# Presentation: 515922

## Copyright in the Digital Age

- Ben Hardman
- Attorney / Advisor
- Office of Intellectual Property Policy & Enforcement
- USPTO

## How has the environment changed?

**New Technology**
- Digitization
- Serial copying – Perfect copy form a copy
- Metadata – IDs the artist and title
- Internet
- Instant access to 100s of millions
- Broadband connection
- Larger files at faster speeds
- Broadband penetration continues to grow

## How has the environment changed?

- Copy Equipment
- Cheaper and smaller
- Moved into the home
**Individual users can affect the market**
- Enforcement has traditionally focused on the distributor
- The user has become a distributor
- Peer-to-Peer networks (P2P)
- Copyright law is complex
- Need for innovative solutions

## How has the environment changed?

**New Business Models**
- Creative licensing
- Video games – user generated content
- Limited copies of music downloads
- Streaming
- What rights are implicated?
- Public Performance
- Reproduction – buffer copy

## How has the environment changed?

- On-demand
- Movies
- Interactive radio
- Product vs. Service
- Cable TV
- Pandora
- Distribution costs are low
- Marketing, Packaging
- Global Distribution
- Production costs even higher

## Legal Implications?

**Reproduction**
- Any Sound or Visual recording shall be considered a reproduction (Berne Art 9(3))
- WCT Art 1 and WPPT Art 7 (Agreed statement)
- Reproduction Right and Exceptions fully apply in the digital environment, and
- Storage in digital form in an electronic medium constitutes a reproduction

## Legal Implications?

- Examples of economic value entirely in the RAM copy
- Load licensed copy on LAN server, then unlicensed users use RAM copies
- Downloads of software on demand that are used immediately then discarded
- Implied license
- Thumbnails
- Considered fair use

## Legal Implications?

**Secondary liability**
- Contributory Liability
- Knows or has reason to know of infringement, and
- Induces, causes, or materially contributes to the infringing conduct of another
- Vicarious Liability
- Right and ability to control, and
- Direct financial interest

## Legal Implications?

**Limitation on ISP liability**
- Notice and takedown
- Copyright owner can send notification
- ISP must “respond expeditiously” to take down
- User can send a counter-notification
- ISP must put back up between 10 and 14 days later, unless first person files lawsuit in court.

## WIPO Internet Treaties

**Overview**
- The WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).
- These treaties were negotiated in 1996 and entered into force in 2002.
- Contracting Parties: WCT (64); WPPT (62)
- The U.S. implements them through the Digital Millennium Copyright Act (DMCA) and other laws.

## WIPO Internet Treaties

**Making Available****	**
**Technological Protection Measures (TPMs)**
- Any technology, device, or component that...is designed to prevent or restrict acts...which are not authorized by the owner of rights or by the law.
- Access Controls
- Copy Controls

## WIPO Internet Treaties

- Obligation to provide adequate legal protection and effective legal remedies against circumvention of TPMs.
- Adequate legal protection
- Prohibit the act of circumvention.
- Prohibit the devices and services that are used to facilitate circumvention.
- Limit exceptions.
- Effective legal remedies
- Civil remedies
- Criminal penalties

## WIPO Internet Treaties

**Rights Management Information (RMI)**
- What is RMI?
- Any information that identifies the work, the author, or owner of any right in the work; or,
- information about the terms or conditions of use...
- when it is attached to the work or appears in connection with the communication to the public of the work.

## WIPO Internet Treaties

- Parties must provide “adequate and effective legal remedies” against
- knowingly removing or altering electronic RMI, or
- disseminating works that have had RMI removed or altered
- Must have knowledge or reasonable grounds to know that the act will induce, enable, facilitate, or conceal an infringement.

## Conclusion

- The Internet/technology/the digital environment offer incredible opportunities for creative and knowledge-based assets.
- They also present formidable challenges and an ever changing environment.
- The goal is to provide a legal system that allows the benefits of the digital era while addressing the challenges and changing technological environment.

## THANK YOU

- Ben Hardman
- Attorney / Advisor
- Office of Intellectual Property Policy & Enforcement
- USPTO