Music Essay, Research Paper

A copyright is the right to produce, reproduce, and transform any

original work. Copyrights are only given to original works that fall

under the ?following seven categories: Literary works, Musical

works including accompanying any works, Dramatic works

including accompanying music, Choreographic works, Graphical

and sculptural works, Motion pictures and other audiovisual works,

Sound recordings, and Architectural works?1. Under the Canadian

copyright act any published or unpublished original work upon

creation will receive automatic copyright protection. Though

automatic copyright protection is given to original works the benefits

of having one?s copyright registered (Copyright Registration

Application: Page 8 & 9) with the Canadian Intellectual Property

Office (C.I.P.O) is that one receives a certificate of registration

which can be used to one?s advantage in the event of infringement

and prove of ownership in a court law. When any production,

reproduction, transformation of a work is gone without the

permission of the owner of a copyrighted work this becomes

copyright infringement. In cases of copyright infringement the

responsibility to report this infringement rests on the owner of the

copyrighted work however the Copyright Act does contain criminal

remedies, which apply to certain types of serious infringement or

piracy. The function of copyright laws in our society today are

particularly stringent on copyright infringement and these laws ought

to be reformed to decrease the amount of congestion in civil

litigation surrounding copyright infringement in our legal system.

Copyright laws beginnings started close to three centuries ago.

When first implemented its sole function was to prevent exact

replications of written work. During the mid 1800?s, the publishers

of the eighteenth-century poet James Thomson?s ?The Seasons?

regularly sued producers of unauthorized, or pirated, editions of the

popular poem, since the publishers obtained the copyrights from

James Thomson. This was the beginning of the extension of rights

given to copyright owners. Eventually the function of the copyrights

broadened to include control over transformation, publication,

imitation and unauthorized usage of an original work. Even when

copyrights are transferred from one owner to another the original

copyright owner has what is called ?moral rights being that any

changes to an original work being modification, distortion, mutilation

without the permission of the original author is infringing on the

original author?s moral rights?. 2

The intention of copyrights is based on the fundamental principle of

the necessity to protect all original intellectual property that fall under

the following categories: Literary works, Musical works including

accompanying any works, Dramatic works including accompanying

music, Choreographic works, Graphical and sculptural works,

Motion pictures and other audiovisual works, Sound recordings,

and Architectural works. However the intention of copyright law has

become particularly stringent since its inception.

With the multitude of rights and privileges given to authors and

copyright owners of original works the potential for negligence and

compliancy toward informing licensees can occur with the final

outcome of this situation being civil litigation. Negligence and

compliancy can occur by the author or copyright owner by

misrepresenting their work as being copyrighted, by labeling their

work with the copyright symbol implying that they are the

recognized owner or author but in actuality the duration of the work

has expired therefore the work has entered public domain. Duration

of most copyrighted works lasts for 50 years since the inception of

the copyrighted work. In the case of Tams-Witmark v. New Opera

Co., an opera company purchased the right to perform the comic

opera ?The Merry Widow? for $50,000 a year. After a little

more-than a year of performances, the opera company discovered

that the supposed copyrighted work had entered public domain

several years before due to the failure of the copyright owner to

renew the copyright. New Opera Co. then ceased paying royalties,

and after being sued by the owner of the abandoned copyright,

counterclaimed for damages in the amount paid to the owner on a

breach of warranty. The trial awarded the opera company $50, 500

in damages, and the court of appeals affirmed the judgment, finding

that ?The Merry Widow? ?passed, finally, completely and forever

into public domain and became freely available to the unrestricted

use of anyone?. This judgment by the New York Courts of Appeals

strongly supported the position that when the warranty of title to a

copyright is breached because the work is in the public domain, the

alleged copyright holder must provide restitution of any payment

made by the licensee. Though this decision protects licensees of

paying bogus royalties for supposed licensing rights and being able

to receive restitution for spurious payments but until copyright

infringement laws become less stringent and provide and greater

protection to licensees then the negligence of copyright owners will

still exist and still congest the legal system with civil litigation.

The issue of parody is one focal point to consider in the stringency

of Canadian copyright laws. Parody under the Canadian copyright

act is vaguely mentioned and is particularly stringent on copyright

laws and is a model example of the stringency of Canadian copyright

laws comparatively to the United States copyright laws. Parody or

parodies falls under the issue of fair dealing under both the Canadian

copyright act and the U.S copyright act. Under the Canadian

copyright act parodies or criticism fall under section 27 stating that

?The following acts do not constitute an infringement of copyright:

any fair dealing with any work for the purposes of private study or

research; any fair dealing with any works for the purposes of

criticism, review or newspaper summary, if the source, and the

author’s name, if given in the source?. Under section 107 of the U.S

copyright act it states ?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?. Section 27 of the

Canadian copyright act is comparatively more stringent then the U.S

copyright act on fair dealing of parodies and the Canadian copyright

act does not consider other factors involved in fair dealing such as

the U.S. copyright act does. In the case of MCA Canada Ltd ?

MCA Canada Ltee v. Gilberny and Hawke Advertising, where an

advertising agency prepared a parody of the words ?Downtown?

and used it for radio advertising purposes in Ottawa, it was held to

violate MCA Canada?s copyright had this case been under U.S

jurisdiction the case could have been found not to violate the

copyright because of the natured copyrighted work and the parody

being completely two different forms of expression one being a

dramatic work another being a sound recorded work. Another

consideration if this case had been in U.S jurisdiction is that the

parody is a derivative work and that the portion of the derivative

work is not substantial of the original copyrighted work. On the

other side of the argument is that even if this case were held under

U.S jurisdiction it would have still resulted in the same judgment.

One consideration to promote this argument is that the derivative

work would be held to violate the original copyrighted work

because the purpose of the parody or derivative work was for

commercial use to facilitate the advertising agency into being able to

reap financial gain. Another contributing factor to promote this

argument is the effect of the parody or derivative work on the

original copyrighted work if the derivative work or the parody was

found to have drastic impact on the original copyrighted work then

this final consideration would result in the same judgment as in the

Canadian jurisdiction. Though in this example the case could result

either way under the U.S copyright act still comparatively to the

Canadian copyright act the U.S copyright act provides greater

clarity on the copyright doctrine of fair dealing and because of the

vagueness of the doctrine of fair dealing in the Canadian copyright

act the Canadian copyright act becomes more stringent on copyright

laws. The U.S copyright act is significantly less stringent on the issue

of parody than Canadian copyright act because of the poor

interpretation of the copyright doctrine of fair dealing in the

Canadian copyright act.

The issue of copyright infringement and the Internet is one key

illustration of the stringency of copyright infringement. The function

of copyrights is the protection of intellectual property of copyright

owners or authors in the physical world being that the responsibility

rest on the copyright owner or author unless in the case of serious

copyright infringement or piracy. The Internet is a digital nexus of

information and to apply current stringent copyright laws to the

Internet is heading toward disaster being that copyrighted works can

be passed along without ever taking a transitional physical form and

the vast magnitude of the Internet makes it near impossible to

enforce copyright infringement. Recognizing the inherent difficulty of

enforcing copyrights against individual Internet users, legal action has

been taken against Internet Service Providers (ISPs) for legal

liability for copyright infringement on those who allow and enable

Internet copyright pirates to exist, namely the ISPs. Those who take

legal action argue that ISPs profit from the pirates? use of the

Internet, and in comparison to an independent publisher or author,

an ISP is in a much better position to police how its subscribers use

the Internet. On the other side of the argument, ISPs claim that they

are passive carriers similar to telecommunications companies and

therefore should be granted some limitation from copyright

infringement liability. There are two forms of copyright infringement

surrounding this issue: direct copyright infringement and secondary

copyright infringement. Secondary copyright infringement is again

subdivided into two categories: contributory and vicarious copyright

infringement.

Secondary copyright infringement is applied in instances in which the

defendant did not personally engage in the violating activity but still

bears some responsibility for the infringement. A defendant is liable

for ?contributory copyright infringement if with knowledge of the

infringing activity, induces, causes or materially contributes to the

infringing conduct of another.?3 A defendant is liable for vicarious

copyright infringement where the defendant has the right and ability

to control or police the infringer?s acts and receives a direct financial

benefit from the infringement.

In the case of Playboy Enterprises Inc. v. Frena , the defendant was

an operator of a computer bulletin board service that, unknown to

the defendant, distributed unauthorized copies of Playboy

Enterprises, Inc.?s (PEI) copyrighted photographs.

For a fee, anyone with an appropriately equipped computer could

log onto the BBS, browse through different BBS directories to look

at the pictures, download the high quality computerized copies of the

photographs, and then store the images onto their home computer.

Frena admitted that the materials were displayed on the BBS and

that he never received consent from Playboy. However, Frena

argued that he did not personally upload any of the infringing

pictures onto the BBS (his subscribers had uploaded the images)

and that he removed the infringing pictures, as soon he was made

aware of the matter. In this case there was no question that Playboy

owned the copyrights on the photographs due to the fact that at trial,

Frena had offered no evidence to rebuff Playboy?s copyright

documentation. The only remaining issue was whether the

defendant?s actions implicated one of the copyright holders exclusive

rights.

The court held that Frena?s actions had infringed Playboy?s

exclusive right to display the works. The court held that there was

no question that Frena supplied a product containing unauthorized

copies of a copyrighted work. As for display rights, the court held

that Frena?s display of the copyrighted materials to his subscribers

constituted a public display even though his subscribers were limited

in number. Frena defended his use as within the scope of the fair use

exception to copyright infringement. His argument, however, fell on

deaf ears. The court found that Frena?s actions were commercial in

nature and of the sort that if they were to become widespread would

result in a substantially adverse impact on the potential market for or

value of the plaintiff?s work and therefore were not within the fair

use exception.

Though the Copyright Act was effective in providing clarification on

this case. The problem in general is the liability of Internet Service

Providers has not been clearly established and the enforcement of

the law remains a problem. In this issue the stringency of traditional

copyright laws are inherently difficult to be applicable to this new

technology because of the scale of the Internet.

The basis of Copyright laws is on the fundamental notion of

protection of intellectual property. This fundamental notion of

protection of intellectual property serves a broader purpose today

then ever before, as it is a moral, social, and economic barrier to

infringe on the owner?s of original works. This fundamental concept

of protection of intellectual property has become distorted to the

point where the fundamental principles of copyrights have been

abandoned by our society. This epidemic of copyright civil litigation

in our legal system becomes that ?when copyrights give control to

one person, it extracts some measure of freedom to imitate from

everyone else?4.

1 Barber, Hoyt and Logan, Robert. Protect Your Intellectual

Property ( Toronto: Productive Publications) p. 5

2 Ibid, p. 12

3 Goldstein, Paul Copyright?s Highway, (New York: HarperCollins

CanadaLtd) p. 145

4Ibid, p. 6

Bibliography

Goldstein, Paul. Copyright?s Highway. New York: Hill and Wing,

1994

Barber, Hoyt, and Logan, Robert. Protect Your Intellectual

Property. Toronto: Productive Publications, 1999

Industry Canada. A guide to Copyrights, Ottawa: Canadian

Cataloguing in Publication Data, 1994

Wright, Amy and McDaniel, Jeff. Recent Developments in

Copyright Law, Texas: Texas Intellectual Property Law Journal, fall

1995, Volume 4, No. 1