The Music Copyright Law of Today's Industry

Authorized by the U.S. Constitution, the government is granted sole power to provide authors and inventors exclusive rights to their respective lyrics, music, and discoveries. Specifically, music copyright laws are generated to protect an authors' music composition for an undisclosed amount of years. It is the responsibility of the copyright holder to renew such copyright as it only holds for a specific period of time.

An authors' music composition or "intellectual property" should be registered with the copyright office; which authorizes legal claim to the composition. The music copyright laws ensure public notification of copyright. This would suggest that any use of "intellectual property" without the owner's permission is subject to legal repercussions. As a copyright holder, however, you have the option to sell or transfer the composition, yet the original copyright still remains. The law prohibits any distribution of the lyrics or music either for free, for non- profit, or for profit. Furthermore, the law prohibits another party to play a recording of music in public- even if you are the owner of the CD. Finally, it is against the law to make a derivative arrangement or work for use in any public forum. Bottom line, the law states that the music or lyrics cannot be reproduced, be performed publicly, or rearranged by any other party without written consent of the copyright holder. In such cases, the borrower will pay royalties.

It is fairly simple to copyright your compositions. Actually, music copyright laws allow you to copyright single songs or an entire CD of collected works. The process and cost are the same. All you need to do is submit a completed FormSR to the Library of Congress. This form is available at the U.S Copyright Office. Each song on your CD is protected when you send the FormSR, two (2) copies of the CD (or CD single) along with $45 to the Library of Congress. On the FormSR, it is imperative that you claim copyright to both sound recording as well as the underlying composition.

Registering the FormSR with the U.S. copyright office automatically grants you exclusive rights. According to the music copyright laws, copyright registration grants the owner the right to make copies and duplicate the CD. You will also have the right to distribute your works and prepare alternate versions or new arrangements of your works. Copyright registration gives you the right to perform the songs as well as display the product publicly. Most importantly, not only can you prove the composition is yours if it is stolen, you can sue for damages.

As previously mentioned, copyrights eventually expire; therefore it is the copyright holders' responsibility to renew the copyright. There are documented instances where copyright holders have passed away and their families failed to renew the copyright. The copyright laws mandate, however, that the music is protected for 70 years following the death of an author- granted that the music was created after 1978. In the case of public domain music, the music copyright laws state that the "intellectual property" can fall in the hands of public domain if the copyright is not reinstated. A composition that was copyrighted prior to 1923 is currently a part of public domain. Regardless, proof must be obtained from a legitimate source that a composition is public domain. After proof of public domain is obtained, one can arrange, reproduce, perform, record, or publish the music composition.


Sources: I. Videos Gone Viral, II. The Car Junky, III. The Tech Fanatic

Copyright & Music Piracy

The principle that the work one has created belongs to the creator and should be controlled by them is a global concept. This principle is encoded in Copyright law. Copyright Law is the key element upon which intellectual property rights are created and it is from these property rights that musicians, composers, artists and authors derive their income. The U.S. Constitution Art. I Sec. 8 Cl. 8, lays the foundation of Copyright law by providing that “The Congress shall have Power… to Promote the Progress of Science and the useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” As a copyright owner, an author would have certain exclusive rights over his works such as the Reproduction right (the right to make copies), the Adaptation right (the right to adapt the work into new works – such as translation of the work into a different language), the Public Distribution right (right to distribute copies of the work to the public), the Public Performance right (right to perform the work publicly – such as reciting the novel to the public) and the Public Display right (the right to display copies of the work in public). Copyright law thus prohibits the unauthorized duplication, adaptation or distribution of a creative work.

The Copyright statute does not define the tem “musical work.” A musical work is understood to comprise of both the music and the words that accompany it. All genres of music are covered by the term musical work. A musical work is different from a sound recording. The difference lies in the fact that a musician who composes music or writes a song is the author of a musical work, while a producer who records some sounds creates a sound recording.

The term Piracy is used to describe the deliberate infringement of a copyright on a commercial scale. Music Piracy refers to the illegal duplication and distribution of sound recordings. It mainly comprises of four specific forms – (i) bootleg recordings, (ii) pirate recordings, (iii) online piracy and (iv) counterfeit recordings. Bootleg recordings refers to the duplication, recording, and sale of a performance such as a live concert or broadcast without the permission of the artist or the Record Company which may be entitled to control the recording rights of the artist’s performances. Pirate recordings refer to the unauthorized duplications of music from legitimate recordings for commercial gain. The packing and presentation of a pirate copy does not usually resemble a legitimate commercial release. Online piracy refers to the unauthorized transfer of sound recordings from Internet sites. Counterfeit recordings are the unauthorized copying of the sound as well as the artwork, trademark, label and packaging of the original recording. The main aim of counterfeit products is to mislead the consumer into thinking that they are buying the genuine product.

The U.S. Recording Industry is represented by the Recording Industry Association of America (RIAA). With a mission to foster a business and a legal climate to support and promote its members’ creative and financial vitality, the RIAA members create, manufacture and/or distribute approximately 85% of all legitimate recordings produced and sold in the United States. The RIAA is working to protect the intellectual property rights and First Amendment Rights of artists, conduct consumer, industry and technical research; and monitor and review state and federal laws, regulations and policies. One of the primary objectives of the RIAA is educating people about music piracy. The RIAA states in simple words that going online and downloading music without permission is as good as walking into a store and shoplifting. A report published by the Institute of Policy Innovation provides that global music piracy causes $12.5 billion of economic losses every year, 71,060 U.S. jobs lost, a loss of $2.7 billion in workers' earnings, and a loss of $422 million in tax revenues, $291 million in personal income tax and $131 million in lost corporate income and production taxes. Considering the amount of loss that the music industry faces mainly because of piracy, one might wonder whether there is a provision to get access to one’s favorite songs without being held liable for piracy. The answer is “YES!” Legal downloading of music is extremely easy and cost effective. The RIAA states that record companies have licensed hundreds of digital partners offering download and subscription services, cable and satellite radio services, Internet radio webcasting, legitimate peer-to-peer or P2P services, social networking services, video-on demand, podcasts, CD kiosks and digital jukeboxes, mobile products such as ringbacks, ringtunes, wallpapers, audio and video downloads. The International Federation of the Phonographic Industry or the IFPI which represents the recording industry worldwide states that there are more than 10 million licensed tracks available on more than 400 services worldwide. The IFPI represents 1400 members across 72 countries and has affiliated industry representations in about 44 countries. The IFPI reports that about 40 billion files were illegally file-shared in the year 2008 giving a piracy rate of about 95%.

What happens when a composer or owner of a sound recording finds out that his work is being reproduced digitally without his permission?
The Digital Millennium Copyright Act of 1998 or the DMCA as it is popularly known provides the answer to this question which probably haunts most of the artists today. The Internet, which is providing a gateway of access to almost anything that seems to be created, is posing a threat to the artists who find their works being “uploaded” or “downloaded” without their permission. This invariably infringes the exclusive rights provided by the Copyright Act which was enacted to protect the interests of the artists. The DMCA has enacted § 512 (c) which is more popularly known as the Safe Harbor Provision which provides a method by which an online service provider can limit his liability for vicarious infringement for illegal infringing copyrighted works stored on his system by the website’s subscribers. §512 (c) takes birth from the district court decision in Religious Technology Center v. Netcom On-Line Communication Services, 907 F.Supp. 1361 (N.D. Cal. 1995), which refused to hold an ISP liable for the infringing activities of its users because the ISP’s role consisted entirely of serving as a passive conduit for the transmissions of its users, without in any way inducing, influencing, encouraging or selecting among their infringing activities. For an online service provider to be eligible for protection under the Safe Harbor provision, he can appoint an agent with the Copyright Office. If an owner believes that his copyright is being infringed, he can send a notice to the online service provider. Once such a notice is received, the online service provider must either remove and/or disable access to the allegedly infringing material. After receiving the online service provider’s notice, the subscriber can send a counter notification. If the subscriber fails to respond to such a notice, the infringing content remains disabled or removed. If the subscriber provides a notification, this will be conveyed to the copyright owner. Litigation is initiated by the copyright owner against the alleged infringer and a notice to this effect should be sent to the online service provider. If no such action is taken by the copyright owner after receiving the counter notice, the online service provider must repost the disable or removed material within 2 weeks of its receipt of the counter notification from the subscriber. If litigation is initiated by the copyright owner, the online service provider must remove or disable the infringing material until it is resolved by the court.

Whom does the law hold responsible?
According to 17 U.S.C §501(a) ( c ) of the Copyright Act, copyright infringement occurs when a party engages in importing copies or phonorecords into the United States in violation of §602. Secondary Liability for copyright infringement is also enforced although it is not expressly recognized in the Statute. Secondary Liability occurs in the following two forms – Contributory and Vicarious Liability. Under Secondary Liability, the defendant can be found liable for copyright infringement even though he did not personally engage in the infringing activity. However, to enforce an action under secondary liability, an underlying act of direct infringement must occur. Contributory infringement is designed to target intentional contributions to infringement. Two key elements that pave the way for contributory infringement are (a) knowledge of the infringement and (b) continued substantial and material provision of means. The concept of contributory liability for copyright infringement was laid down in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). The court expressly held that “One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” Id. A video rental store which permitted its customers to view its videos in the store was held to be contributorily liable for those infringing performances. Columbia Pictures Indus., Inc. v. Aveco, Inc., 88 F.2d 59 (3d Cir. 1986).

Vicarious liability is based on the principle of respondeat superior – where employers are held vicariously liable for infringing acts performed by their employees who are acting within the scope of their employment. Vicarious infringement is designed to target intentional contributions to infringement provision of means. Vicarious infringement requires two key factors – (a) ability and right to control infringing conduct and (b) receipt of financial benefit from the conduct. The court in Fonavisa, Inc. v. Cherry Auction, Inc., 76 F. 3d 259 (9th Cir. 1996), held that a flea market operator was vicariously liable for copyright infringement because he had knowledge of the fact that vendors were selling counterfeit recordings and supplied them with space, customers, advertising and support services in return for a fee. However, courts have refused to impose vicarious liability on a landlord/tenant relationship. The main reason cited for such a refusal is that the landlord lacks the right and the ability to supervise the tenant’s infringing activities.

How does one identify whether a CD is genuine or a pirated copy?
There are certain features of a CD that clearly indicate that it is a pirated copy. One should keep a lookout for any or all of the following points to determine whether a CD is genuine or not –

1. How much are you paying? – Pirated CDs are generally sold at a price much lower than the actual retail value.
2. Where are you buying it from? – CDs bought at a flea market or a swap meet or sold on the street are more likely to be infringing copies of the original
3. What are the features of the CD? – Pirated CDs are sometimes enclosed in a poor quality cellophane envelope as opposed to the upscale factory quality of shrink wrap. They are recorded on Recordable Compact Disks, or CD-Rs which are characterized by bluish or a greenish tint. You may also find misspelled words on the cover of the CD. Usually, pirated CDs contain the “top 10 hits” or “mix” or “DJ” recordings. The bar code too may be missing on the package.

Stop piracy in your own way by refusing to purchase pirated CDs.



Sources: I. Videos Gone Viral, II. The Car Junky, III. The Tech Fanatic

Trademark Evaluation

After you have decided upon what your trademark should look like, you should immediately undertake a trademark evaluation to try and decipher whether or not the trademark is available. If it is, you should immediately begin the process of obtaining the intellectual property rights for the relevant trademark. This will help to insure that your business or firm does not run into legal complications in the future.

Lawfully is a Sydney based firm that provides fast, efficient and professional services for clients at realistic fees in relation to trademarks, and the business aspects of patents and copyright. This firm provides reliable services to organisations ranging in size from small to large, in Australia and overseas. It identifies its services by the trade mark 'Lawfully' as well as trading under that name as a business name. Lawfully is a firm which delivers high quality services in the following four areas:

• Trade Mark evaluation, searching and registration.
• Copyright Registration in the USA for the original works of Australian writers, composers and software authors.
• Copyright Management. This service assists the Australian promoter in pulling together the diverse rights of actors and performers so that the promoter owns and can exploit copyrights in the film and/or live performance.
• Copyright and Patent management to assist authors, artists and inventors in Australia to exploit their original work within Australia.

Sources: I. Videos Gone Viral, II. The Car Junky, III. The Tech Fanatic

Copyright Lawyer

Copyright law protects the intellectual property of creators such as artists, authors, and musicians. While copyright law is supposed to protect creators by preventing other people from using their intellectual property, there are many gray areas in the details that have to be decided in court. Copyright laws can also differ from area to area. This makes it important to find a copyright lawyer that understands local, national, and international precedent so you can protect your substantive works from infringement.

Are Copyright Lawyers Necessary?

Many courts have upheld copyrights of finished and incomplete works as long as an individual or corporation can prove that they created the work before someone else. Some people accomplish this without hiring a copyright lawyer. They might, for instance, send a copy of a play to themselves in the mail so that it has an official date stamped on it. Or they might have a notary public sign and date a copy of the work so courts will know when the author created it.

This works in some cases, but those who are serious about protecting their intellectual property should consider hiring copyright lawyers. Copyright law is difficult for many laymen to understand. Even the U.S. court system finds it difficult to rule on some cases.

Finding Copyright Lawyers with Experience

Since there are so many gray areas in copyright law, it is best to hire a copyright lawyer who has significant experience in the field. Most of the cases are brought to civil court, where a copyright lawyer might have the chance to argue your case in front of a judge or committee. In this type of situation, experience is a lawyer's best asset.

You can determine how much experience a copyright lawyer has by asking her or him how long they have been practicing intellectual property law. You should also ask the copyright lawyers how many of their cases they win so you will know how successful they are.

Picking a Copyright Lawyer with Experience in your Field

Consider spending some time looking for a copyright lawyer that has significant experience in your field. If you are a musician, then you should look for a copyright lawyer that has represented music companies and musicians. If you have written a book, then you should seek the services of a copyright lawyer that knows the ins and outs of copyright laws that apply to books. Finding a specialist can only improve your chances of protecting your rights.

Choosing a Copyright Lawyer with Good References

After you have found several copyright lawyers with years of experience, a concentration in law that pertains to your field, and a good track record, you can make a short list to choose from. Contact the copyright lawyers on your short list and ask them to give you references. These references will make it easy for you to talk to their other clients. You can often get the best information from other professionals who have used the copyright lawyer's services. A good reference from a professional music producer, for instance, should typically have more influence on your decision than a part-time musician with self-published material.

Sources: I. Videos Gone Viral, II. The Car Junky, III. The Tech Fanatic

Common Law Capers

The firm Lawfully and its principal Gibson Owen are well able to advise you on any new trademarks to ensure that a search is carried out to minimise disappointment, subsequent rejection and disputes. Where a client has built up a reputation and goodwill in a trademark or trade name without registration then he must at some time address the question of registration.

Up until registration, his trademark would be called a common law mark and he runs the risk of finding after many years of business that there is a prior registration of a similar name in a similar class of goods. He may find that there is a similar name which has been in the market place unregistered but with a commencement date prior to that of the client's first usage.

Upon addressing the matter of registration the client is confronted by having to carry out searches to establish what identical, similar or deceptively similar marks are on the Trademark Register or in the market place with a priority date well before the client's first stated usage.

Common law rights are those rights you can enforce by an action without primary reliance on statute law.

The Designs Act, Patents Act and Trademarks Act all give you statutory rights as an incidence of registration of your trademark or invention. Valuable enforcement rights will arise as an incidence of such registration.

Having developed a reputation, goodwill and a significant capital value attaching to the unregistered trademark, the owner must then contemplate the fact that there may be prior registrations that are similar or deceptively similar or where another business, perhaps an opposition business, has been using their mark to develop goodwill and reputation predating that of the client's first usage.

Where a contest develops over who has the prior right to the name, there is a real prospect that the client would not only lose the contest but lose significant capital such as the removal of its name, the loss of its profits for the period of conflict and the obligation to start again with a new name, which in turn can amount to losses of immense amounts of capital.

The ownership of a common law trade name is an excellent example of playing Russian Roulette with the company's capital.

Where a company proceeds to adopt and assume a trademark that is unregistered there is a very real likelihood that it will be tempted to describe attributes of its product or service in that name. An excellent example would be the name Bankstown Smash Repairs. It is not appropriate to identify a geographic region in a name and it is not appropriate to identify the product or service in the name.

Very often the names that are chosen are names that are generic or inappropriate and should remain available to all of those who compete in that industry. An example of such words is 'smash repairs'.

It is always best to invent a name which has nothing to do with the product or its attributes. It is usually too late to warn a client on these factors when they have developed goodwill and reputation at common law.

Where you have given the right of exclusive use of your trademark to a licensee then usually you will have given that licensee the right to protect the intellectual property against invaders and trespassers.

It is possible that the exclusive licensee is not interested in protecting the reputation attaching to the trademark property, but as the registered proprietor you may feel you must protect the integrity of your trademark and you can do so provided you have reserved those enforcement rights during the preparation of that licence. The need to take action can arise during the course of the license or after its termination.

There could be many commercial reasons why a licensee does not want to spend funds on fighting invaders and trespassers and it may fall to you to defend the integrity and reputation of the trademark.

If you have failed to draft the license correctly in not reserving to yourself the right to supervise the quality of the licensee's products with regularity then you will have difficulty in protecting that integrity and reputation.

Not only must you reserve to yourself the right to supervise quality but also you must exercise that right and not appear to abandon it by failure to supervise for lengthy periods or failure to supervise regularly.

In addition a licensee may feel that when the exclusive license lapses he has adequate momentum in his product and reputation not to bother with a renewal of the exclusive license.

Where there has been a failure by the Licensee to renew the license, the registered proprietor must ensure that the reputation and goodwill attaching to a trademark have expressly re-vested in him as the registered proprietor.

Whilst these requirements seem to be only incidental to the main business of granting rights to a licensee and receiving royalties from him it is obvious that the mark could be seriously imperiled unless the above two factors are treated with detailed attention in the license document.

Continuing use and development of reputation and goodwill in an unregistrable mark can eventually allow its registration. The unregistrable mark can become known in the eyes of the market or the public as one that distinguishes the owner's goods and/or services from those of his competitors. Upon such proof being established, which carries a very heavy burden to discharge, such an offending mark can be applied for and may be approved for registration.

It is far better to take advice before commencement of use of a mark so as to ensure it does not offend against other marks and therefore attract lawsuits and opposition to registration. It is possible to offend against another mark registered or unregistered by direct conflict or by using a mark that is deceptively similar to another mark.

Any interloper or trespasser will be easily put to heel if he is offending against a registered mark in the same or similar classification for goods.

Sources: I. Videos Gone Viral, II. The Car Junky, III. The Tech Fanatic

Terminator Lawsuit

While most of the people see only one side of the movies there is actually lot of that can be found if you look deeper. A recent lawsuit revolved around the popular Terminator franchise. Terminator two was the movie that became Arnold Schwarzenegger’s most successful role up to date and gave him immense popularity that finally helped him to become the governor of California. Also this move launched a huge and profitable franchise. The gross revenues of the four terminator movies right now are over $1.600 million dollars. The last movie Terminator Salvation which had hit the cinemas on 21 of May in the United States and in the beginning of June worldwide already covered its $200 million dollar budget in the first weeks and now the studio is planning two more sequels. Of course it is not the most economically successful franchise today, but the cult following of the earlier movies and the huge interest for the last movie - Terminator Salvation, shows that it can still bring profit.

In March 2009 Moritz Borman, one of the film's producers, has sued two other producers Derek Anderson and Victor Kubicek and their company Halcyon Co. for alleging fraud, breach of contract and refusal in payment of producing fees. Borman was the one who had arranged the transfer of the Terminator Franchise rights from previous producers Mario Kassar and Andrew Vajna to Anderson and Kubicek, for an undisclosed sum as that company was closing down in May 2007. Borman also helped to secure initial financing for the fourth Terminator Movie, through investment fund Pacificor. His deal on that case called for approval rights on the picture and all creative decisions, with the additional $5 million producing fee and a significant backend compensation. In July 2008 Anderson and Kubicek basically took over the production as principal photography was being completed and refused to pay Borman his $2.5 million balance of his producing fee. After it came to light that Anderson and Kubicek did not have the means to finance the picture as a result Borman defaulted on numerous loans and owed over $1 million to creditors on the picture. The filled suit listed eight causes of action and seek more than $160 million in damages. Borman also stated that he was unaware of the pair's "shady" background and that the duo was already sued previously for tricking other motion picture investors. The two shady producers of the fourth Terminator gave no comments at first, but after a small period of time went into negotiation with Moritz Borman and one month later the lawsuit was dismissed and case was settled with an "amicable" resolution between the sides. The producers stated that everything was made clear and they continued the work on then upcoming Terminator Salvation. After the lawsuit surrounding Salvation was settled, Metro-Goldwyn-Mayer, the main financing company, has also gained a 30-day right of first refusal (a contractual right that gives its holder the option to enter a business transaction with the owner of something, according to specified terms, before the owner is entitled to enter into that transaction with a third party) to finance and distribute the fifth film. So basically this case had huge influence on the whole franchise.

Sources: I. Videos Gone Viral, II. The Car Junky, III. The Tech Fanatic

Copyright Management

Copyright management involves insuring that your copyright is continually updated and reviewed in order to escape legal loopholes that may permit certain individuals or businesses form profiting at your expense. Copyright management also involves monitoring all the avenues in which your intellectual property could potentially be exploited and insuring that it does not happen. This necessitates the need of a capable trademark agent. In a situation where copyright infringement is occurring, it is necessary to take swift action and bring legal proceedings against the individual or the organisation in question.

Lawfully is a Sydney based firm that provides fast, efficient and professional services for clients at realistic fees in relation to trademarks, and the business aspects of patents and copyright. This firm provides reliable services to organisations ranging in size from small to large, in Australia and overseas. It identifies its services by the trade mark 'Lawfully' as well as trading under that name as a business name. Lawfully is a firm which delivers high quality services in the following four areas:

• Trade Mark evaluation, searching and registration.
• Copyright Registration in the USA for the original works of Australian writers, composers and software authors.
• Copyright Management. This service assists the Australian promoter in pulling together the diverse rights of actors and performers so that the promoter owns and can exploit copyrights in the film and/or live performance.
• Copyright and Patent management to assist authors, artists and inventors in Australia to exploit their original work within Australia.

Sources: I. Videos Gone Viral, II. The Car Junky, III. The Tech Fanatic

Copyright and Music Piracy

The principle that the work one has created belongs to the creator and should be controlled by them is a global concept. This principle is encoded in Copyright law. Copyright Law is the key element upon which intellectual property rights are created and it is from these property rights that musicians, composers, artists and authors derive their income. The U.S. Constitution Art. I Sec. 8 Cl. 8, lays the foundation of Copyright law by providing that “The Congress shall have Power… to Promote the Progress of Science and the useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” As a copyright owner, an author would have certain exclusive rights over his works such as the Reproduction right (the right to make copies), the Adaptation right (the right to adapt the work into new works – such as translation of the work into a different language), the Public Distribution right (right to distribute copies of the work to the public), the Public Performance right (right to perform the work publicly – such as reciting the novel to the public) and the Public Display right (the right to display copies of the work in public). Copyright law thus prohibits the unauthorized duplication, adaptation or distribution of a creative work.

The Copyright statute does not define the tem “musical work.” A musical work is understood to comprise of both the music and the words that accompany it. All genres of music are covered by the term musical work. A musical work is different from a sound recording. The difference lies in the fact that a musician who composes music or writes a song is the author of a musical work, while a producer who records some sounds creates a sound recording.

The term Piracy is used to describe the deliberate infringement of a copyright on a commercial scale. Music Piracy refers to the illegal duplication and distribution of sound recordings. It mainly comprises of four specific forms – (i) bootleg recordings, (ii) pirate recordings, (iii) online piracy and (iv) counterfeit recordings. Bootleg recordings refers to the duplication, recording, and sale of a performance such as a live concert or broadcast without the permission of the artist or the Record Company which may be entitled to control the recording rights of the artist’s performances. Pirate recordings refer to the unauthorized duplications of music from legitimate recordings for commercial gain. The packing and presentation of a pirate copy does not usually resemble a legitimate commercial release. Online piracy refers to the unauthorized transfer of sound recordings from Internet sites. Counterfeit recordings are the unauthorized copying of the sound as well as the artwork, trademark, label and packaging of the original recording. The main aim of counterfeit products is to mislead the consumer into thinking that they are buying the genuine product.

The U.S. Recording Industry is represented by the Recording Industry Association of America (RIAA). With a mission to foster a business and a legal climate to support and promote its members’ creative and financial vitality, the RIAA members create, manufacture and/or distribute approximately 85% of all legitimate recordings produced and sold in the United States. The RIAA is working to protect the intellectual property rights and First Amendment Rights of artists, conduct consumer, industry and technical research; and monitor and review state and federal laws, regulations and policies. One of the primary objectives of the RIAA is educating people about music piracy. The RIAA states in simple words that going online and downloading music without permission is as good as walking into a store and shoplifting. A report published by the Institute of Policy Innovation provides that global music piracy causes $12.5 billion of economic losses every year, 71,060 U.S. jobs lost, a loss of $2.7 billion in workers' earnings, and a loss of $422 million in tax revenues, $291 million in personal income tax and $131 million in lost corporate income and production taxes. Considering the amount of loss that the music industry faces mainly because of piracy, one might wonder whether there is a provision to get access to one’s favorite songs without being held liable for piracy. The answer is “YES!” Legal downloading of music is extremely easy and cost effective. The RIAA states that record companies have licensed hundreds of digital partners offering download and subscription services, cable and satellite radio services, Internet radio webcasting, legitimate peer-to-peer or P2P services, social networking services, video-on demand, podcasts, CD kiosks and digital jukeboxes, mobile products such as ringbacks, ringtunes, wallpapers, audio and video downloads. The International Federation of the Phonographic Industry or the IFPI which represents the recording industry worldwide states that there are more than 10 million licensed tracks available on more than 400 services worldwide. The IFPI represents 1400 members across 72 countries and has affiliated industry representations in about 44 countries. The IFPI reports that about 40 billion files were illegally file-shared in the year 2008 giving a piracy rate of about 95%.


What happens when a composer or owner of a sound recording finds out that his work is being reproduced digitally without his permission?
The Digital Millennium Copyright Act of 1998 or the DMCA as it is popularly known provides the answer to this question which probably haunts most of the artists today. The Internet, which is providing a gateway of access to almost anything that seems to be created, is posing a threat to the artists who find their works being “uploaded” or “downloaded” without their permission. This invariably infringes the exclusive rights provided by the Copyright Act which was enacted to protect the interests of the artists. The DMCA has enacted § 512 (c) which is more popularly known as the Safe Harbor Provision which provides a method by which an online service provider can limit his liability for vicarious infringement for illegal infringing copyrighted works stored on his system by the website’s subscribers. §512 (c) takes birth from the district court decision in Religious Technology Center v. Netcom On-Line Communication Services, 907 F.Supp. 1361 (N.D. Cal. 1995), which refused to hold an ISP liable for the infringing activities of its users because the ISP’s role consisted entirely of serving as a passive conduit for the transmissions of its users, without in any way inducing, influencing, encouraging or selecting among their infringing activities. For an online service provider to be eligible for protection under the Safe Harbor provision, he can appoint an agent with the Copyright Office. If an owner believes that his copyright is being infringed, he can send a notice to the online service provider. Once such a notice is received, the online service provider must either remove and/or disable access to the allegedly infringing material. After receiving the online service provider’s notice, the subscriber can send a counter notification. If the subscriber fails to respond to such a notice, the infringing content remains disabled or removed. If the subscriber provides a notification, this will be conveyed to the copyright owner. Litigation is initiated by the copyright owner against the alleged infringer and a notice to this effect should be sent to the online service provider. If no such action is taken by the copyright owner after receiving the counter notice, the online service provider must repost the disable or removed material within 2 weeks of its receipt of the counter notification from the subscriber. If litigation is initiated by the copyright owner, the online service provider must remove or disable the infringing material until it is resolved by the court.


Whom does the law hold responsible?
According to 17 U.S.C §501(a) ( c ) of the Copyright Act, copyright infringement occurs when a party engages in importing copies or phonorecords into the United States in violation of §602. Secondary Liability for copyright infringement is also enforced although it is not expressly recognized in the Statute. Secondary Liability occurs in the following two forms – Contributory and Vicarious Liability. Under Secondary Liability, the defendant can be found liable for copyright infringement even though he did not personally engage in the infringing activity. However, to enforce an action under secondary liability, an underlying act of direct infringement must occur. Contributory infringement is designed to target intentional contributions to infringement. Two key elements that pave the way for contributory infringement are (a) knowledge of the infringement and (b) continued substantial and material provision of means. The concept of contributory liability for copyright infringement was laid down in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). The court expressly held that “One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” Id. A video rental store which permitted its customers to view its videos in the store was held to be contributorily liable for those infringing performances. Columbia Pictures Indus., Inc. v. Aveco, Inc., 88 F.2d 59 (3d Cir. 1986).
Vicarious liability is based on the principle of respondeat superior – where employers are held vicariously liable for infringing acts performed by their employees who are acting within the scope of their employment. Vicarious infringement is designed to target intentional contributions to infringement provision of means. Vicarious infringement requires two key factors – (a) ability and right to control infringing conduct and (b) receipt of financial benefit from the conduct. The court in Fonavisa, Inc. v. Cherry Auction, Inc., 76 F. 3d 259 (9th Cir. 1996), held that a flea market operator was vicariously liable for copyright infringement because he had knowledge of the fact that vendors were selling counterfeit recordings and supplied them with space, customers, advertising and support services in return for a fee. However, courts have refused to impose vicarious liability on a landlord/tenant relationship. The main reason cited for such a refusal is that the landlord lacks the right and the ability to supervise the tenant’s infringing activities.


How does one identify whether a CD is genuine or a pirated copy?
There are certain features of a CD that clearly indicate that it is a pirated copy. One should keep a lookout for any or all of the following points to determine whether a CD is genuine or not –

1. How much are you paying? – Pirated CDs are generally sold at a price much lower than the actual retail value.
2. Where are you buying it from? – CDs bought at a flea market or a swap meet or sold on the street are more likely to be infringing copies of the original
3. What are the features of the CD? – Pirated CDs are sometimes enclosed in a poor quality cellophane envelope as opposed to the upscale factory quality of shrink wrap. They are recorded on Recordable Compact Disks, or CD-Rs which are characterized by bluish or a greenish tint. You may also find misspelled words on the cover of the CD. Usually, pirated CDs contain the “top 10 hits” or “mix” or “DJ” recordings. The bar code too may be missing on the package.

Stop piracy in your own way by refusing to purchase pirated CDs.




Sources: I. Videos Gone Viral, II. The Car Junky, III. The Tech Fanatic

Avoiding Copyright Infringement

There are many instances where you or your company could be engaged in copyright infringement without even knowing it. For example, if one of your employees uses a company computer to host, share, or download pirated materials, you are in danger of copyright litigation being brought against you. The answer to this problem is to ensure that you have a clear acceptable use policy laid out for your employees and ensure that it is followed and implemented as strictly as possible. Even a single individual who engages in these nefarious activities can put an entire organisation at risk. This is exactly why the first step to avoiding copyright infringement is to educate yourself about all of the relevant copyright lawsand regulations.

The New Zealand Federation Against Copyright Theft, or NZFACT, is an organisation that is committed to ensuring and protecting the rights of the New Zealand film and television industry, retailers, and movie fans. Copyright infringement has a wide number of manifestations and is something that applies to a vast number of scenarios. NZFACT has several members which include, but are not limited to:

Village Roadshow Limited
Walt Disney Studios Motion Pictures, New Zealand
Paramount Pictures Corporation
Sony Pictures Releasing International Corporation
Twentieth Century Fox International Corporation
Universal International Films, Inc
Warner Bros. Pictures International, a division of Warner Bros. Pictures Inc.

NZFACT works with enforcement agencies and government officials to ensure the copyright infringement and piracy of any kind do not take place in New Zealand. Tony Eaton, a former police prosecutor in the New Zealand Courts, is the Executive Director of NZFACT.

Sources: I. Videos Gone Viral, II. The Car Junky, III. The Tech Fanatic

The Music Copyright Law of Today's Industry

Authorized by the U.S. Constitution, the government is granted sole power to provide authors and inventors exclusive rights to their respective lyrics, music, and discoveries. Specifically, music copyright laws are generated to protect an authors' music composition for an undisclosed amount of years. It is the responsibility of the copyright holder to renew such copyright as it only holds for a specific period of time.

An authors' music composition or "intellectual property" should be registered with the copyright office; which authorizes legal claim to the composition. The music copyright laws ensure public notification of copyright. This would suggest that any use of "intellectual property" without the owner's permission is subject to legal repercussions. As a copyright holder, however, you have the option to sell or transfer the composition, yet the original copyright still remains. The law prohibits any distribution of the lyrics or music either for free, for non- profit, or for profit. Furthermore, the law prohibits another party to play a recording of music in public- even if you are the owner of the CD. Finally, it is against the law to make a derivative arrangement or work for use in any public forum. Bottom line, the law states that the music or lyrics cannot be reproduced, be performed publicly, or rearranged by any other party without written consent of the copyright holder. In such cases, the borrower will pay royalties.

It is fairly simple to copyright your compositions. Actually, music copyright laws allow you to copyright single songs or an entire CD of collected works. The process and cost are the same. All you need to do is submit a completed FormSR to the Library of Congress. This form is available at the U.S Copyright Office. Each song on your CD is protected when you send the FormSR, two (2) copies of the CD (or CD single) along with $45 to the Library of Congress. On the FormSR, it is imperative that you claim copyright to both sound recording as well as the underlying composition.

Registering the FormSR with the U.S. copyright office automatically grants you exclusive rights. According to the music copyright laws, copyright registration grants the owner the right to make copies and duplicate the CD. You will also have the right to distribute your works and prepare alternate versions or new arrangements of your works. Copyright registration gives you the right to perform the songs as well as display the product publicly. Most importantly, not only can you prove the composition is yours if it is stolen, you can sue for damages.

As previously mentioned, copyrights eventually expire; therefore it is the copyright holders' responsibility to renew the copyright. There are documented instances where copyright holders have passed away and their families failed to renew the copyright. The copyright laws mandate, however, that the music is protected for 70 years following the death of an author- granted that the music was created after 1978. In the case of public domain music, the music copyright laws state that the "intellectual property" can fall in the hands of public domain if the copyright is not reinstated. A composition that was copyrighted prior to 1923 is currently a part of public domain. Regardless, proof must be obtained from a legitimate source that a composition is public domain. After proof of public domain is obtained, one can arrange, reproduce, perform, record, or publish the music composition.


Sources: I. Videos Gone Viral, II. The Car Junky, III. The Tech Fanatic