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Intellectual Property and the Internet/Copyright infringement

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Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.

Piracy

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The practice of labeling the infringement of exclusive rights in creative works as "piracy" predates statutory copyright law. Prior to the Statute of Anne 1709, the Stationers' Company of London in 1557 received a Royal Charte giving the company a monopoly on publication and tasking it with enforcing the charter. Those who violated the charter were labeled pirates as early as 1603.[1] After the establishment of copyright law with the 1709 Statute of Anne in Britain, the term "piracy" has been used to refer to the unauthorized manufacturing and selling of works in copyright.[2] Article 12 of the 1886 Berne Convention for the Protection of Literary and Artistic Works uses the term "piracy" in relation to copyright infringement, stating "Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection."[3] Article 61 of the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires criminal procedures and penalties in cases of "wilful trademark counterfeiting or copyright piracy on a commercial scale."[4] Piracy traditionally refers to acts intentionally committed for financial gain, though more recently, copyright holders have described online copyright infringement, particularly in relation to peer-to-peer file sharing networks, as "piracy."[2]

Theft

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File:Piracy is a crime - Unskippable Anti-Piracy track.png
An unskippable anti-piracy film included on some movie DVDs equates copyright infringement with theft.

Copyright holders frequently refer to copyright infringement as "theft." In copyright law, infringement does not refer to actual theft, but an instance where a person exercises one of the exclusive rights of the copyright holder without authorization.[5] Courts have distinguished between copyright infringement and theft, holding, for instance, in the United States Supreme Court case Dowling v. United States (1985) that bootleg phonorecords did not constitute stolen property and that "interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright... 'an infringer of the copyright.'" In the case of copyright infringement the province guaranteed to the copyright holder by copyright law is invaded, i.e. exclusive rights, but no control, physical or otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of using the copyrighted work or exercising the exclusive rights held.[6]

Enforcement responsibility

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The enforcement of copyright is the responsibility of the copyright holder.[7] Article 50 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) requires that signatory countries enable courts to remedy copyright infringement with injunctions and the destruction of infringing products, and award damages.[4] Copyright holders have started to demand through the Anti-Counterfeiting Trade Agreement (ACTA) that states act to defend copyright holders' rights and enforce copyright law through active policing of copyright infringement[8]. It has also been demanded that states provide criminal sanctions for all types of copyright infringement and pursue copyright infringement through administrative procedures, rather than the judicial due process required by TRIPs.[7]

Criminal liability

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Article 61 of TRIPs requires that signatory countries establish criminal procedures and penalties in cases of "willful trademark counterfeiting or copyright piracy on a commercial scale".[4] Copyright holders have demanded that states provide criminal sanctions for all types of copyright infringement.[7]

In India Under the Copyright Act, 1957 Section 63 it has been provided that "Any person who knowingly infringes or abets the infringement of the copyright in a work shall be punishable with imprisonment which may extend to one year, or with fine, or with both."

Online intermediary liability

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Whether or not internet intermediaries have liability for copyright infringement by users, and without the intermediaries' authorisation, has been subject to debate and court cases in a number of countries.[9] Liability of online intermediaries has been one of the earliest legal issues surrounding the internet. Early court cases focused on the liability of internet service providers (ISPs) for hosting, transmitting or publishing content that could be actioned under civil or criminal law, such as libel, defamation, or pornography.[10] As different content was considered in different legal systems and in the absence of common definitions for "ISPs," "bulletin boards" or "online publishers," early law on online intermediaries' liability is widely different from country to country. The first laws on online intermediaries' liability were passed from the mid 1990s onwards and the debate has shifted away from questions about whether internet intermediaries are liable for different content, such as libellous content or copyright infringing content, towards a debate on whether online intermediaries should generally be made responsible for content accessible through their services or infrastructure.[11]

Animation showing 7 remote computers exchanging data with an 8th (local) computer over a network.
The BitTorrent protocol: In this animation, the colored bars beneath all of the 7 clients in the upper region above represent the file, with each color representing an individual piece of the file. After the initial pieces transfer from the seed (large system at the bottom), the pieces are individually transferred from client to client. The original seeder only needs to send out one copy of the file for all the clients to receive a copy. To stop animation, click browser's Stop or hit ESC key.

Internet intermediaries used to be understood primarily in terms of ISPs, however, internet intermediaries are now also understood to be internet portals, software and games providers, those providing virtual information such as interactive forums and comment facilities with or without a moderation system, aggregators, universities, libraries and archives, search engines, chat rooms, web blogs, mailing lists, and any website which provides access to third party content through, for example, hyperlinks. Questions of liability have emerged in relation to internet communications infrastructure intermediaries other than ISPs, including internet backbone providers, cable companies and mobile communications providers.[12]

The US Digital Millennium Copyright Act (1998) and the European E-Commerce Directive (2000) provide online intermediaries with safe harbor provisions, known as "mere conduit principle" in the Directive. Online intermediaries who host content that infringes copyright are not liable, so long as they do not know about it and take actions once the infringing content is brought to their attention. However, questions have arisen in relation to online intermediaries that are not hosts, particularly in the context of copyright infringement through peer-to-peer file sharing networks. Such intermediaries may be regarded as enabling or assisting in the downloading and uploading of files by users, and may include the writer of a peer-to-peer software, the websites that allow users to download peer-to-peer software, and in the case of the BitTorrent protocol the torrent site website and the torrent tracker. These intermediaries do not host or transmit the files that infringe copyright, though they may be considered to be "pointing to" the files. Since the late 1990s copyright holders have taken legal actions against a number of peer-to-peer intermediaries, such as Napster, Grokster, eMule, SoulSeek and BitTorrent, and case law on the liability of internet service providers (ISPs) in relation to copyright infringement has emerged primarily in relation to these cases.[13]

The decentralized structure of peer-to-peer networks does not sit easily with existing laws on online intermediaries' liability. The BitTorrent protocol established an entirely decentraliszed network architecture in order to distribute large files effectively and recent developments in peer-to-peer technology towards more complex network configurations are said to have been driven by a desire to avoid liability as intermediaries under existing laws.[14] While ISPs and other organizations acting as online intermediaries, such as libraries, have been given protection under existing safe harbor provisions in relation to copyright infringement, peer-to-peer file sharing intermediaries have been denied access to the safe harbor provisions in relation to copyright infringement. Legal action in relation to copyright infringement against peer-to-peer intermediaries, such as Napster, are generally brought in relation to principles of secondary liability for copyright infringement, such as contributory liability and vicarious liability.[15]

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Downloading copied music is legal in some countries in the context of the copyright, such as Canada,[16] The Netherlands,[17] Spain,[18] and Panama, provided that the songs are not sold. In Canada it is legal to download any copyrighted file as long as it is for noncommercial use, but it is illegal to unauthorized distribute the copyrighted files like uploading them to a p2p network. [19]

Russian law

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Downloading music and films for home use is legal due to exception provided by section 1273 of Russian Federation Civil Code. A special 1% compensatory levy intended for copyright holders is collected from the price of certain goods (like computers or clean CD-RW disks). [citation needed] The compensation mechanism is unclear, though, and left entirely in the hands of the collecting agency established at the same time, with Nikita Mikhalkov, a prominent film director and political figure, at its helm.


References

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  1. ↑ T. Dekker Wonderfull Yeare 1603 University of Oregon
  2. ↑ a b Panethiere, Darrell (July – September 2005). "The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development". UNESO e-Copyright Bulletin. p. 2. {{cite web}}: Check date values in: |date= (help)
  3. ↑ Panethiere, Darrell (July – September 2005). "The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development". UNESO e-Copyright Bulletin. p. 14. {{cite web}}: Check date values in: |date= (help)
  4. ↑ a b c Correa, Carlos Maria (2009). Intellectual property enforcement: international perspectives. Edward Elgar Publishing. p. 208. ISBN 9781848446632. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  5. ↑ Clough, Jonathan (2010). Principles of Cybercrime. Cambridge University Press. p. 221. ISBN 9780521728126.
  6. ↑ Dowling v. United States (1985), 473 U.S. 207, pp. 217–218.
  7. ↑ a b c Correa, Carlos Maria (2009). Intellectual property enforcement: international perspectives. Edward Elgar Publishing. p. 211. ISBN 9781848446632. {{cite book}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  8. ↑ "The Anti-Counterfeiting Trade Agreement – Summary of Key Elements Under Discussion" (pdf). transparency paper. Swiss federation of Intellectual Property. Status November 2009. Retrieved 8 June 2010. {{cite web}}: Check date values in: |date= (help)
  9. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 2. Retrieved September 2010. {{cite web}}: Check date values in: |accessdate= (help)
  10. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 4. Retrieved September 2010. {{cite web}}: Check date values in: |accessdate= (help)
  11. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 5. Retrieved September 2010. {{cite web}}: Check date values in: |accessdate= (help)
  12. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). pp. 5–6. Retrieved September 2010. {{cite web}}: Check date values in: |accessdate= (help)
  13. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 7. Retrieved September 2010. {{cite web}}: Check date values in: |accessdate= (help)
  14. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 9. Retrieved September 2010. {{cite web}}: Check date values in: |accessdate= (help)
  15. ↑ Edwards, Lilian; Waelde, Charlotte (2005). "Online Intermediaries and Liability for Copyright Infringement" (pdf). Keynote paper at WIPO Workshop on Online Intermediaries and Liability for Copyright, Geneva. World Intellectual Property Organisation (WIPO). p. 10. Retrieved September 2010. {{cite web}}: Check date values in: |accessdate= (help)
  16. ↑ "Your Interview: Michael Geist". Canadian Broadcasting Corporation. 2008-04-07. Archived from the original on 2008-04-12.
  17. ↑ "In depth: Downloading music". Canadian Broadcasting Corporation. 2006-05-01. Archived from the original on 2003-12-17.
  18. ↑ "La red P2P es legal" (pdf). Retrieved May 2011. {{cite web}}: Check date values in: |accessdate= (help)
  19. ↑ "Canada deems P2P downloading legal". CNET News. 2003-12-12. Archived from the original on 2013-01-02. http://archive.is/W0mdI. Retrieved 2012-12-27. 

Further reading

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  • Johns, Adrian: Piracy. The Intellectual Property Wars from Gutenberg to Gates. The University of Chicago Press, 2009, ISBN 978-0-226-40118-8
  • Rosen, Ronald (2008). Music and Copyright. Oxford Oxfordshire: Oxford University Press. ISBN 0195338367.
  • Joe Karaganis, ed. (2011). Media Piracy in Emerging Economies. Social Science Research Council. ISBN 978-0-9841257-4-6.
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