“To promote the Progress of Science and the useful Arts, by securing for limited time to Authors and inventors the exclusive Right to their respective writings and discoveries.”
U.S. Constitution, Article I, Section 8, Clause 8
Copyright has been an issue ever since the second smartest neanderthal man copied the specs for the wheel. Today the issue presents itself daily both in the news and in our workplace. This article will be focusing on the issues concerning digital copyright and how it applies to Flash designers. This will be done by looking at the US Copyright Act and the recently enacted Digital Millenium Copyright Act to see how they concern the Flash Developer. We are using the American legislation as a base as it is leading the global discussion on the topic. Although there will be minor differences in copyright laws between nations, all signatories to the Internation Digital Copyright Treaty will share a common theme. But before we continue it is important to note that this article is not legal advice and should not be taken as such. For legal advice please contact your lawyer or the Copyright office in your country. This is merely an article aimed at educating Flash designers about the concepts of copyrights. Congress enacted the Copyright Act in 1976 and the Digital Millennium Copyright Act (DMCA) in 1998. The later was required as preparation for the ratification of the World Intellectual Property Organization Treaty on digital copyright and to update the quickly aging American copyright legislation in light of the introduction of the Internet. Within the pieces of legislation concerning Copyright, there are several sections that deal with the main issues of copyright:
- Integrity of copyright management information (Sec 1202, DMCA 1998)
- Fair use (US Code, Title 17, Sec 107)
Integrity of copyright management information (CMI)
The Section deals with copyright information and essentially establishes its sanctity through the following subsections,
(a) Prohibits providing or distributing of false copyright management information.
(b) Prohibits the intentional removal or alteration of this information without authority. It also bars the dissemination of CMI or copies of works, knowing that the CMI has been removed or altered without authority. And,
(c) identifies what constitutes information that is used to manage the copyright of a work. This includes information about the work, the author, the copyright owner, and in certain cases the performer, writer, director or the work as well as the terms and conditions for use of the work. Copyright law has traditionally been viewed as a balance between the rights of copyright owners to profit from their creativity and the interests of society to learn from and build upon their works. To reach this end, the fair use doctrine was developed through a “substantial number of court decisions over the years” and became codified as law in Section 107 of the Copyright Act of 1976.
The concept of Fair Use eliminates the need to obtain permission or pay royalties for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research.” In order to establish what constitutes an infringement and what would be considered fair use the legislation provides four considerations…
The four factors (purpose, nature, amount, and effect) must be evaluated together to determine if the use of a copyrighted work is fair use. An understanding of these factors is essential to avoid liability for copyright infringement.
- The first factor favors nonprofit educational purposes.
- The second factor looks at the nature of the copyrighted work. The courts usually favor nonfiction over fiction and published works over unpublished ones.
- Amount and substantiality are difficult to gauge. According to the Copyright Office, “there is no specific number of words, lines, or notes that may be safely taken without permission.” Generally, excerpts are favored over entire works. Be aware that in some cases, a small portion could capture the heart or essence of a work and be considered infringement. This is an important note for flash designers to remember.
- Finally, the fourth factor is considered by some courts to be the most important one. It examines the effect copying has on the market for a copyrighted work. Should the user have purchased the copyrighted work? Will the copying damage the market for the copyrighted work?
This is where the law gets tricky. What constitutes fair use? It is however safe bet that any creative work that is used for commercial purposes that is substantially duplicated for use in a similar market will be seen as illegal.
To help define what is acceptable fair use, the Copyright Office offers the following examples: The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use:
‘quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental or fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.’
Source: U.S. Copyright Office. In Answer to Your Query: Fair Use. Publication FL 102, 1994.
Now lets look at how this applies to Flash and Designers.
Flash .exe/.swf files are creative works and qualifies for protection under the Copyright Act. While lawyers could argue, until your house was reposessed on the semantics, the aim of copyright legislation is designed to strike a balance between protecting the creative works of indivduals and impeding on the rights to Free Speech and to learn. Regardless of whether your creative work has the word “Copyright”, a little ‘c’ with a circle around it, , or the words “All rights reserved” on it or not, it is protected from copyright infringement at the time of creation. However having said that the best way to ensure your copyright is by advertising it. Use the Copyright symbol, followed by the year of publication, then the name of the copyright proprietor.
Like this, Copyright John Citizen. The key words to remember when deciding if your work has been infringed upon are “removal” and “alteration” of CMI and “distribution” of your work. In the spirit of the law, if someone loaded your movie into theirs with/without modification and without permission in a commercial context, it would constitute an infringement. If someone reverse engineers your .exe/.swf file and copies a substantial amount of your design, again in a commercial context, that too would constitute an infringment.
However that being said, if someone was copying/reverse engineering a small portion of your work for not-for-profit educational purposes, this would most probably not constitute an infringement of copyright. I’m am keeping this general because there is no hard and fast rule for deciding what is fair use and what is an infringment. The courts decide on the issue on a case-by-case basis.
There are currently no legal precedents in the US that bar linking to another site’s home page or deep-linking into the same site. Nor is there such a thing as an “international copyright” that will automatically protect an author’s work throughout the world. Protection against unauthorized use in a particular country basically depends on the national laws of that country. However, most countries offer protection to foreign works under certain conditions which have been greatly simplified by international copyright treaties and conventions.
Enjoy!
Disclaimer: This document was prepared JUNE 2000. It is not legal advice and should not be taken as such. For legal advice please contact your lawyer or the Copyright office in your country. This is merely an article aimed at educating Flash designers of the concepts of copyrights.
Sec. 1202. Integrity of copyright management information. DMCA 1998
(a) FALSE COPYRIGHT MANAGEMENT INFORMATION- No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement–
(1) provide copyright management information that is false, or
(2) distribute or import for distribution copyright management information
that is false.
(b) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION- No person shall,
without the authority of the copyright owner or the law–
(1) intentionally remove or alter any copyright management information,
(2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or
altered without authority of the copyright owner or the law, or
(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing, or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.
US Code Title 17 – Sec. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords
or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining
whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
(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. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
