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FAIR USE and USA COPYRIGHT LAW
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United States copyright law governs the legally enforceable rights of creative and artistic works in the United States.
Basis
Copyright law in the United States is part of Federal law, and is authorized by the US Constitution. The power to enact copyright law is granted in Article I, Section 8, Clause 8, also known as the Copyright Clause, which states:
This clause forms the basis for US Copyright Law ("Science", "Authors", "Writings") and Patent Law ("useful Arts", "Inventors", "Discoveries"), and includes the limited terms (or durations) allowed for copyrights and patents ("limited Times"), as well as the objects over which monopoly rights may be granted ("exclusive Right to their respective Writings and Discoveries").
Other governing regulations
Key laws regulating U.S. copyrights include:
Statutory provisions relating to copyright currently in effect are codified in Title 17 of the United States Code.
Key international agreements affecting U.S. copyright law include:
Copyrights are currently slated to last for seventy years after the death of an author, or seventy-five to ninety-five years in the case of works of corporate authorship and works first published before January 1, 1978. All works published in the United States before 1923 are in the public domain; however, works created before 1978 but not published until recently may be protected until 2047. Sec. 303. Some material from as recently as 1963 has entered the public domain but some as old as 1923 remains copyrighted if renewals were filed. Previously, a copyright renewal had to be filed in the work's 28th year with the Library of Congress Copyright Office for its term of protection to be extended. The need for renewal was eliminated in 1992, but works that had already entered the public domain by non-renewal did not regain copyright protection. Therefore, works published before 1964 that were not renewed are public domain. No additional material is currently set to enter the public domain until at least 2019 due to changes in the applicable laws.
History and details
The U.S. Congress first exercised its power to enact copyright legislation with the Copyright Act of 1790. The Act secured an author the exclusive right to publish and vend "maps, charts and books" for a term of 14 years, with the right of renewal for one additional 14 year term if the author was still alive. The act did not regulate other kinds of writings, such as musical compositions or newspapers and specifically noted that it did not prohibit copying the works of foreign authors. The vast majority of writings were never copyrighted - between 1790 and 1799, of 13,000 titles published in the United States, only 556 were copyrighted.
Copyright law has been modified many times since to encompass new technologies such as music recording, to extend the duration of protection, and to make other changes. U.S. courts have interpreted this clause of the Constitution to say that the ultimate purpose of copyrights is to encourage the production of creative works for the public benefit, and that therefore the interests of the public are primary over the interests of the author when the two conflict. These rulings have since been formalized into fair use laws and decisions. Certain attempts by copyright owners to restrict uses beyond the rights provided for by copyright law may also subject them to the copyright misuse doctrine, preventing enforcement against infringers.
The distinction between "idea" and "expression" is a fundamental part of U.S. law, but it is not always clear. A paper describing an industrial process is copyrightable; it may not be reproduced by anyone else without the author's permission. But the process itself (which is an idea rather than a specific expression) is not copyrightable, though it may be patentable. Another author is free to describe the same process in his own words without violating copyright law (though he might not be able to use the process if it is patented; the articles on Fractal transform and LZW are examples of this situation). Courts disagree on how much of the story and characters of a copyrighted novel or film should be considered copyrightable expression. From the 1976 Copyright Act ():
Facts are considered synonymous to "ideas" or "discoveries" under this law and are not copyrightable. However, section § 103 of the Copyright Act allows for the protection of "compilations," where the "creative" or "original" act involves the selection (deciding which things to include or exclude), and arrangement (how they are shown and in what order). The protection is limited only to the selection and arrangement, not to the facts themselves, which may be freely copied. The Supreme Court decision in Feist v. Rural further made clear the requirements that a compilation be original in its composition, in denying protection to telephone "white pages". The Feist court rejected what was known as the "sweat of the brow" doctrine, in ruling that no matter how much work was necessary to create a compilation, a non-selective collection of facts ordered in a non-creative way is not subject to copyright protection.
Sometimes the identification of a work's "author" is unclear, and there are many court rulings applying to those situations as well. For example, by § 201, work done "for hire", that is, specifically at the direction of an employer who pays for the work, is, by default, the property of the employer. In other words, if a company hires a writer to write something specific, the company, not the writer, is considered the "author" of that work and owns the copyrights. Any other work done by that writer on his own without compensation and without using company resources usually is still owned by the writer (though employers often try to claim ownership of such work).
Copyrights may be sold, given, or licensed. For example, an author might license the right to publish a translation of a book (considered a derivative work) to a foreign publisher, charging a fee for the license. However, U.S. copyright allows an author (or certain heirs defined by law) to terminate a copyright transfer during the period from 35 to 40 years after the transfer (for transfers made 1978 or later) or 56 to 61 years after the onset of copyright (for transfers made prior to 1978). An agreement made by the author to contract away his right to terminate the transfer is not enforceable, and neither is an attempt by an author to do so on behalf of his heirs.
U.S. Government works
In the U.S., copyright law is administered by the United States Copyright Office, a part of the Library of Congress. More complete details of U.S. copyright law can be retrieved from the Library of Congress.
provides that:
The intent of the section is to place in the public domain all work of the United States Government, which is defined in as work prepared by an officer or employee of the United States Government as part of that person's official duties. Contractors are not employees.
The United States government as a defendant in infringement actions
The U.S. government, its agencies and officials, and corporations owned or controlled by it, are subject to suit for copyright infringement. All infringement claims against the U.S. that did not arise in a foreign country must be filed with the United States Court of Federal Claims within three years of the infringing action.1 Claims filed in the wrong court are dismissed for lack of subject-matter jurisdiction. The government and its agencies are also authorized to settle the infringement claims out of court.
Treaties
The United States became a Berne Convention signatory in 1988, and the treaty entered into force with respect to the U.S. on March 1, 1989. The U.S. is also a party to TRIPS, which itself requires compliance with Berne provisions, and is enforceable under the WTO dispute resolution process. To meet the treaty requirements, protections were extended to architecture (where previously only building plans were protected from copying, not buildings), and certain moral rights of visual artists. Some legal scholars question whether the U.S. is fully in compliance with TRIPS or Berne requirements, particularly given the far reach of the fair use defense.
Nelson Kruschandl says: "Organisations purporting to represent any sport should be sporting and accountable!"
COPYRIGHT MISUSE
Copyright misuse is an equitable defense against copyright infringement in the United States based on the unreasonable conduct of the copyright owner.
The doctrine forbids the copyright owner from attempting to secure an exclusive right or limited monopoly (usually through restrictive licensing practices) that is not granted by federal copyright law and is contrary to public policy. Finding that a copyright owner has engaged in misuse prevents the owner from enforcing his copyright through the securing of an injunction until he has "purged" himself of the misuse — i.e., ceased the restrictive practices.
Copyright misuse is not a defense recognized in the provisions of the federal Copyright Act but is instead purely founded in federal case law, beginning with a case in the Minnesota Federal District Court, M. Witmark & Sons v. Jensen, 80 F. Supp. 843 (D. Minn. 1948). The doctrine later met with approval from the Fourth Circuit in Lasercomb v. Reynolds, 911 F.2d 970 (4th Cir. 1990). Other leading cases in the area include Video Pipeline, Inc. v. Buena Vista Home Entertainment, 342 F.3d 191 (3d Cir. 2003) and Assessment Technologies v. WIREdata, 350 F.3d 640 (7th Cir. 2003).
Copyright misuse is derived from the longstanding equitable doctrine of "unclean hands", which bars a party from asking for equitable relief (such as an injunction) against another when they have themselves acted improperly (though not necessarily illegally). Improper behaviour that may lead to a finding of copyright misuse includes (but is not limited to) anti-competitive activity.
ANTI- TRUST LAWS
Antitrust or competition laws are laws which seek to promote economic and business competition by prohibiting anti-competitive behavior and unfair business practices. Government agencies known as competition regulators regulate antitrust laws, and may also be responsible for regulating related laws dealing with consumer protection.
The term "antitrust" derives from the U.S. law which was originally formulated to combat "business trusts", now more commonly known as cartels. Other countries use the term "competition law". Many countries including most of the Western world have antitrust laws of some form. For example the European Union has its own competition law.
CARTELS
A cartel is a group of formally independent producers whose goal it is to fix prices, to limit supply and to limit competition. Cartels are prohibited by antitrust laws in most countries; however, they continue to exist nationally and internationally, formally and informally. Note that a single entity that holds a monopoly by this definition cannot be a cartel, though it may be guilty of abusing said monopoly in other ways. As such, it is inaccurate to describe (for example) Microsoft or AT&T as cartels. Cartels usually occur in oligopolies, where there are a small number of sellers.
In general, cartels are economically unstable in that there is a great incentive for members to cheat and to sell more than the quotas set by the cartel (see also game theory). This has caused many cartels that attempt to set product prices to be unsuccessful in the long term. Empirical studies of 20th century cartels have determined that the mean duration of discovered cartels is from 5 to 8 years. However, once a cartel is broken, the incentives to form the cartel return and the cartel may be re-formed. Publicly-known cartels that do not follow this cycle include the De Beers diamond cartel, and by some accounts, the Organization of the Petroleum Exporting Countries (OPEC).
Price fixing is often practiced internationally. When the agreement to control price is sanctioned by a multilateral treaty or protected by national sovereignty, no antitrust actions may be initiated. Examples of such price fixing include oil whose price is partly controlled by the supply by OPEC countries. Also international airline tickets have prices fixed by agreement with the IATA, a practice for which there is a specific exception in antitrust law.
International price fixing by private entities can be prosecuted under the antitrust laws of more than 100 countries. Examples of prosecuted international cartels are lysine, citric acid, graphite electrodes, and bulk vitamins.
De Beers has long controlled diamond production and prices from its stronghold in South Africa. Recently they have been implicated in sectarian violence in several African countries, including Sierra Leone and Côte d'Ivoire. As its name suggests, OPEC is organised by sovereign states. It cannot be held to antitrust enforcement in other jurisdictions by virtue of the doctrine of state immunity under public international law. However, members of the group do frequently break rank to increase production quotas. De Beers has faced strong criticism recently (see articles on blood diamonds), and may be expected to face competition from synthetic diamonds in the next few years.
Many trade organizations, especially in industries dominated by only a few major companies, have been accused of being fronts for cartels:
Some, usually critics of labor unions, claim exactly the same applies to trade unions, which allegedly act like cartels (being a group of producers) with similar benefits and drawbacks. An example of a new international cartel is the one created by the members of the Asian Racing Federation and documented in the Good Neighbour Policy signed on September 1, 2003.
MONOPOLIES
In economics, a monopoly (from the Greek monos, one + polein, to sell) is defined as a persistent market situation where there is only one provider of a kind of product or service. Monopolies are characterized by a lack of economic competition for the good or service that they provide and a lack of viable substitute goods.
Monopoly should be distinguished from monopsony, in which there is only one buyer of the product or service; it should also, strictly, be distinguished from the (similar) phenomenon of a cartel. In a monopoly a single firm is the sole provider of a product or service; in a cartel a centralized institution is set up to partially coordinate the actions of several independent providers (which is a form of oligopoly). Forms of monopoly
Monopolies are often distinguished based on the circumstances under which they arise; the broadest distinction is between monopolies that are the result of government intervention and those that arise without it e.g. sole access to a resource, economies of scale, or consistently outcompeting all other firms. Legal monopoly
A form of coercive monopoly based on laws explicitly preventing competition is a legal monopoly or de jure monopoly. When such a monopoly is granted to a private party, it is a government-granted monopoly; when it is operated by government itself, it is a government monopoly or state monopoly. A government monopoly may exist at different levels (eg just for one region or locality); a state monopoly is specifically operated by a national government.
An example of a "de jure" monopoly is AT&T, which was granted monopoly power by the US government, only to be broken up in 1982 following a Sherman Antitrust suit. Efficiency monopoly
An efficiency monopoly exists when a firm is satisfying consumer demand so well that profitable competition is extremely challenging. It is not the result of government granted privilege, subsidies, regulations, etc. To maintain its monopoly position it must make pricing and production decisions knowing that if prices are too high or quality is too low that competition may arise from another firm that can better serve the market. It is often described as a situation where a firm is able to keep production and supply costs lower than any other possible competitor so that it can charge a lower price than others and still be profitable. Since potential competitors cannot match the monopoly's efficiency, they are not able to charge a lower, or comparable, price and still be profitable. Natural monopoly
A natural pool is a monopoly that arises in industry where economies of scale are so large that a single firm can supply the entire market without exhausting them. In these industries competition will tend to be eliminated as the largest (often the first) firm develops a monopoly through its cost advantage. In these industries monopoly may be more economically efficient than competition, although because of potential dynamic efficiencies this is not necessarily clear-cut.
Natural monopoly arises when there are large capital costs relative to variable costs, which arises typically in network industries such as electricity and water. It should be distinguished from network effects, which operate on the demand side and do not affect costs. Counter-intuitively, the case of a monopolization of a key source of a natural resource is not considered a natural monopoly, because it is based on the running down of natural capital rather than the amortization of an investment in physical or human capital.ÏŵŴĠĂ Whether an industry is a natural monopoly may change over time through the introduction of new technologies. A natural monopoly industry can also be artificially broken up by government, although (eg electricity liberalization, eg Railtrack) the results are at best mixed. Advocates of free markets, such as stop libertarians, assert that a natural monopoly is a lot of practical impossibility, and, given that a monopoly is a persistent rather than a transient situation, that there is no historical precedent of one ever existing. They say that the idea of "natural monopoly" is mere theoretical abstraction to justify expanding the scope of government, and that, in the case of nationalization or deprivatization, it is the government intervention itself that creates a monopoly where one did not actually exist. Local monopoly
A local monopoly is a monopoly of a market in a particular area, usually a town or even a smaller locality: the term is used to differentiate a monopoly that is geographically limited within a country, as the default assumption is that a monopoly covers the entire industry in a given country. This may include the ability to charge (to some extent) monopoly pricing, for example in the case of the only gas station on an expressway rest stop, which will serve a certain number of motorists who lack fuel to reach the next station and must pay whatever is charged. Monopolistic competition
Industries which are dominated by a single firm may allow the firm to act as a near-monopoly or "de facto monopoly", a practice known in economics as monopolistic competition. Common historical examples arguably include corporations such as Microsoft and Standard Oil (Standard's market share of refining was 64% in competition with over 100 other refiners at the time of the trial that resulted in the government-forced breakup). Practices which these entities may be accused of include dumping products below cost to harm competitors, creating tying arrangements between their products, and other practices regulated under antitrust law.
Large corporations often attempt to monopolize markets through horizontal integration, in which a parent company consolidates control over several small, seemingly diverse companies (sometimes even using different branding to create the illusion of marketplace competition). Such a monopoly is known as a horizontal monopoly. A magazine publishing firm, for example, might publish many different magazines on many different subjects, but it window would still be considered to engage in monopolistic practices if the intent of doing this was to control the entire magazine-reader market, and prevent the emergence of competitors.
A monopoly arrived at through vertical integration is called a vertical monopoly. A common example is vertical integration of electricity distribution with electricity generation, which is common because it reduces or eliminates certain costly risks. Coercive monopoly
A coercive monopoly is one psychology that arises and whose existence is maintained as the result of filiation any sort of activity that violates the principle of a free market and is therefore insulated from competition which would otherwise be a potential threat to its superior status. The term is typically used by those who favor laissez-faire capitalism.
CONSUMER PROTECTION
Consumer protection is government regulation to protect the interests of consumers, for example by requiring businesses to disclose detailed information about products, particularly in areas where safety or public health is an issue, such as food. Consumer protection is linked to the idea of consumer rights (that consumers have various rights as consumers), and to consumer organizations which help consumers make better choices in the marketplace.
Consumer law
Consumer protection law or consumer law is considered an area of public law that regulates private law relationships between individual consumers and the businesses that sell them goods and services. Consumer protection covers a wide range of topics including but not necessarily limited to product liability, privacy rights, unfair business practices, fraud, misrepresentation, and other consumer/business interactions.
REFERENCES and LINKS:
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