Copyright on the Internet
copyright 1996, 1997
updated April, 1997
Editor: Donald M. Cameron , Ogilvy Renault
Contributors: Donald M. Cameron , Tom S. Onyshko & W. David Castell
Contents
2. What Qualifies for Copyright Protection?
4. Cases on Copyright Infringement on the Internet
posting other people's material on the Net
liability of Internet Service Providers and Hosts
Industry Canada Content-Related Internet Liability Study
links: Footnotes that take you there
6. Licensing Copyright and Moral Rights
1. What is Copyright?
Copyright, as its name suggests, includes the right to prevent others from copying one's work. Copyright does not protect all forms of information against all forms of copying but it provides a useful bundle of rights that may apply to protect data on the Internet and electronic bulletin board systems.
Copyright is established by federal statute in Canada and the United States.(6) These statutes set out a variety of related rights which belong to the copyright holder:
the right to stop infringement by copying the whole or a substantial part of the work;(7) the right to record a literary, dramatic or musical work where the record is mechanically performed, or delivered;(8)
the right to communicate a work to the public by telecommunications;(9)
the right to import a work for selling or hire;(10)
in respect of computer software, the right to rent out a computer program;(11)
in respect of artistic works, the right to present a work at a public exhibition;(12) and
in the United States, the right to prepare derivative works.(13)
The Canadian statute also provides for moral rights, which belong to the creator of the work.(14) Moral rights are owned by the author(s) even if the copyright in the work has been assigned to someone else. They cannot be assigned but can be waived.(15)
2. What Qualifies for Copyright Protection?
To be protected by copyright, a creation must fit within one or more of the recognized categories of subject matter. The basic categories of "works" are literary, dramatic, artistic or musical.(16) The Canadian Act includes a computer program within its definition of a literary work.(17) Another category of work is the compilation, which applies to works resulting from the combination of other categories of works and works resulting from the selection or arrangement of data.(18) Multimedia products and databases are good examples of compilations.
A work must be "fixed" in a more or less permanent form before it will receive copyright protection.(19) Fixation occurs when text is written (or typed and saved on a computer), a graphic is drawn, or an audio work is recorded. The particular storage medium is irrelevant. As well, the work must be of a sufficient size in order to be protected. Traditionally, song or book titles were too short to constitute a literary work and were denied copyright protection. (20)
A work must be "original" to qualify for copyright but the standard of originality is not particularly high. Usually, a work will be original where it involves the creator's own expression rather than copying from another source. In the case of compilations, the United States Supreme Court has ruled that a compilation must show originality in either the arrangement or the selection of its data. In Feist Publications Inc. v. Rural Telephone Service Company Inc. , (21) the court held that a phone book which listed all telephone numbers in a particular area in alphabetical order did not qualify for copyright protection. The directory failed to display originality in either its arrangement (all subscribers listed alphabetically by last name) or its selection (all subscribers within a particular area). Later U.S. decisions have found the necessary degree of originality in other types of telephone directories. (22)
It remains unclear whether Feist will apply in Canada. Traditionally, Canadian and English courts have provided a higher level of protection to compilations; they have protected compilations on the basis of the labour spent by the creator rather than the originality of the work, (23) which is sometimes referred to as the "sweat of the brow" test. However, the definition of a compilation included in the Canadian Copyright Act in 1993 suggests that selection and arrangement of data are the key elements necessary to qualify for copyright protection. (24) In a recent Canadian case, Tele-Direct (Publications) Inc. v. American Business Information, Inc. (25) , the court considered whether the "yellow pages" produced by the plaintiff could be protected under the Copyright Act as a compilation. The court explicitly avoided dealing with whether Feist should be adopted in Canada. Instead, the court focussed on the particular facts of the case, concluding that Tele-Direct exercised only a minimal degree of skill, judgment or labour in its overall arrangement which was insufficient to support a claim of originality in the compilation so as to warrant copyright protection.
A basic principle of copyright is that it will protect original expression but will not protect the general ideas or facts being expressed. (26) For example, in the case of a compilation of facts, copyright will prevent others from copying a substantial portion of the compilation or copying the form in which the facts are expressed. Note that copyright will not prevent others from taking a particular fact from the compilation, expressing it in their own manner and then using it for their own purposes.
On the other hand, copyright does protect ideas in the limited sense that it will protect certain levels of abstraction of a work, such as the plot of a movie or book. In the case of software, courts have ruled that copyright will protect the "structure, sequence and organization" of a program. (27) In order to qualify for protection, the abstraction must be so closely tied to the work that they may be considered part of the expression of the work. The U.S. jurist Learned Hand proposed an influential "levels of abstraction" test, which has been summarized as follows: "Judge Hand recommended comparing the similarities between the two works as a `series of abstractions' of increasing generality. If the similarities pass beyond the point of mere `ideas' into the realm of expression, there is infringement." (28) The line between the idea and expression of a work is difficult to determine and will be drawn on a case-by-case basis.
To receive protection under the Copyright Act of Canada, the work must either be created in Canada or be created by a citizen of a group of countries who have agreed to offer reciprocal rights to Canadian authors in their countries. (29) Where these requirements are met, copyright arises automatically. Registration of a work makes it easier to prove the author's copyright at a later date, but registration is not necessary in order for copyright to arise.
3. What is Copyright Infringement?
Copyright prevents the copying of all or a substantial part of a work. Whether a portion of a work is "substantial" is a subjective question, which includes a consideration of both the quality and quantity of the portion. There can be copyright infringement where only a small portion of the work is copied but the portion is of great qualitative importance in the original. (30) For example, one English case found infringement where a newsreel producer recorded 20 seconds of a popular march without the permission of the copyright owner. (31) Moreover, the intention of the defendant is irrelevant to the question of whether infringement occurred. As former Beatle George Harrison learned, unconscious copying of a portion of a work may amount to infringement. (32)
There are two main types of copyright infringement. The first is direct infringement, where the defendant has copied the whole or a substantial part of the work. The second is contributory infringement, where the defendant has authorized another to make infringing copies of the work. (33) What amounts to "authorizing" another to make infringing copies will depend on the facts of each case. (34) However, merely making a method of copying available to another person may not amount to contributory infringement.
For example, in Sony Corp. v. Universal City Studios (35) the U.S. Supreme Court rejected a claim that a manufacturer of video cassette recorders was liable for contributory infringement because people might use them to make unauthorized copies of copyright movies shown on television. The court reasoned that there were other, legitimate uses for video cassette recorders, such as using the VCR to temporarily "time-shift" programs. Because the machines were capable of substantial non-infringing uses their sale did not amount to contributory infringement.(36)
Some limited ability to use copyright material without authorization is provided for by statute. In Canada, s. 27 of the Act sets out the "fair dealing" defence which applies to "any fair dealing with any work for the purposes of private study, research" and "any fair dealing with any work for the purposes of criticism, review or newspaper summary, if (i) the source, and (ii) the author's name, if given in the source, are mentioned." (37) In the United States, a more flexible and sophisticated "fair use" defence exists. The U.S. Act states that whether a particular use is "fair use" will be determined based on four factors: the purpose of the use, the nature of the copyrighted work, the amount used, and the effect of the use on the commercial market for the original.(38)
4. Cases on Copyright Infringement on the Internet
posting other people's material on the Net
One cannot put or keep someone else's copyrighted material on the Internet without that person's permission. A handful of U.S. cases have considered the liability of parties who themselves have placed copyrighted material belonging to someone else on the Net or who have provided on-line services (or bulletin boards) which allowed others to post copyright material belonging to someone else.
In Playboy Enterprises Inc. v. Frena , (39) the court held that digitized photographs from the adult magazine appearing on Frena's bulletin board service infringed the magazine's public distribution and display rights. The court reasoned that at the end of the exercise, the user had a copy of the work: thus, someone had infringed the reproduction right, either the user or Frena. It is an interesting question whether Frena might be liable for contributory infringement if the user was the infringer. The court did not deal with the infringement of the reproduction right because it was uncertain whether the operator of the bulletin board system had reproduced the works when they were uploaded and downloaded by users of the system. (40)
Another case confirms that copyright will prevent the unauthorized electronic distribution of software. In Sega Enterprises Ltd. v. Maphia , (41) the court granted a preliminary injunction to prevent bulletin board services and a bulletin board operator from posting programs extracted from Sega video game cartridges. The court found that the defendants were liable for contributory infringement because there was "copying" each time the games uploaded onto the bulletin board or downloaded from it. In addition, the court found that the defendant's actions did not amount to "fair use" under the U.S. Copyright Act because the use of the unauthorized copies would be very damaging to Sega's commercial interest. (42) The Maphia case did not deal with the infringement of the distribution right. Quare whether allowing browsing of the works on the bulletin board system also constitute displaying the work publicly.
Religious Technology Center brought actions in Virginia and Colorado for copyright infringement of Church of Scientology texts based on electronic postings. In the January 1996 decision in Religious Technology Center v. Lerma , the Federal Court found an individual liable for posting part of the Church's teachings on the Internet. (43) An action against a Colorado group opposed to the Church which maintains a bulletin board of materials relating to the Church has not yet been resolved. In a pre-trial ruling in the action, the Federal Court denied the plaintiff a preliminary injunction on the ground that the defendant would likely be able to prove fair use. (44)
liability of Internet Service Providers and Hosts
Internet Service Providers ("ISPs") can act as hosts storing information posted by a subscriber. Many Home Pages on the World Wide Web are hosted by ISPs; Compuserve and America Online host discussion groups on which users can post messages and material. To avoid transmission delays, the most popular sites are often mirrored (copied and stored locally) by ISPs. ISPs also act as a conduit for messages between users, the transmission of which necessarilly involves the copying of the message along the way and at the destination's electronic mailbox. Although in some cases they do not create the content, they have ultimate control over what goes onto and through the Internet.
Digital versions of copyrighted music cannot be put on the Net without the copyright owner's permission. The Frank Music Corp. v. CompuServe Inc. lawsuit was a class action brought by the publishers of musical works in the U.S. Federal Court on November 29, 1993.(45) The publishers sued CompuServe because the on-line service provider had a MIDI/Music Forum where subscribers could upload and download musical compositions in the form of digital files. The files could then be played back through a synthesizer. The plaintiffs claimed that CompuServe knew or should have known copyrighted musical works had been made available through the music forum for copying by the service provider's subscribers.
The music forum was neither owned nor operated by CompuServe but was one of thousands of such forums carried by the service provider. The forum operator warranted to CompuServe that the material did not infringe copyright. Consequently, CompuServe took the position that it was not responsible for infringement because the forum was operated by another party. It argued that copying or distributing originated with users. This raised the question of whether an on-line service operator should be held liable for copyright infringement when it had no knowledge that unauthorized copyrighted works have been made available to its subscribers.
However, the questions raised by the Frank Music Corp. case were not answered by the court as the parties settled the case in November, 1995. According to news reports, CompuServe agreed to pay $568,000 to the music publishers and agreed that it would require the operator of the music forum to obtain licences for the future use of copyright material.(46)
It has been suggested that under Canadian copyright law the transmission of a file containing a musical work over the Internet might be a performance "in public". Since a "performance" must be a visual or acoustic representation of the work, unless the transmission over the Internet is "real-time" and not merely the transmission of a file for later "playing", such activity is more likely to be found to be a communication of the work to the public by telecommunication.
Unless the transmission is permitted, the transmission of a file over the Internet and subsequent "copying" onto a users machine may constitute "authorizing" copyright infringement by the person who transmits the file (For an analogy to TV cable companies authorizing infringement, see C.C.T.A. v. Canada).
One of the most active litigators in the area of determining the liability of posters and hosters is the Religious Technology Center which enforces the copyrights owned by the controversial Church of Scientology and its founder L. Ron Hubbard. (47)
Issues relating to technology, copyright and the liability of a service provider were considered in the U.S. Federal Court's pre-trial ruling in Religious Technology Center v. Netcom On-line Communications Services Inc . (48) There, the copyright owner of texts relating to the Church of Scientology brought an action when a critic of the Church posted portions of the texts to the Internet discussion group "alt.religion.scientology." The lawsuit named the critic and Netcom, the service provider which permitted the critic access to the Internet.
At a hearing to consider whether the lawsuit should be dismissed against Netcom, the plaintiff made several interesting arguments. It argued that Netcom was liable for direct copyright infringement since its computer equipment made temporary electronic copies of the material posted to discussion groups as part of the implementation of the discussion group system. It argued that Netcom was vicariously liable for infringement by its subscribers, in the same way that an employer might be liable for infringement by an employee. Finally, the plaintiff argued that Netcom was liable for contributory infringement because it failed to block access by the critic even after it had received complaints from the plaintiff.
In a ruling seen as a partial victory for on-line service providers, the court decided that Netcom could not be found liable based on the plaintiff's first two arguments. The copying that occurred as an incidental part of the discussion group system was held not to be direct infringement. There was no vicarious liability as Netcom did not benefit financially from the subscriber's actions (beyond the payment of a fixed fee). However, the court found that Netcom might be liable for contributory infringement because of its failure to act after notice from the copyright holder that infringement was taking place. The Court stated that a service provider would not be expected to act on a mere allegation but that at some point legitimate notice might compel the service provider to cut off the subscriber's access. Finding that there was a genuine issue for trial, the court refused to dismiss the lawsuit against Netcom. The case settled on August 2, 1996. The terms of settlement were not made public. (49)
Industry Canada Content-Related Internet Liability Study
The Information Highway Advisory Council Report in September, 1995, recommended that ISPs be liable only if (a) they had actual or constructive knowledge that the material infringed copyright and (b) they acted reasonably to limit potential abuses.
Following a recommendation from the Report, Industry Canada commissioned a study to determine who should be liable on the Internet. The 300 page final report, released in March, 1997 described the state of the law in content-related liability and liability issues.
Content providers want a content tracking and billing system. ISPs want "common carrier" liability (that is, non-liability) where they act merely as a conduit for material. (50) The thornier issues are the liability of the ISPs for cacheing and for when they are given notice that copyrighted material has been posted on their servers without the claimant's approval.
Links: Footnotes that take you there
The World Wide Web allows readers to jump from Web page to Web page anywhere in the world by clicking on a link. A link is analagous to a footnote in a standard book in that it gives the location or address of further sources of information that might be of interest to the reader. The link contains the address of another document somewhere on the World Wide Web, usually in the form of its URL or "uniform resouce locator" (http://...etc). Clicking on a URL results in a copy of the destination Web page being sent to the viewer's computer.
In the Shetland Islands, competing newspaper publishers are creating new law on the liability of creating links to Web pages owned by others. The Shetland News created links on its Home Page to pages of its competitor, The Shetland Times Ltd. The Times sued the News for copyright infringement and obtained the equivalent of an interlocutory injunction or temporary restraining order against The News. (51) The case has caused great concern amonst users of the Internet because everyone had assumed that mere placement of material on the World Wide Web granted an impled licence for anyone to link to it and download a copy to read.
An unresolved question is: If a Home page expressly limits access to it or copying of it after passing through another page (such as one containing advertising, credits or introductory statements) does creating a link to that page constitute inducing and procuring copyright infringement?
Shrinkwrap licences and the Net
Shrinkwrap licence agreement can protect databases that are not protected by copyright. In ProCD v. Zeidenberg , (52) the defendant bought a copy of SelectPhone, ProCD's CD-ROM "yellow pages" product, which contained listings of numbers found in U.S. telephone directories (a business that succeeded as a result of the Feist decision: ProCD had copied the directories of others and loaded them onto a CD with searching software). The package bore a copyright notice and stated that the use of the data was subject to the "enclosed licence agreement". The licence agreement was printied in full on the inside of the User Guide, on each CD ROM and on the screen when the software is in use. The material offered to allow the purchaser to return the product for a refund if they could not agree with the terms of the licence.
Zeidenberg used the ProCD database of telephone numbers and wrote his own software program which permitted searches of the database. He then offered a service to the public over the Internet which searched telephone numbers for free.
ProCD brought a lawsuit in District Court against the defendant, alleging that he had violated its copyright in the SelectPhone product and that he had breached the terms of a shrinkwrap licence agreement which accompanied it. The District Court dismissed the lawsuit. On the copyright infringement issue, the court applied Feist , which found that a factual compilation such as a telephone book could only be protected under the U.S. Copyright Act based on the originality displayed in the selection or arrangement of its contents. The District Court held that the ProCD database did not show the necessary originality in its selection or arrangement and so could not be protected.
On the licensing agreement issue, the District Court held that the licence was not binding because it was not printed in full on the outside of the box where it could be read prior to purchase. On appeal, the Court of Appeal for the Seventh Circuit reversed the District Court and held that the licence was valid and binding and that the notice on the box provided notice that the software was being acquired subject to the licence, just as a normal consumer purchase would be governed by the warranty card found inside the package. The court found that ProCD's contract law right under the agreement was not preempted by the U.S. Copyright Act because the contract was not "equivalent to any of the exclusive rights within the general scope of copyright"; contracts do not create "exclusive rights". The terms of the shrinkwrap agreement were commercially reasonable and did not contain terms that were unconscionable, overreaching or otherwise unfair.
authors' royalties for electronic republication
The migration from paper to "bits" has created another battleground pitting authors against paper publishers as the paper-based publishers try to bring their products on-line in the form of e-zines. (53) Standard publishing agreements for freelance writers did not usually cover reproduction of the work in a multimedia product.
U.S.A.
In 1986, Forbes magazine was successfully sued in Small Claims Court by a disgruntled writer after he found on NEXIS a copy of the article he wrote for the magazine. The writer won $600 for breach of contract.
Some publishers, such as the New York Times, have taken a strong stance, requiring all contributors to assign copyright for all works published in their papers allowing them free use of the material in electronic form. Writers have revolted, some refusing to write for the publication. Other publications such as SCIENCE, agree to share revenues from e-zines with authors.
A group of writers has sued the New York Times , Time Inc., Newsday , the Atlantic Monthly and two database publishers for allegedly putting their articles in on-line systems and CD-ROM products without authorization. (54) Recently, Atlantic Monthly settled the lawsuit and agreed to negotiate for electronic rights to freelance articles in the future. (55)
Canada
Concerned Writers of Canada, a group of Canadian writers, started a class action lawsuit against Thomson Newspapers in the summer of 1996 to prevent the unauthorized electronic reproduction of articles from their print publications. In the U.S.A., the National Writers Union has launched a lawsuit involving a number of parties.
SOCAN recently tendered a tariff with the Canadian Copyright Board with suggested fees to be paid by ISPs for the transmission of musical works to the public through the Internet.
Publishers and authors should include clauses providing for electronic publishing rights in all publishing contracts.
The solution to the problem of sharing revenues from WEb publications may be partly technical: mechanisms now exist to monitor and charge for the access to articles and papers on the Net. (56)
5. Moral Rights
The Copyright Act grants a moral right to the author to protect the "integrity of the work" and the author's own reputation. (57) Authors may assert the moral right when a work is "distorted, mutilated or otherwise modified" or "used in association with a product, service, cause or institution" in a way that would prejudice their reputation. In addition, the moral right gives authors the right to have their names or pseudonyms associated with their works or, alternately, to remain anonymous.
Moral rights exist independently of copyright and cannot be assigned to another party by the author. However, moral rights can be waived, in whole or part, by the author. Thus, many contracts for the production of intellectual property will include provisions which require the author to waive any moral rights in the work.
Moral rights appear to be intended primarily for works with a high degree of artistic expression. Nevertheless, moral works apply to all works protected by copyright, including commercial works such as computer programs. For example, in Nintendo of America Inc. v. Camerica Corp. , (58) one of the plaintiffs alleged that his moral rights as the author of computer video games had been infringed by a device which altered the play characteristics of the video game.
A potential problem exists with message "filtering" software: software that edits out profane, obscene or other selected words from a message, possibly significantly amending the meaning of the message. For example, CYBERSitter, a "blocking program" intended to shield children from messages unwanted by a parent or guardian does not simply block the message in its entirety but simply deletes "selected" words. Such programs change the phrase "anti fascism conservative" to "anti conservative", clearly changing the "integrity" of the message.
6. Licensing Copyright and Moral Rights
Obtaining copyright and moral rights clearances will undoubtedly be a major legal and administrative headache for Internet content providers. Locating the owners of the copyright can be difficult: there are no directories as such and, since registration of copyright is unnecessary, no government index exists. In addition, the Canadian "fair dealing" defence and U.S. "fair use" defence generally do not permit commercial use of copyrighted material.
Due to the nature of intellectual property rights, the person who proposes to use a work in a particular way must have permission from the copyright owner which applies to the situation. This may cause problems for businesses which have bought the right to publish material in a traditional manner and now wish to make it available in an electronic format.
7. Other Sources
Other papers or sources of information are:
- Bloom, Glenn and Denholm, Thomas; "Copyright Access on the Internet: Is it Research?", presented at the September 1995 Annual Meeting of the Patent and Trademark Institute of Canada.
Endnotes
5. Working Group on Intellectual Property Rights, Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure (Washington, D.C.: Information Infrastructure Task Force, September 1995) at 60-61.
6. See: Copyright Act (Canada), R.S.C. 1985, c. C-42; Copyright Act of 1976 (U.S.).
7. Copyright Act , R.S.C. 1985, c. C-42, s. 3(l).
8. Ibid. , s. 3(l)(d).
9. Ibid. , s. 3(l)(f).
10. Ibid. , s. 44.
11. Ibid. , s. 3(l)(h).
12. Ibid. , s. 3(l)(g).
13. Copyright Act , 17 U.S.C.A. s. 106(2).
14. Copyright Act , R.S.C. 1985, c. C-42, ss. 14.1 and 14.2.
15. Ibid.
16. bid. , s. 2 (definitions of "artistic work," "dramatic work," "literary work," and "musical work").
17. Ibid. , s. 1 (definitions of "literary work" and "computer program"). The references to a computer program were added to the Act by R.S.C. 1985, c. 10 (4th Supp.), s. 1.
18. Ibid. , s. 2 (definition of "compilation"). The definition of a compilation was added to the Act by S.C, 1993, c. 44, s. 53.
19. Roger T. Hughes and Susan J. Peacock, Hughes on Copyright and Industrial Design (Markham: Butterworths 1984/updated to 1995) at 353.
20. See: British Columbia v. Mihhaljevic (1989), 26 C.P.R. (3d) 184 (B.C.S.C.), aff'd (1991) 36 C.P.R. (3d) 445 (B.C.C.A.); Via Rail Canada Ltd. v. Location Via-Route Inc. (1992), 45 C.P.R. (3d) 96 (Que. C.A). The phrase "You got the right one, uh-huh" was held not to be copyrightable in Takeall v. Pepsico Inc. , 29 U.S.P.Q. 2d 1913 (4th Cir. 1993), but the lyric "alone again" was protected as part of a copyrighted work in Grand Uptight Music Ltd. v. Warner Bros. Records, Inc. , U.S. Dist. LEXIS 198276 (N.D.N.Y. 1991),
where it was sampled into a rap song.
21. 111 S. Ct. 1282 (1991). For further discussion of the case, see for example: Jay Dratler, Jr., Intellectual Property Law: Commercial, Creative, and Industrial Property , Volume One (New York: Law Journal Seminars-Press, 1995) at 5-33 to 5-38.4.
22. See, for example: Key Publications v. Chinatown Today Publishing Enterprises, Inc. , 945 F. 2d 509 and Warren Publishing, Inc. v. Microdos Data Corp. , (1995) 21 The Computer Law Reporter 873. In these cases, the court found that there was some originality either in the types of businesses included in the directory or in the manner in which the information was presented.
23. See, for example, British Columbia Jockey Club v. Standen , [1983] 4 W.W.R. 5375 (B.C.S.C.); aff'd (1985) 66 B.C.L.R. 245. There, the defendant republished factual information which had been collected and compiled in the plaintiff's horse racing information sheet. Legg J. held that the defendant made substantial use of all the essential facts in the original publication. He wrote: "Although the defendant adopted that information to his own style and added information of his own, he nevertheless appropriated a substantial amount of the work, skill, judgment and knowledge of the Club."
24. Copyright Act , R.S.C. 1985, c. C-42, s. 2 (definition of "compilation").
25. June 28, 1996, Federal Court of Canada, Trial Division T-1373-94 (McGillis J.)
26. See, for example, Roger T. Hughes and Susan J. Peacock, Hughes on Copyright and Industrial Design (Markham: Butterworths, 1984/updated to 1995) at 311: "Copyright protects an original mode of expression, not the idea itself."
27. For Canadian cases on computer software, see: Gemologists International Inc. v. GemScan International Inc. (1986), 9 C.P.R. (3d) 255 (Ont. H.C.); Candour Group v. Argon Financial Consultants (1989), 25 C.P.R. (3d) 555 (B.S.S.C.); System Informatises Solartronix v. Cegep de Jonquiere (1988), 22 C.I.P.R. 101 (Que. S.C.).
28. Jay Dratler, Jr., Intellectual Property Law: Commercial, Creative, and Industrial Property , Volume One (New York: Law Journal Seminars-Press, 1995) at p. 5-12.
29. Copyright Act , R.S.C. 1985, c. C-42, s. 5.
30. See, for example: Janus v. A & M Records. , 827 F. Supp. 282 (D.N.J. 1993).
31. Hawkes and Son (London) Limited v. Paramount Film Service, Limited , [1934] 1 Ch. 593. In this case, the sound clip was determined to be qualitatively important because the song could be recognized from the clip.
32. Bright Tunes Music Corp. v. Harrisongs Music Ltd. , (1976), 420 F. Supp. 177. The U.S. court found that Harrison had infringed copyright by unconsciously copying the song "He's So Fine" in his composition "My Sweet Lord."
33. Copyright Act , R.S.C. 1985, c. C-42, ss. 3(1) and 27(1).
34. Roger T. Hughes and Susan J. Peacock, Hughes on Copyright and Industrial Design (Markham: Butterworths, 1984/updated to 1995) at 545.
35. 464 U.S. 417 (1984).
36. See also: CBS Songs Ltd. v. Armstrad Consumer Electronics , [1988] 2 All E.R. 484 (H.L.).
37. Copyright Act , R.S.C. 1985 c. C-42, s. 27(2)(a) and (a.1). For other defences to a copyright infringement action, see: ss. 27(2)(b) to (m), 27(3) to 276) and 28. Note that s. 27(2)(l) and (m) set out defences which permit the copying of a computer program in
38. Copyright Act , 17 U.S.C.A. s. 107.
39. 839 F. Supp. 1552 (M.D. Fla. 1993).
40. A later case also involved Playboy material. In Playboy Enterprises v. Event Horizon , the magazine sued for copyright infringement after the defendant scanned magazine material and made it available on a bulletin board. The case settled for $500,000 (U.S.). See: Aaron Taebi, "Information Superhighway -- Impact of Online Computer Services on Computer Law," (Jan-Feb. 1995) The Computer Law and Security Report , p. 37.
41. 30 U.S.P.Q. 2d 1921 (1994); 1994 U.S. Dist. LEXIS 5266 (N.D. Cal. 1994).
42. The court wrote at 22: "Based on Defendant's own statement that 45,000 bulletin boards like MAPHIA operate in this country, it is obvious that should the unauthorized copies of Sega's video games by defendants and others become widespread, there would be a substantial and immeasurable adverse effect on the market for Sega's copyrighted video game programs."
43. See: "`Fair Use' is Limited, Even on Internet," (February 5, 1996) National Law Journal , p. B1.
44. See: Religious Technology Center v. F.A.C.T.NET Inc. , 901 F. Supp. 1519 (D. Colo. 1995).
45. 93 Civ. 8153 JFK (S.D.N.Y.).
46. "CompuServe settles copyright infringement lawsuit filed by Frank Music," (1995) 22 Entertainment Law Reporter 22.
47. The subject of the Church's Internet litigation has even generated a home page of its own.
48. 907 F. Supp. 1361 (N.D. Cal. 1995).
49. Guide to Computer Law ; CCH Incorporated, 1996, No. 176, p. 6.
50. Report of Daniel Shap, The Legal Group for the Internet in Canada, September 9, 1996.
51. For further information, see: http://www.shetland-news.co.uk/headline/
52. 1996 U.S. App. No. 96-1139 (7th Cir. June 20, 1996) Lexis 14951 overturning 908 F. Supp. 640 (W.D. Wis. 1996).
53. The American Society of Journalists and Authors (ASJA) transmit a regular "Contracts Watch" Newsletter reporting on developments in the area. available from asja-manager@silverquick.com by sending the message (Re: Contracts Watch): join asjacw-list
54. Tasini v. N.Y. Times Inc. , 93-8678 (S.D.N.Y.). See: Fred Greguras, Michael R. Egger and Sandy J. Wong, "Multimedia Content and the Super Highway: Rapid Acceleration or Foot on the Brake?" (August 1994) 19 Computer Law Reporter 12 at 12.
55. American Society of Journalists and Authors, ASJA Contracts Watch , CW960412 (issued April 12, 1996).
56. For example, see a Micro Times article at http://www.microtimes.com/155/authorsrights.html
57. (1990) 34 C.P.R. (3d) 193 (F.C.T.D.), aff'd 36 C.P.R. (3d) 352. The rulings involved interlocutory proceedings which did not turn on the moral rights argument.
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