Intro to Federal Statutes for Copyright

Federal statutes

The Copyright Act of 1976

The foundation for any research in copyright law is the Copyright Act of 1976, which is currently binding. Along with the main body of the statute, two important named parts of the code are the Visual Artists Rights Act (VARA) which was added in 1990 and the Digital Millennium Copyright Act (DMCA) which was passed in 1998. These two acts are often referred to by their abbreviations.

The best place to start when reviewing the Copyright Act is to consult the definitions in Section 101 since this statute uses many terms of art. Section 106 details the exclusive rights of the author[1] and the researcher may find helpful information about the construction of these rights using the Notes of Decisions on Westlaw. A major defense to the use of copyrighted material belonging to someone else is fair use. The Section 107 fair use factors which are weighed by courts are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.[2]

The exclusive rights of authors are not without limitations, including Section 108 which created a limited exception to the reproduction and distribution rights in favor of libraries and archives.[3] As so many of the offerings at libraries become increasingly digital, this part of the Copyright Act may be under further examination and possible revision. Another limitation lies in Section 111 which covers secondary transmissions. When researching the implications of copyright law and online streaming services such as Netflix, the researcher should look for connections to this part of the Copyright Act.

17 U.S.C. § 114 limits reproduction, adaptation, and performance rights in sound recordings

Statutory copyright licenses and the lack thereof cannot be ignored in this area of study. The following licenses from the Copyright Act of 1976 are applicable to digital works and digital copyright infringement:

• The Cable Television License §111: for secondary transmissions by cable transmission systems

• The Ephemeral Recording License §112(e): for ephemeral recordings used to facilitate the digital transmissions permitted under §114

• The Digital Performance Right in Sound Recordings License §114: for certain non-interactive digital audio transmission services

• The Mechanical License §115: for the reproduction and distribution of phonorecords of nondramatic musical works, including “digital phonorecord delivery” of such musical works

• The Public Broadcasting License §118: for the use of certain copyrighted works by noncommercial broadcasting entities

• The General Satellite Retransmission License §122: for satellite retransmission to the public for private viewing

• The Local-to-Local Satellite Retransmission License §122: for satellite retransmissions of local television stations’ broadcasts into their local markets

The Digital Millennium Copyright Act (DMCA)[4]

The DMCA does not create a new cause of action for copyright infringement but rather addressed concerns about controlling copyright as technology advanced quickly in the 1990s and beyond.[5] Within the legal scholarship, the three main parts of the DMCA are known as the safe harbor provision (Section 512), the anti-circumvention provision (Section 1201), and the copyright management information provision (Section 1202).

Section 512 of the DMCA protects Internet service providers from liability for copyright infringement committed using their transitory digital network communications services. To qualify for the “safe harbor,” the service provider must not encourage the infringement and must establish mechanisms and processes by which a copyright owner may request that the infringing material be removed.[6]

To establish liability under the DMCA, a plaintiff must establish that the defendant trafficked in a technology that was primarily designed or produced to circumvent conditional access controls to protected works or has limited commercially significant use other than such circumvention.[7] Section 1201 is subject to a rulemaking proceeding every three years, with the next rulemaking taking place in 2024. In these proceedings, the Copyright Office assesses the current exemptions to the anti-circumvention provisions and considers petitions for new exemptions. To learn more about the rulemaking process and the register’s recommendations from past rulemakings, visit the Copyright Office’s website.[8]

Lastly, Section 1202 of the DMCA makes it unlawful to fabricate copyright management information with the intent to induce or conceal infringement.[9] Copyright management information includes the title, name of the author and copyright owner, and terms for use of the work when conveyed in connection with copies of a copyrighted work. This is analogous to “passing-off” in trademark law.

The Visual Artists Rights Act (VARA)[10]

The Visual Artists Rights Act provides protection for a selected subsection of copyrighted works, namely “works of visual art” as defined in Section 101 of the Copyright Act. See Glossary for the definition of this term. This act is incorporated in Section 106A of the Copyright Act and is freely available online.

Code of Federal Regulations: Title 37 on Patents, Trademarks, and Copyrights[11]

All procedures of the Copyright Office and the Copyright Claims Board, including copyright registration, copyright recordation, copyright claims proceedings, compulsory licenses, and much more are codified in the Code of Federal Regulations. The researcher may benefit from perusing various sections of this title in order to better understand the workings of the Copyright Office.

[1] 17 U.S.C. § 106. [2] 17 U.S.C. § 107. [3] 17 U.S.C. § 108. [4] https://www.copyright.gov/dmca/ [5] See Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1193 (Fed. Cir. 2004). [6] See15B Am Jur 2d Computers and the Internet § 206. [7] 17 U.S.C. § 1201; see 10 Nimmer on Copyright Section 103. [8] https://www.copyright.gov/1201/ [9] https://www.copyright.gov/dmca/ [10] https://www.law.cornell.edu/uscode/text/17/106A [11] https://www.copyright.gov/title37/