Research Paper: Computers in the Workplace

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Computers & the Internet: Intellectual Property Rights

Copyright Law

Originality Requirement

Fixation Requirement

Subject Matter Requirement

Potential Issues with Derivative Works

Proving Copyright Infringement

Computers & the Internet: Intellectual Property Rights

In studying computers and the Internet, and the many issues that stem from these two technological achievements, it is clear that the study of Intellectual property law is of extreme significance. The ever changing and improving technology of computers allows users to create and develop works that we never may have dreamed of in decades past. However, while the Internet allows these creators to share and receive feedback on their technological innovations, at the same time the Internet allows for significant violations of these creators' intellectual property rights in their works to occur. While copyright law, patent law, and trademark law are key concepts for intellectual property rights, this paper will only examine copyright law as it is the most applicable to computers and the Internet. Accordingly, this paper will explore the basic concepts of copyright law as they relate to growing concerns with computers and the Internet.

Copyright Law

Copyright protection is given to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" (17 U.S.C. § 102(a) (2006)). In other words, a work must be original, fixed in a tangible medium of expression, and within the proper subject matter. Accordingly, many works created by computers (such as animation, video editing, and even literary prose) may qualify for federal copyright protection if the work is original, fixed in a tangible medium of expression, and meets the necessary subject matter requirements of the Copyright Act. Establishing that a work qualifies as being "copyrightable" is important for creators who use the technology of computers to create their work in that the remedies available under copyright law will help them maintain intellectual property rights to their creations.

A.

Originality Requirement

First, in terms of defining what is an original work, scholars and the Supreme Court held that there are two sub-requirements: originality and creativity (Nimmer, 2002, § 106(a), 1.08(C)(1), 2.01(a)-(B))). The Supreme Court ruled that "originality" should involve some degree of creativity, however small (Feist Publications, Inc. v. Rural Telephone Service Co., 1991). Essentially, the Supreme Court in Feist added a new requirement for works to receive copyright protection: there must be a creative element.

Additionally, the U.S. Supreme Court has commented on the creativity requirement for original works. In 1903, Justice Holmes developed the idea that if certain works "command the interest of any public, they have a commercial value -- it would be bold to say that they have not an aesthetic and educational value -- and the taste of any public is not to be treated with contempt" (Bleistein v. Donaldson Lithographing Co., 1903). That is, works which have a high value to the public qualify as creative enough for earning copyright protection (Kundstadt, 2009, p. 777).

There is no doubt that the majority of works created using computers will satisfy the originality and creativity requirements of copyright law so as to qualify as an original work of authorship. Many of the works we enjoy on the Internet qualify as being original and creative by meeting the standard the Supreme Court set in Bleistein because these works "command the interest of the public." However, there indeed works created by computers that will not meet the originality requirement for copyright protection (such as works that are purely functional -- ranging from fonts to ideas that are not expressed creatively). One should note that under federal copyright law, there is no copyright protection for ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries (17 U.S.C. § 102(b)). This "rule" is most commonly known as the "idea-expression" dichotomy.

B.

Fixation Requirement

Second, a work must be fixed in a tangible medium of expression to receive copyright protection (17 U.S.C. § 102(a)). The Copyright Act holds that a work is fixed when its embodiment is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration (17 U.S.C. § 101(f)), Accordingly, one can argue that works created by computers indeed meet the fixation requirement because, although they may be digital, these works may be sufficiently permanent so as to be perceived or even reproduced for more than a transitory period of time. The works a creator makes using a computer often lasts for years upon years, certainly as long as the creator wishes to have his/her work remain in existence.

Furthermore, the fixation requirement is especially important for the issues of this paper because when there is a lawsuit over copyright infringement, it is necessary to compare the protected work to the accused infringing work; so, having two fixed works to compare and assess the degree of similarity is very helpful to determine whether copying was plausible.

C.

Subject Matter Requirement

Third, a work seeking to receive copyright protection must qualify as one of the eight subject matter categories provided by the Copyright Act: (1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic works; (5) pictorial, graphic and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works (17 U.S.C. § 102(a)). It therefore seems that works created by computers and placed on the Internet could potentially qualify under the subject matter categories of literary works; musical works; dramatic works; pictorial or graphic works; motion pictures or audiovisual works; and sound recordings.

D.

Potential Issues with Derivative Works

Another aspect of copyright law that must be considered is the issue of derivative works. The Copyright Act defines a derivative work as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted" (17 U.S.C. § 101). A derivative work may obtain its own copyright, provided that it is sufficiently original; it may also be based on another copyrighted work or based on a work in the public domain. In the latter case, copyright in the derivative work applied only to the new creative expression.

The issue of derivative works is especially important for works created by computers and placed in the realm of the Internet because many creators base their own works off of pieces or creations from other users online. Some creators argue they are minimally inspired and that their works are not derivative works, but rather new and original works that merit independent copyright protection. Thus, the area of derivative works is a complex one for works created and distributed, displayed, or simply accessed via the Internet. It not doubt makes proving copyright infringement very difficult.

E.

Proving Copyright Infringement

To establish that his/her work has been infringed, the creator (or holder of the copyright) must establish three elements. First, that the creator owns the copyright. Second, that the alleged infringer did indeed copy the creator's work. Third, that the alleged infringer copied something substantial through improper/unlawful appropriation. These three factors were established in a landmark case decided in 1946, Arnstein v. Porter. In that case, the Second Circuit court decided that copying may be shown in the following ways: 1) direct evidence; 2) circumstantial evidence (demonstrating access to the work and similarities between the two works at issue); and 3) circumstantial evidence (demonstrating striking similarity between the two works at issue).

It seems that most cases of copyright infringement for issues of computer created work and the Internet could potentially be established in any of the three aforementioned ways from Arnstein. The easiest way to establish infringement would be under the first way of direct evidence; demonstrating that an eyewitness saw copying or if the alleged infringer admits to the copying. The second and third ways of establishing infringement through circumstantial evidence are both equal in terms of ease or difficulty. For the second way, it seems that establishing access would be relatively easy for issues with computers and the Internet because many computers and Internet companies record the pages and information accessed by a user. And as for similarity under this second method, it seems that the burden would shift to the alleged infringer to prove that he created the work at issue independently and that it is a mere coincidence that the two works are similar. For the third way, establishing circumstantial evidence through striking similarity will only be easy for two works that are just that: striking or substantially similar. That is, there is a similarity so striking that the similarity alone gives rise to an inference of copying, even without the specific evidence of access by the alleged infringer.

Conclusion

In general, the length of copyright protection depends on when the work was created. The Copyright… [END OF PREVIEW]

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