Lipton, Weinberger & Husick

  Dear Doc:

I hear that soon, many Internet users will start getting warning notices if they illegally share copyrighted materials. Is this true? What happens if I get, say, 6 of these? How do they know?

Signed,

MovieAddict

Dear Addict:

The “Doc” has been watching this gathering storm for some time now.  The “Copyright Alert System” is not a loud tone played on the radio – it’s a big brother kind of system that involves AT&T, Verizon, Time Warner, Comcast and Cablevision – the “Big 5″ Internet service providers (ISPs). They have been working with the RIAA and MPAA (which collectively help to police music and movie rights) and have worried, since Napster was a little itty bitty nuisance, that their content was getting ripped off on the Internet.

As they have explained what they intend to do, it amounts to watching all of the files that are being shared on the Net, and automatically sending nasty notes to anyone sharing what they believe is copyright-protected content.  As they have said, “Initial alerts are merely educational, letting the user know that unauthorized content sharing was detected on their Internet account.”

There are two additional “alert levels” for repeat sharers: an “acknowledgement” that requires the recipient to fill out a form, and a “mitigation” which means that the user’s connection speed may be reduced unless he watches an informative video about piracy. A notice may be appealed if a user feels that it was sent in error, but filing that appeal costs $35.

You can find out a lot about how this all works by going by clicking here.

Of course, it’s not right to infringe copyrights, and owners of content have every right to protect their property.  It remains to be seen whether their big brother programs are accurate, or also sweep in unrelated files with similar names (maybe I just want to call my home video of my Carnival Cruise “Titanic”), fair uses such as student projects, and the like. Time will tell, but it will cost $35.

–Lawrence A. Husick, Esq.

You may have never heard of the Berne Convention but it’s a very import international treaty governing copyrights.  Here’s a brief overview.  The Berne Convention was first adopted in Berne, Switzerland in 1886 and requires its signatory countries to safeguard the copyrights of a work created in other signatory countries as it would protect those of its own country.

This means that if a work is protected by copyright in one Berne Convention nation it is automatically protected in all other Berne Convention nations. Currently, there are 165 countries that are party to the Convention including the United States, which joined on March 1, 1989. Initially, the United States declined to become a party as it would have required drastic changes in its copyright law particularly with regards to moral rights, removal of the general requirement of registration of copyrighted works and elimination of the mandatory copyright notice.

Article 2 of the Convention, which governs the type of work protected, applies to “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.” The Berne Convention primarily authorizes two groups of protective rights for copyright works: economic rights and moral rights rooted in the copyright work itself.

Under the Berne Convention, all works are protected for at least 50 years after the author’s death with the following exception: (1) for photography, the minimum term is 25 years from the year the photograph was created; and (2) For cinematography, the minimum term is 50 years after first showing, or, if the work has never been shown, 50 years from the creation date.

The Berne Convention may be thought of as the mother of copyright treaties. Articles from the Berne Convention have been incorporated in several other international copyright treaties. For example, Article 9(2) of the Berne Convention, which addresses the exclusive rights of reproduction has been directly implemented and extended into the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the WIPO Copyright Treaty, the EU Copyright Directive and the WIPO Performances and Phonograms Treaty. TRIPS Article 30, covering limitations and exemptions to patent law, is also derived from the Berne Convention.

If you would like to learn more about the convention, a good place to start is Wikipedia.

– Ash Tankha

In late November, David Pogue of the New York Times wrote about a hoaxer who plastered Facebook sites with an unsolicited message that stated:

In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. (as a result of the Berner [sic] Convention).

For commercial use of the above my written consent is needed at all times.

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version.

Pogue was correct in referring to the posting as a “hoax”, noting that the warning or notice makes no difference to the legal status of your illustrations, comics, paintings, crafts, professional photos and videos. But why was he correct?

Under the Berne Convention, an international copyright treaty, authors and creators are not required to post a copyright notice or warning as a prerequisite to enforcing their copyrights. Before adoption of the Berne Convention in 1988, if a copyright owner in the United States failed to place a copyright notice — the ubiquitous © — the owner would lose all his rights in the work should there be an infringement. Click this link to review the official word of the U.S. Copyright Office on this subject. Adoption of the Berne convention brought the United States into sync with the rest of world’s copyright practice.  So, in summary, Copyright is a “self-executing” right that arises as soon as a work is “fixed in a tangible medium.” The rights created by copyright law are no longer predicated upon the author’s posting or marking his work with a copyright notice.

Nonetheless, lawyers sill advise their clients to apply a notice. That’s because it still serves a purpose. In the United States, a copyright owner has the right to obtain “statutory damages” for infringement. These are damages that are set forth in the U.S. Copyright Statute and which are set at different amounts for intentional and unintentional (“innocent”) infringement. If you apply a copyright notice to your work, an infringer cannot claim “innocent infringement.”  That’s because the infringer was on notice that you were the copyright owner. In an infringement action this could mean the difference between receiving as much as $100,000 dollars per intentional infringement versus $200 dollars per innocent infringement.

So, like David Pogue said, you don’t need a fancy notice to enforce your rights (“registration” helps but that’s a subject for another newsletter article). However, using the © symbol along with the date and your name serves a purpose.

© 2012 Lipton Weinberger & Husick

–Adam G. Garson, Esq.