Copyright infringement
Encyclopedia
Copyright infringement is the unauthorized or prohibited use of works under copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, infringing the copyright holder's exclusive right
Exclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...
s, such as the right to reproduce or perform the copyrighted work, or to make derivative work
Derivative work
In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...
s.
"Piracy"
The practice of labelling the infringement of exclusive rights in creative works as "piracy" predates statutory copyright law. Prior to the Statute of AnneStatute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
1709, the Stationers' Company of London in 1557 received a Royal Charter
Royal Charter
A royal charter is a formal document issued by a monarch as letters patent, granting a right or power to an individual or a body corporate. They were, and are still, used to establish significant organizations such as cities or universities. Charters should be distinguished from warrants and...
giving the company a monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
on publication and tasking it with enforcing the charter. Those who violated the charter were labelled pirates as early as 1603. After the establishment of copyright law with the 1709 Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
in Britain, the term "piracy" has been used to refer to the unauthorized manufacturing and selling of works in copyright. Article 12 of the 1886 Berne Convention for the Protection of Literary and Artistic Works
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
uses the term "piracy" in relation to copyright infringement, stating "Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection." Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
(TRIPs) requires criminal procedures and penalties in cases of "wilful trademark counterfeiting or copyright piracy on a commercial scale". Piracy traditionally refers to acts intentionally committed for financial gain, though more recently, copyright holders have described online copyright infringement, particularly in relation to peer-to-peer file sharing
Peer-to-peer file sharing
P2P or Peer-to-peer file sharing allows users to download files such as music, movies, and games using a P2P software client that searches for other connected computers. The "peers" are computer systems connected to each other through internet. Thus, the only requirements for a computer to join...
networks, as "piracy."
"Theft"
Copyright holders frequently refer to copyright infringement as "theft". In copyright law, infringement does not refer to actual theftTheft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization. Courts have distinguished between copyright infringement and theft, holding, for instance, in the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
case Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property and that "...interference with copyright does not easily equate with theft, conversion
Conversion (law)
Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another. It is a tort of strict liability...
, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright... 'an infringer of the copyright.'" In the case of copyright infringement the province guaranteed to the copyright holder by copyright law is invaded, i.e. exclusive rights, but no control, physical or otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of using the copyrighted work or exercising the exclusive rights held.
Enforcement responsibility
The enforcement of copyright is the responsibility of the copyright holder. Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property RightsAgreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
(TRIPs) requires that signatory countries enable courts to remedy copyright infringement with injunctions and the destruction of infringing products, and award damages. Copyright holders have started to demand through the ACTA trade agreement
Anti-Counterfeiting Trade Agreement
The Anti-Counterfeiting Trade Agreement is a proposed plurilateral agreement for the purpose of establishing international standards on intellectual property rights enforcement...
that states act to defend copyright holders' rights and enforce copyright law through active policing of copyright infringement. It has also been demanded that states provide criminal sanctions for all types of copyright infringement and pursue copyright infringement through administrative procedures, rather than the judicial due process required by TRIPs.
Criminal liability
Article 61 of the Agreement on Trade-Related Aspects of Intellectual Property RightsAgreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
(TRIPs) requires that signatory countries establish criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale". Copyright holders have demanded that states provide criminal sanctions for all types of copyright infringement.
Online intermediary liability
Whether or not internet intermediaries have liability for copyright infringement by users, and without the intermediaries' authorisation, has been subject to debate and court cases in a number of countries. Liability of online intermediaries has been one of the earliest legal issues surrounding the internet. Early court cases focused on the liability of internet service providers (ISPs) for hosting, transmitting or publishing content that could be actioned under civil or criminal law, such as libel, defamation, or pornographyPornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
. As different content was considered in different legal systems and in the absence of common definitions for "ISPs", "bulletin boards" or "online publishers", early law on online intermediaries' liability is widely different from country to country. The first laws on online intermediaries' liability were passed from the mid 1990s onwards and the debate has shifted away from questions about whether internet intermediaries are liable for different content, such as libellous content or copyright infringing content, towards a debate on whether online intermediaries should generally be made responsible for content accessible through their services or infrastructure.
Moderation system
On Internet websites which invite users to post comments, a moderation system is the method the webmaster chooses to sort contributions which are irrelevant, obscene, illegal, or insulting with regards to useful or informative contributions....
, aggregators, universities, libraries and archives, web search engines, chat rooms, web blogs, mailing lists, and any website which provides access to third party content through, for example, hyperlinks. Questions of liability have emerged in relation to internet communications infrastructure intermediaries other than ISPs, including internet backbone providers, cable companies and mobile communications providers.
The US Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
(1998) and the European E-Commerce Directive (2000) provide online intermediaries with safe harbor
Safe harbor
The term safe harbor has several special usages, in an analogy with its literal meaning, that of a harbor or haven which provides safety from weather or attack.-Legal definition:...
provisions, known as mere conduit principle in the Directive. Online intermediaries who host content that infringes copyright are not liable, so long as they do not know about it and take actions once the infringing content is brought to their attention. However, questions have arisen in relation to online intermediaries that are not hosts, particularly in the context of copyright infringement through peer-to-peer file sharing
Peer-to-peer file sharing
P2P or Peer-to-peer file sharing allows users to download files such as music, movies, and games using a P2P software client that searches for other connected computers. The "peers" are computer systems connected to each other through internet. Thus, the only requirements for a computer to join...
networks. Such intermediaries may be regarded as enabling or assisting in the downloading and uploading of files by users, and may include the writer of a peer-to-peer
Peer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
software, the websites that allow users to download peer-to-peer software, and in the case of the BitTorrent protocol the torrent site website and the torrent tracker. These intermediaries do not host or transmit the files that infringe copyright, though they may be considered to be "pointing to" the files. Since the late 1990s copyright holders have taken legal actions against a number of peer-to-peer intermediaries, such as Napster
Napster
Napster is an online music store and a Best Buy company. It was originally founded as a pioneering peer-to-peer file sharing Internet service that emphasized sharing audio files that were typically digitally encoded music as MP3 format files...
, Grokster
Grokster
Grokster Ltd. was a privately owned software company based in Nevis, West Indies that created the Grokster peer-to-peer file-sharing client in 2001 that utilized the FastTrack protocol. Grokster Ltd. was rendered extinct in late 2005 by the United States Supreme Court's decision in MGM Studios,...
, eMule
EMule
eMule is a free peer-to-peer file sharing application for Microsoft Windows. Started in May 2002 as an alternative to eDonkey2000, eMule now connects to both the eDonkey network and the Kad network...
, SoulSeek
Soulseek
Soulseek is a peer-to-peer file-sharing network and application. The term Soulseek might refer to one of the two networks, or one of the three official user client interfaces. Soulseek is used mostly to exchange music, although users are able to share a variety of files...
and BitTorrent, and case law on the liability of internet service providers (ISPs) in relation to copyright infringement has emerged primarily in relation to these cases.
The decentralised structure of peer-to-peer networks does not sit easily with existing laws on online intermediaries' liability. The BitTorrent protocol established an entirely decentralised network architecture in order to distribute large files effectively and recent developments in peer-to-peer
Peer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
technology towards more complex network configurations are said to have been driven by a desire to avoid liability as intermediaries under existing laws. While ISPs and other organisations acting as online intermediaries, such as libraries, have been given protection under existing safe harbor provisions in relation to copyright infringement, peer-to-peer file sharing
Peer-to-peer file sharing
P2P or Peer-to-peer file sharing allows users to download files such as music, movies, and games using a P2P software client that searches for other connected computers. The "peers" are computer systems connected to each other through internet. Thus, the only requirements for a computer to join...
intermediaries have been denied access to the safe harbor provisions in relation to copyright infringement. Legal action in relation to copyright infringement against peer-to-peer intermediaries, such as Napster
Napster
Napster is an online music store and a Best Buy company. It was originally founded as a pioneering peer-to-peer file sharing Internet service that emphasized sharing audio files that were typically digitally encoded music as MP3 format files...
, are generally brought in relation to principles of secondary liability
Secondary liability
Secondary liability, or indirect infringement, arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for directly infringing acts carried out by another party. The US has statutorily codified secondary liability rules for trademarks and patents; however,...
for copyright infringement, such as contributory liability and vicarious liability
Vicarious liability
Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondeat superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the "right, ability...
.
Countries where sharing files without profit is legal
Downloading copied music is legal in some countries, such as CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, The Netherlands, Spain, and Panama, provided that the songs are not sold.
Russian law
Downloading music and films for home use is legal due to exception provided by section 1273 of Russian Federation Civil Code. A special 1% compensatory levy intended for copyright holders is collected from the price of certain goods (like computers or clean CD-RW disks). The compensation mechanism is unclear, though, and left entirely in the hands of the collecting agency established at the same time, with Nikita Mikhalkov, a prominent film director and political figure, at its helm.See also
For a substantial discussion of copyright infringement in the domain of computer programs, see copyright infringement of softwareCopyright infringement of software
Copyright infringement of software=The copyright infringement of software refers to several practices which involve the unauthorized copying of computer software. Copyright infringement of this kind varies globally...
.
- Anti-Counterfeiting Trade AgreementAnti-Counterfeiting Trade AgreementThe Anti-Counterfeiting Trade Agreement is a proposed plurilateral agreement for the purpose of establishing international standards on intellectual property rights enforcement...
(ACTA) - Anti-piracyAnti-piracyAnti-piracy is a term used to describe countermeasures against maritime piracy but moreoften by some to describe the attempt to prevent copyright infringement, counterfeiting, and other violations of intellectual-property rights....
- Bootleg recordingBootleg recordingA bootleg recording is an audio or video recording of a performance that was not officially released by the artist or under other legal authority. The process of making and distributing such recordings is known as bootlegging...
- Chan Nai-mingChan Nai-mingChan Nai-Ming is a Hong Kong citizen, believed to be the first person in the world convicted of the crime of illegal mass distribution of copyrighted works using BitTorrent Peer-to-peer file sharing...
- CopyfraudCopyfraudCopyfraud is a term used by Jason Mazzone, an Associate Professor of Law at Brooklyn Law School, to describe the use of false claims of copyright to attempt to control works not under one's legal control.-Introduction:Mazzone describes copyfraud as:...
- Copyright, Designs and Patents Act 1988Copyright, Designs and Patents Act 1988The Copyright, Designs and Patents Act 1988 , also known as the CDPA, is an Act of the Parliament of the United Kingdom which received Royal Assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law in the United Kingdom, which had, until then, been...
- Copyrighted content on file sharing networks
- CounterfeitCounterfeitTo counterfeit means to illegally imitate something. Counterfeit products are often produced with the intent to take advantage of the superior value of the imitated product...
- Don't Copy That FloppyDon't Copy That FloppyDon’t Copy That Floppy was an anti-copyright infringement campaign run by the Software Publishers Association beginning in 1992. The video for the campaign, starring M. E. Hart as “MC Double Def DP,” was filmed at Cardozo High School in Washington, D.C...
- Fair UseFair useFair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
- Federation Against Copyright TheftFederation Against Copyright TheftThe Federation Against Copyright Theft is a trade organisation in the UK established to represent the interests of the its members in the film and broadcasting business on copyright and trademark issues. Established in 1983, FACT works with law enforcement agencies on copyright-infringement issues...
(FACT) - Home Taping is Killing MusicHome Taping is Killing Music"Home Taping Is Killing Music" was the slogan of a 1980s anti-copyright infringement campaign by the British Phonographic Industry , a British music industry trade group. With the rise in cassette recorder popularity, the BPI feared that people being able to record music from the radio onto...
- IFPI (International Federation of Phonogram and Videogram Producers)
- Impact of illegal downloading on the film industryImpact of illegal downloading on the film industryThe advent of advanced technology that allows broadband Internet access on personal computers has made the illegal downloading of films increasingly common....
- Intellectual property infringement in the People's Republic of China
- Internet Privacy ActInternet Privacy ActThe Internet Privacy Act is a non-existent and fictitious law cited by websites that conduct illegal activities in order to deter organizations that look to prosecute such activities. Networks which share music, films and software, for example, often display the fictitious act in an attempt to...
- Online Copyright Infringement Liability Limitation ActOnline Copyright Infringement Liability Limitation ActThe Online Copyright Infringement Liability Limitation Act is United States federal law that creates a conditional safe harbor for online service providers and other Internet intermediaries by shielding them for their own acts of direct copyright infringement as well as...
in the United States - PlagiarismPlagiarismPlagiarism is defined in dictionaries as the "wrongful appropriation," "close imitation," or "purloining and publication" of another author's "language, thoughts, ideas, or expressions," and the representation of them as one's own original work, but the notion remains problematic with nebulous...
- R2C2R2C2R2C2, Inc., owned by Rusty Carroll, is a company located in Carbondale, Illinois, that operates a group of at least nine sites that sold term papers. According to his attorney, they collectively offered a total of 200,000 to 300,000 papers...
- Radio music rippingRadio music rippingThe term ripping can also apply to radio. New software, techniques and cloud services now makes it possible to extract the songs played on the radio and digitally save them on separate audio tracks...
- Substantial similaritySubstantial similaritySubstantial similarity is the standard developed and used by United States courts to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if infringement...
- WarezWarezWarez refers primarily to copyrighted works distributed without fees or royalties, and may be traded, in general violation of copyright law. The term generally refers to unauthorized releases by organized groups, as opposed to file sharing between friends or large groups of people with similar...
- World Anti-Piracy ObservatoryWorld Anti-Piracy ObservatoryThe World Anti-Piracy Observatory is a United Nations Educational, Scientific and Cultural Organization program engineered to help combat piracy. The program, approved in 2005 and initiated in January 2010, is the first web-based platform to gather and disseminate information about anti-piracy...
(WAPO) - You can click, but you can't hideYou can click, but you can't hideYou can click, but you can't hide is a publicity campaign run jointly by several international associations, most notably the MPA, the MPAA, and the GVU, as part of the larger "Respect Copyrights" campaign against peer-to-peer file sharing of motion pictures...
- Center for Copyright InformationCenter for Copyright InformationThe Center for Copyright Information is an American organization created by large media corporations which aims to curtail online copyright infringement by informing the public about online copyright law. The Center is responsible for creating the Copyright Alert System which uses Internet...
Further reading
- Johns, Adrian: Piracy. The Intellectual Property Wars from Gutenberg to Gates. The University of Chicago Press, 2009, ISBN 978-0-226-40118-8
External links
- A 2000 Salon.com article by Courtney Love addressing copyright infringement of music
- A 2001 reprint of two speeches given by Thomas Macaulay in Parliament in 1841, when the issue of copyright was being hammered out.
- A 2003 article on CD Piracy in China from the music webzine www.CLUAS.com
- A 2008 article illustrating the effect of piracy on video games
- An article for students explaining the difference between plagiarism and copyright infringement
- How Corporate Law Inhibits Social Responsibility
- Movie and Record Industry Piracy Figures Incendiary, But Not Fact. – June 2006 MP3 NewswireMP3 NewswireFounded in 1998, the same year as MP3.com, MP3 Newswire is the oldest active news site devoted to digital media technology. Notable for its series of essays that chronicled the rise of digital music and the Internet’s acrimonious relationship with the record industry, MP3 Newswire initially was...
article challenges inflated copyright infringement claims by media companies - US Copyright Office