is an excellent legal "status and analysis" of the DMCA by the
Association of Research Libraries. This website includes a listing of articles
and links on topics, chronology and legislation of the act:
http://www.arl.org/info/frn/copy/dmca.html
The Legal Dispute About Napster
We are frequently asked what we think about the disputes surrounding Napster.
It is much more complicated from a legal perspective than you might think! It
isn't just about downloading "free" music.
William J. Morris III Esq. and Stephanie J. Mapes, Esq. provide an excellent
discussion of how Napster works and a legal analysis of the case opinion:
http://www.pfclaw.com/downloads/napster-wm.html
The Audio Home Recording Act of 1992 (AHRA)
This 1992 legislation exempts consumers from lawsuits for copyright violations
when they record music for private, noncommercial use; eases access to
advanced digital audio recording technologies; provides for the payment of
modest royalties to songwriters and recording artists and companies; and
mandates the inclusion of serial copying management technology in all consumer
digital audio recorders to limit multi-generation audio copying (i.e., making
copies of copies).
In general, the AHRA covers devices that are designed or marketed for the
primary purpose of making digital musical recordings. Digital audio cassette
players, minidisc players, and DAT players are devices covered by the AHRA.
This law will also apply to all future digital audio recording technologies,
so Congress will not be forced to revisit the issue as each new product
becomes available.
The AHRA provides that manufacturers (not consumers) of covered devices must:
(1) register with the Copyright Office; (2) pay a statutory royalty on each
device and piece of media sold; and (3) implement serial copyright management
technology (such as SCMS) which prevents the production of copies of copies.
In exchange for this, the manufacturers of the devices receive statutory
immunity from infringement based on the use of those devices by consumers.
Multipurpose devices, such as a general computer or a CD-ROM drive, are not
covered by the AHRA. This means that they are not required to pay royalties or
incorporate SCMS protections. It also means, however, that neither
manufacturers of the devices, nor the consumers who use them, receive immunity
from suit for copyright infringement.
For additional information go to:
http://www.virtualrecordings.com/ahra.htm
The Digital Performance Right in Sound Recordings Act of 1995 (DPRA)
For nearly 30 years, the Recording Industry Association of America (RIAA) has
been fighting to give copyright owners of sound recordings the right to
authorize public performances of their work. Before the passage of the
Digital Performance Right in Sound Recordings Act of 1995, sound recordings
were the only U.S. copyrighted work denied the right of public performance.
All that has now changed.
This law allows copyright owners of sound recordings the right to authorize
certain digital transmissions of their works, including interactive digital
audio transmissions, and to be compensated for others. As amended by the
Digital Millennium Copyright Act in 1998, the right now covers cable and
satellite digital audio services, webcasters, and future forms of digital
transmission. Most non-interactive transmissions are subject to statutory
licensing at rates to be negotiated or, if necessary, arbitrated. Exempt from
this bill are traditional radio and television broadcasts and transmissions to
business establishments.
No Electronic Theft Law (NET Act)
The No Electronic Theft law (the NET Act) sets forth that sound recording
infringements (including by digital means) can be criminally prosecuted even
where no monetary profit or commercial gain is derived from the infringing
activity. Punishment in such instances includes up to 3 years in prison and/or
$250,000 fines. The NET Act also extends the criminal statute of limitations
for copyright infringement from 3 to 5 years.
Additionally, the NET Act amended the definition of "commercial advantage or
private financial gain" to include the receipt (or expectation of receipt) of
anything of value, including receipt of other copyrighted works (as in MP3
trading). Punishment in such instances includes up to 5 years in prison
and/or $250,000 fines. Individuals may also be civilly liable, regardless of
whether the activity is for profit, for actual damages or lost profits, or for
statutory damages up to $150,000 per work infringed.
For additional information visit:
http://www.virtualrecordings.com/net.htm
The Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works is the
keystone for all international copyright agreements. The World Intellectual
Property Organization (WIPO) administers the Berne Convention. Today,
although there is no such thing as an "international copyright" per se, most
countries have agreed to basic copyright protection terms.
The Berne Convention was signed by a handful of European countries in
1886--but not the United States. It took more than a century for the U.S. to
get on board; finally, in 1989, the U.S. agreed to comply with the tenets of
the Berne Convention. The Berne Convention has been revised numerous times
over the decades, and most treaties and conventions have been in response to
it. The Berne Convention establishes rules for the protection of works,
including the right for the copyright owner to authorize reproduction,
translation, public performance, communication, and adaptation of their work.
Unfortunately, although the United States protects sound recordings under the
Berne Convention, most countries do not, and the Berne Convention is thus not
a central part of the international legal infrastructure with respect to such
works.
Trade Related Aspects of Intellectual Property Rights (The TRIPS Agreement)
Until the TRIPS Agreement was reached in 1994 in the GATT (now called the WTO
- World Trade Organization), international legal protection was governed by
two relatively inadequate treaties - the Rome Convention (1961) and the Geneva
Phonograms Convention (1971). These Treaties required their adherents to
provide protection against literal copying, but achieved little else.
TRIPS resolved many of the limitations of the international regime in place
under the Rome and Geneva Phonograms Conventions - in particular by extending
the reach of international discipline to all WTO members (over 100) instead of
the 30-40 members of each of the Conventions, by increasing the term of
protection for sound recordings from 20 to 50 years, by granting record
companies the ability to prohibit rental of their recordings, and by requiring
WTO members to protect all recordings released within the past fifty years.
TRIPS also extends copyright protection to computer programs, compilations of
data, cinematographic works, and sound recordings. Under TRIPS, performers
have the right to prevent fixation (i.e. to capture in some tangible form such
as film or a sound recording) of their unfixed performances, the reproduction
of that fixation, and the wireless broadcasting of their live performances
when done without their authorization. Broadcasting organizations have the
right to prohibit the fixation, reproduction, or broadcasting by wireless
means any of their broadcasts.
TRIPS also establishes that countries can bring an action against other
countries for infringement of these rights through the World Trade
Organization. While the WTO can't change a country's laws, it can impose
tariffs as penalties if a country is found to be in violation of TRIPS.
World Intellectual Property Organization Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT)
The WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty
(WPPT) were held in 1996 to address digital issues and are meant to further
clarify Berne and TRIPS. The WCT does a few important things.
First, it grants copyright owners the exclusive right of distribution of their
work, by sale or other means of transfer of ownership, though only for
physical copies.
Second, it provides that communication of works to individual members of the
public by on-demand services, such as with the Internet, still be considered
to be a public performance. Finally, it creates obligations concerning
technological measures (safeguarding copyright protection within the music,
software, and/or hardware) and rights management information, as detailed
below.
The WPPT dealt with some of the issues covered in the WCT, and introduced some
new articles.
First, it clarifies that the need for authorization from a performer or
producer of a work does not cease to exist just because authorization would
also be needed from the owner of the musical work. This is important because
record companies would have been dependent on authors' collecting societies to
exercise their rights. Second, it expands the definition of "phonogram" and
"phonogram producer" to be more broad and therefore advantageous for record
companies.
It also grants that producers of phonograms would have the exclusive right of
direct or indirect reproduction of their works, in any form (Rome established
a much more limited right of reproduction). It gives producers and performers
the exclusive right to authorize on-demand transmissions, providing an
excellent platform for international e-commerce. It gives producers and
performers the right to remuneration for broadcasting or any communication to
the public of their work (though there is still work to do on this and a
resolution of the level of rights is forthcoming).
Significantly, the WPPT rejects the Rome Convention's allowance to limit the
rights of phonogram producers with respect to personal use of the work. More
in line with Berne, limitations must not conflict with a normal exploitation
of the work, and not unreasonably compromise the legitimate interests of the
phonogram producer.
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