The US and Canadian Copyright Law - Term Paper Example

Running Head: Infringement of copyright Law in US and Canada s Infringement of copyright Law in US and Canada Abstract Even though the US and Canadian copyright law partake in a common history thus embracing related principles. On the other hand, there are some factors of US copyright law that disagree considerably from its Canadian counterpart. The most important dissimilar factor is with regard to the constitutionalization of the federal governments authority to support "Progress of Science and useful Arts" via copyright law, provisos for derivative infringement, and fair use requirements. In disparity, Canadian copyright law does not constitutionalize provision defining the intention of copyright laws. Consequently, copyright law functions more as a tool to defend creators and not as a system promoting innovation and creativity. Indirect infringement in the US comes under vicarious liability (Shapiro, Bernstein v. HL Green 326 F.2d 304 (2nd Cir. 1963)) and/or contributory liability (Sony Corp. v. Universal City Studios, 464 U.S. 417 (1984)). Where as, in Canada indirect infringement is known as secondary infringement. At the same time with regard to "fair use" doctrine this doctrine can be used in the US in a very broad sense than in Canada. This means that the provisions of fair use are more liberally interpreted in the US than they are in Canada. This is the background of the discussion for this paper. Introduction The most important factor of copyright law is linked to the public interest. Copyright law actually protects and for ever tries to equalize the requirement for motivators for creativeness and the requirement to allow society to approach works created (B Kaplan, 1967; P Goldstein, 1970; R C Denicola, 1979; M J Radin, 1982; D Baird, 1983 and I E Novos and M Waldman, 1984). Widening the security rendered by copyright furnishes better incentives for generators, but constricts the public area, that is, the general cultural resources to which the public has contact. Bringing in the right balance linking adequate incentives for originality and limiting the public domain has at all times been, and yet is, one of the major tests of copyright law. The Canadian and US laws look very different on their face as one anticipates different consequences in both the countries with regard to infringement of copyright laws. This is true only to a certain extent. Therefore, when a report is published by the Canadian government or a group which is the agent of the crown can claim copyright of the report in Canada (Dableh v. Ontario Hydro, 1993)i. Whereas the same report, if published by any arm of the US federal government, cannot claim copyright in the US (Goldstein, 1989).ii Since the federal and provincial governments are not attached by the Copyright act they are untouched by suits for infringement.iii But in the US it is not the same as infringement of copyright can bring action. iv Indirect Infringement The US law has established that under fitting conditions, one person can be held responsible for the infringement of the work of another. Actually under the circumstances the facilitating party is held responsible for copyright infringement. Thus in the US there are 2 general law philosophies for indirect infringement; 1. Vicarious liability. 2. Contributory liability (http://www.innovationlaw.org/projects/dcr/copyright/ uscopyright.htm accessed December 1 2009). Vicarious liability will be inflicted on those who possess the strength to administer or direct the infringer and thus derive a financial concern in the infringer’s activities. This holds good even if the person who controls is not aware of the infringement. For instance, the parent company of chain stores will be responsible for the acts of its franchisee. This means that if a franchisee sells counterfeit products then the parent company will be held responsible (Shapiro, Bernstein v. HL Green 326 F.2d 304 (2nd Cir. 1963)) (http://www.innovationlaw.org/projects/dcr/copyright/uscopyright.htm accessed December 1 2009). Contributory liability is direct infringement and the infringer’s conduct is known to the other party. The infringing action, stimulates, causes, or materially leads to the infringing conduct of another (http://www.innovationlaw.org/ projects/dcr/copyright/ uscopyright.htm accessed December 1 2009). In Canada, indirect infringement is known as secondary infringement. It is dealt with under section 27(2) of the Copyright Act. This Act says that the person who distributes or sells or even exhibits or may be even rents such kind of work knowingly they are infringements will also be held liable (http://www.innovationlaw.org/projects /dcr/copyright/uscopyright.htm accessed December 1 2009). Fair Use The fair use doctrine is dealt with under Section 107 of the US Copyright Act. This doctrine allows for some amount of copying and dispersion without consent from the copyright holder or even with making any payment. Fair use includes the utilities for intentions like criticism, news reporting, comment, scholarship, teaching or research (http://www.innovationlaw.org/ projects/dcr/copyright/ uscopyright.htm accessed December 1 2009). Where as the list of the Canadian doctrine of fair dealing, is not exhaustive like that of the US. But the US courts have of late extended the list of fair intentions to let in mockery or satire. This indicates that the provisions of fair use are more generously understood than in Canada (http://www.innovationlaw.org/projects/dcr/copyright/ uscopyright.htm accessed December 1 2009). The American theory of fair dealing as provided under 17 USC 107 is; "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright" (http://www4.law.cornell.edu/uscode/ html/uscode17/usc_sec_17_00000107000-.html Retrieved December 1, 2009). The section further states that the factors which are to be taken into account before deciding as to whether the use of any work for any particular case is a fair use or not is as follows: "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work" (http://www4.law.cornell.edu/uscode/ html/uscode17/usc_sec_17_00000107000-.html Retrieved December 1, 2009). This section17 USC 107 has derived its definition based on a number of US Supreme Court cases which started with the judgment of Souter J in Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)). The functioning of the American doctrine of estoppels and implied license in fair dealing is set out in the case of Sony Entertainment Inc. and Others v Connectix Corporation  Cornell LII (Case No:99-15852 ). Reed J in the case of Barbara Hager v ECW Press Ltd. and Others [1999] 2 FC, 287 summarized the key difference between the two concepts of fair dealing and fair use as follows: "The concept of fair dealing in s. 29, 29.1 and 29.2 of the [Canadian] Copyright Act is quite different from that of fair use in the United States. The most significant difference is that under Canadian copyright law the use of the copied material must come within one of the specific purposes identified in the statute: research or private study (section 29), criticism or review (section 29.1), or news reporting (section 29.2)"  (http://www.ipit-update.com/copy37.htm Retrieved December 1, 2009). References 1. B Kaplan An Unhurried View of Copyright (Columbia University Press New York 1967) 2. D Baird Common Law Intellectual Property and the Legacy of International News Service V. Associated Press (1983) 50 Chicago L Rev 411 3. I E Novos and M Waldman The Effect of Increased Copyright Protection: An Analytic Approach (1984) 92 J Political Economy 236 4. http://www.innovationlaw.org/projects/dcr/copyright/uscopyright.htm accessed1 December 2009 5. http://www.ipit-update.com/copy37.htm Retrieved December 1, 2009 6. http://www4.law.cornell.edu/uscode/ html/uscode17/usc_sec_17_00000107000-.html Retrieved December 1, 2009 7. M J Radin Property and Personhood (1982) 34 Stanford L Rev 957 8. P Goldstein Copyright and the First Amendment (1970) 70 Columbia L Rev 983 9. R C Denicola Copyright and Free Speech: Constitutional Limitations on the Protection of Expression (1979) 67 California L Rev 283 Read More