Copyright infringement

An advertisement for copyright and patent preparation services from 1906, when copyright registration formalities were still required in the US.

Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works. It often refers to copying intellectual property without written permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work's creator.

Colloquial terminology

Copyright infringement is often associated with the terms piracy and theft. Although piracy connotes brazen high-seas robbery and kidnapping, it has a long history of use as a synonym for certain acts which were later codified as types of copyright infringement. Theft is more strongly hyperbolic, emphasizing or exaggerating the perceived harm of infringement to copyright holders who choose to exploit their copyrights for profit; it connotes a kind of loss which infringement may not actually effect, and the U.S. Supreme Court has even ruled that infringement does not "easily" equate with theft.^[1]

"Piracy"

The practice of labelling the infringement of exclusive rights in creative works as "piracy" predates statutory copyright law. Prior to the Statute of Anne 1709, the Stationers' Company of London in 1557 received a Royal Charter giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labelled pirates as early as 1603.^[2] After the establishment of copyright law with the 1709 Statute of Anne in Britain, the term "piracy" has been used to refer to the unauthorized manufacturing and selling of works in copyright.^[3] Article 12 of the 1886 Berne Convention for the Protection of Literary and Artistic Works 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."^[4] Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires criminal procedures and penalties in cases of "wilful trademark counterfeiting or copyright piracy on a commercial scale."^[5] 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 networks, as "piracy."^[3]

"Theft"

An unskippable anti-piracy film included on some movie DVDs equates copyright infringement with theft.

Copyright holders frequently refer to copyright infringement as "theft." In copyright law, infringement does not refer to actual theft, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization.^[6] Courts have distinguished between copyright infringement and theft, holding, for instance, in the United States Supreme Court 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, 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.^[1]

Enforcement responsibility

The enforcement of copyright is the responsibility of the copyright holder.^[7] Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries enable courts to remedy copyright infringement with injunctions and the destruction of infringing products, and award damages.^[5] Copyright holders have started to demand through the ACTA trade agreement that states act to defend copyright holders' rights and enforce copyright law through active policing of copyright infringement^[8]. 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.^[7]

Criminal liability

Article 61 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries establish criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale".^[5] Copyright holders have demanded that states provide criminal sanctions for all types of copyright infringement.^[7]

In India Under the Copyright Act, 1957 Section 63 it has been provided that "Any person who knowingly infringes or abets the infringement of the copyright in a work shall be punishable with imprisonment which may extend to one year, or with fine, or with both."

Online intermediary liability

Whether Internet intermediaries are liable for copyright infringement by their users is a subject of debate and court cases in a number of countries.^[9]

Definition of intermediary

Internet intermediaries were formerly understood to be internet service providers (ISPs). However, questions of liability have also emerged in relation to other Internet infrastructure intermediaries, including Internet backbone providers, cable companies and mobile communications providers.^[10]

In addition, intermediaries are now also generally understood to include Internet portals, software and games providers, those providing virtual information such as interactive forums and comment facilities with or without a moderation system, 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, a crucial element of the World Wide Web.

Litigation and legislation

Early court cases focused on the liability of Internet service providers (ISPs) for hosting, transmitting or publishing user-supplied content that could be actioned under civil or criminal law, such as libel, defamation, or pornography.^[11] 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 varies widely from country to country. The first laws on online intermediaries' liability were passed from the mid 1990s onwards.^{[citation needed]}

The debate has shifted away from questions about liability for specific content, including that which may infringe copyright, towards whether online intermediaries should be generally responsible for content accessible through their services or infrastructure.^[12]

The U.S. Digital Millennium Copyright Act (1998) and the European E-Commerce Directive (2000) provide online intermediaries with limited statutory immunity from liability for copyright infringement. Online intermediaries hosting 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. In U.S. law this is characterized as "safe harbor" provisions, and in European law as the "mere conduit" principle.

Peer-to-peer issues

Peer-to-peer file sharing intermediaries have been denied access to safe harbor provisions in relation to copyright infringement. Legal action against such intermediaries, such as Napster, are generally brought in relation to principles of secondary liability for copyright infringement, such as contributory liability and vicarious liability.^[13]

The BitTorrent protocol: In this animation, the colored bars beneath all of the 7 clients in the upper region above represent the file, with each color representing an individual piece of the file. After the initial pieces transfer from the seed (large system at the bottom), the pieces are individually transferred from client to client. The original seeder only needs to send out one copy of the file for all the clients to receive a copy. To stop animation, click browser's Stop or hit ESC key.

These types of intermediaries do not host or transmit infringing content, themselves, but may be regarded in some courts as encouraging, enabling or facilitating infringement by users. These intermediaries may include the author, publishers and marketers of peer-to-peer networking software, and the websites that allow users to download such software. In the case of the BitTorrent protocol, intermediaries may include the torrent tracker and any websites or search engines which facilitate access to torrent files. Torrent files don't contain copyrighted content, but they may make reference to files that do, and they may point to trackers which coordinate the sharing of those files. Some torrent indexing and search sites, such as The Pirate Bay, now encourage the use of magnet links, instead of direct links, to torrent files, creating another layer of indirection; using such links, torrent files are obtained from other peers, rather than from a particular website.

Since the late 1990s, copyright holders have taken legal actions against a number of peer-to-peer intermediaries, such as Napster, Grokster, eMule, SoulSeek 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.^[14]

Nevertheless, whether and to what degree any of these types of intermediaries have secondary liability is the subject of ongoing litigation. The decentralised structure of peer-to-peer networks, in particular, 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 technology towards more complex network configurations are said to have been driven by a desire to avoid liability as intermediaries under existing laws.^[15]

Countries where sharing files without profit is legal

Downloading copied music is legal in some countries in the context of the copyright, such as Canada,^[16] The Netherlands,^[17] Spain,^[18] and Panama, provided that the songs are not sold. In Canada it is legal to download any copyrighted file as long as it is for noncommercial use, but it is illegal to distribute the copyrighted files (e.g. by uploading them to a P2P network). ^[19]

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).^{[citation needed]} 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

This "see also" section may contain an excessive number of suggestions. Please ensure that only the most relevant suggestions are given and that they are not red links, and consider integrating suggestions into the article itself. (November 2011)

For a substantial discussion of copyright infringement in the domain of computer programs, see copyright infringement of software.

References

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
• Rosen, Ronald (2008). Music and Copyright. Oxford Oxfordshire: Oxford University Press. ISBN 0195338367. 
• Joe Karaganis, ed. (2011). Media Piracy in Emerging Economies. Social Science Research Council. ISBN 978-0-9841257-4-6. 

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 Newswire article challenges inflated copyright infringement claims by media companies
• US Copyright Office

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