Authorizing Infringement and Secondary Infringement - Essay Example

izing Infringement and Secondary Infringement A copyright owner reserves exclusive right to copy, issue copiesto the public, rent out his material, publicly perform his work, and adapt the work. The copyright owners’ work will be infringed upon when anyone, without the copyright owners’ prior approval, copies or distributes copies to the public or lends the work to the public or facilitates other to do the same directly or indirectly (Gillhams). The statement that, ‘there can be no infringement by authorization unless primary rights of the copyright owner were infringed upon’, therefore, does not hold true. to the extent of the first paragraph; an infringement by authorization if for example a digital music library online has rights to copy and distribute a musicians’ material and this site sells the music to a user who then shares the music in a peer to peer platform knowingly or unknowingly since the distributor does not warn the buyer or give guidelines and make the buyer aware that sharing or copying that music is illegal if done without approval from the copyright owner. File-sharing refers to exchanging copyrighted files through the internet with a financial inducement involved without getting permission from the copyright owner (“Protecting UK Music”). This was the same case with the University of New South Wales vs. Moorehouse where the university did not make it clear to students that copying any material without prior direct permission from the copyright owner is illegal and it provided a means and material for the infringement, a copier and paper (“European IP Bulletin, Issue 25, September-Hot Topics”). The providers of peer to peer networks then become liable for authorizing file sharing. For example Apple iTunes does not expressly warn purchasers that they cannot share music; it even encourages people to join its ‘PING” network where among others; people can see what music you ‘like’ and have downloaded and one can ‘burn’ audio playlists ‘up to seven times’(Apple) . Apple is not expressly prohibiting sharing of music; if one burns a playlist seven times who is liable if the person shares it? And can Apple be considered to be tolerant of sharing? Apple can be considered to countenance because it does not give conditions for making copies but says a playlist can be ‘burned up to seven times’, but for what purpose (Brendan). In the CBS and others vs. Amstrad Consumer Electronics Plc and Other ruling in 1988, the judge ruled in favor of the defendant that it granted the ability for consumers to make copies of tapes onto blank equipment but did not give consumers the right to copy (“CBS Songs Ltd and Others vs. Amstrad Consumer Electronics Plc and Another”), so they were not liable for authorization, though their products were or could be used to infringe on copyrights; the ruling says the defendant was not guilty but he facilitated a means to infringe on copyright so in reality they should be liable for acts of commission and omission to the extent of authorizing duplication basically authorizing secondary infringement. The Copyright, Designs and Patents Act of 1988 classifies provision of a means for creating infringing copies as secondary infringement (“Copyright Law-An Introduction”). The judgment in the Twentieth century Fox and the Motion Picture Association of America (MPAA) vs. Newzbin, the defendant was found liable for infringing on the MPAAs copyrights through facilitation and sharing copyrighted material with the public for which it received payment (Lambert) and therefore guilty of authorization of secondary infringement. In the Nintendo case against Playables ruling which was in favor of Nintendo to stop the marketing of chips that could sidestep anti copying measures and therefore enable piracy (“Practical Law Company”) shows that Playables was liable for authorization by providing a means to skirt around copy protection mechanisms and thereby enable secondary infringement. In the Amstrad vs. British Phonographic Society ruling which was in favor of the former; the judge held that by availing a means for high speed copying of tapes, consumers may or may not commit secondary infringement by copying tapes, but Amstrad has no control of the right or wrong action by the consumer as they do not give the consumer rights to copy certain works as does the manufacturers of blank tapes (Naphthali). This is in contradiction to the Moorehouse ruling probably because of the different legal jurisdictions and countries involved. The Digital economy Act of 2010 makes copyright law enforcement easier by allowing copyright owners to report infringements by internet users to digital content providers and internet service providers are required to provide a copyright owner with a list of violators and the list of violations (“Digital Economy Act 2010”). Other measures that will help protect copyright owners are the ethics guidelines for building a digital library for the US (Witten, Bainbridge, and Nichols 55-64). The Copyright, Designs and Protection Act (CDPA) cap 107 targets file sharing but is limited in 107(1) in that it specifies the distribution must be in the course of a business or be to be prejudicial to the copyright owner (Filby). Internet intermediaries should be held liable for promoting, enhancing piracy or copyright infringement (Seng) because most deliberately refuse to take any steps to reduce the vice among its customers. In conclusion, the argument that only if authorization is from a copyright owner is when no primary infringement is adjudged is correct; the copyright owner must give direct authorization before any subsequent copying is legal; however authorization infringement can and does occur even when there is no primary infringement for example Apple has all the rights to distribute music that can be copied but it has no control or jurisdiction over what a customer who legally buys music decides to share it so Apple cannot be held responsible for authorization as it has the rights to distribute music but no rights to control its users. Though existing laws have attempted to address this problem, conflicting judgments have been made (consider the CBS vs Amstrad and Moorehouse vs. UNSW rulings) mainly due to legal jurisdiction and country and applying old laws that are not practical to modern times. Liability for providing means for infringement has to have a concept of control. New laws and regulations to reflect changing times and technology should be made such as the Digital Economy Act 2010 which addresses the challenges of technology though it may have some social ramifications such as arbitrary searches (Maughan). Laws should also balance intellectual rights with the right to access information (Akester) so there is an urgent need to modify copyright laws and their enforcement (Robnagel, Jandt, Schnabel, and Yliniva-Hoffman) . Works Cited Akester, P. "The New Challenges of Striking the Right Balance Between Copyright Protection and Access to Knowledge, Information and Culture." UNESCO Intergovernmental Copyright Committee. UNESCO, June 2010. Web. 13 Jan 2012. . Apple, "Terms and Conditions" Apple iTunes Apple Inc. 12 October 2011 Web 13 Jan 2012 Read More