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Thursday, 7 November 2013


Copyright is a legal provision that protects creators of original content from replication and sale without permission. The copyright holder is the person or party whose ownership of a product or content is permitted. Violation of copyright is a crime and the copyright holder is entitled to sue for damages upon detection of an infringement (LaFrance, 2008). The law stipulates conditions under which a party can successfully be granted copyright which include originality among other provisions. The importance of copyright to businesses is that it helps in securing their profitability. However, its enforcement may be subject to a number of challenges with range from technological developments and the enforcement of the first sale doctrine. This article discusses copyright in light of “Copyright Ruling Rings with Echo of Betamax” by Porter (2013) and offers recommendations for challenges faced.

Porter (2013) discusses some of the rulings on copyright and the implications they have on the business legal environment. The article is a reflection on the conflict between the need to enforce copyright in favour of copyright holders and the need to embrace emerging market developments. One of the battles depicts Sony Betamax against the American film producers. The product enabled users to record their favourite programs in order to watch them at a later time (Porter, 2013). In a decision that was bound to be against Betamax (before one of the judges changed her opinion), the Supreme Court had been of the opinion that since it was illegal to copy content without the copyright holder’s consent, Betamax was an accessory to crime by facilitating it.
Another copyright ruling highlighted by Porter (2013) pitted leading American studios against Blockbuster, Netflix and Redbox who were reselling videotapes for profit. The Congress declined to stop them citing the provisions of the first sale doctrine. This doctrine was also evoked in the case of John Wiley & Sons versus Supap Kirtsaeng. The defendant had obtained cheap books from his friends and relatives and resold them in the USA at a profit (Porter, 2013). In determining that Supap Kirtsaeng had not violated the plaintiff’s copyright, the court ruled that he had the right to resell the books provided that he had legally acquired them.
The article cite the fact that these court rulings have been instrumental in facilitating technological developments making it possible for products such as DVDs and online services such as Youtube to exist. Nevertheless, this article highlights the nature and intention of copyright provisions and the challenges that are faced in enforcing the same.

The history of development of copyright laws can be traced to development of the printing press. The earliest form of protection of written content was in the UK in 1469 when Tom of Speyer was granted sole rights to print letters of Cicero and Pliny for 5 years by the Republic of Venice.  In 1518, Richard Pynson was granted by the King of England protection for his book whereby reprinting and importing versions of the same was disallowed for a period of two years (De Wolf, 1925, p. 2). The governments would then grant special rights of printing to individuals especially those who were well-placed politically. However, the focus would gradually change towards protection of private enterprise and protecting businesspersons from having their works reprinted and distributed against their will. The first formal copyright law was enacted in 1710 in England. The law dubbed 8 Anne had provisions in Chapter 19 that provided for copyright protection for authors for a period of 21 years for books that already existed and 19 years for new books with a possible renewal of 15 years (De Wolf, 1925, p. 7). The rights originally granted to book authors have subsequently been expanded to cover content creators including dramatists, music composers, artists, photographers, engravers and others.
The main condition for being granted copyright is originality. This implies that the person or organisation applying for copyright must be able to show that the work is original (Stim, 2000). However, the provision for originality is not stringent and a display of different arrangement of material or manifestation of a different taste could be a sufficient distinguishing factor. In the case of Sawkins v Hyperion (2004), the claimant had gone ahead to edit the work of a composer which was yet to be copyrighted and royalty paid (Torremans, 2009, p. 15). The fact that the claimant was able to inject his skill into the work qualified the work as original and the defendants did not have a justifiable argument when they stated that the improvements made on the work could have been realised through subsequent rehearsals.
The interpretation on the arrangement or display of skills in materials has also been brought out in the case of Burrow-Giles Lithographic Co v. Sarony in 1884 (Casenotes, 2007, p. 2). In this case, a photographer, Sarony, had secured copyright to the photographs of Oscar Wilde. Burrow-Giles however went ahead to sell copies of the same. The court of appeal ruled that the photographs by Sarony were copyrightable. This was due to the fact that their collection and arrangement bore the skill, creativity and originality in the presentation of the same.
The copyright provisions are not absolute. There are exceptions that are acceptable that can warrant infringement of copyright to be allowed. For instance, in matters of public interest, copyright can be restricted if it is found to deny the public access to the materials concerned (Torremans, 2009). The application of this limitation however raises many questions with many being uncomfortable with the absence of a formal definition of what constitutes public interest. Limitation can be related to power relationships, national mentalities, and political circumstances (Torremans, 2009). Strong overriding public interest can include factors such as freedom of information while national mentalities could be related to questions such as the interlude between protection of copyright and facilitating growth of industries.
Porter (2013) discusses the implication that the Supreme Court ruling had on the field of technology. He notes that a negative ruling would have meant that all technologies that allow the copying of content would have been outlawed by virtue of being facilitators of a crime. This decision can therefore be linked to the prevailing national mentality which can be presumed to be the implication that a contrary ruling would have on future technological developments. Another inference can be made in the decision on John Wiley & Sons versus Supap Kirtsaeng where the defendant was allowed to resell Thai books within the USA market (Porter, 2013). This can be interpreted as a decision that pits the interests of the local consumer against the rights of the foreign investors. In consideration of the national interest, the rights of the local consumer are likely to be an overriding factor. This is besides the explicit provisions of the first sale doctrine which has been alluded to by Porter (2013) when he describes the several rulings in relation to copyright laws.
In the Betamax case, the underlying provision is the acknowledgement of the fact that it is illegal to replicate or distribute content without the consent of the copyright holder (Porter, 2013). This provision remains the position in law. However, as is observed in Porter’s article, there are many limitations that could come into effect hence limiting the rights of the copyright holder. One such limitation is the doctrine of first sale. The doctrine of first sale doctrine was first developed in the case of Bobbs–Merrill Co. v. Straus in 1908 when the courts held that: even though the original seller has an exclusive right for sale and distribution of products, this right does not extend to the imposition of price limitations on secondary sales (Newman, 2010, p. 851). In this case, Bobbs–Merrill Co sold copyrighted material to the defendant. The retail price of the book was stated to be $1 and there was an explicit provision that all retailers must uphold this price. The defendant subsequently bought a large amount of books and resold them at 89cents. On being sued, the courts held that the defendant had purchased and assumed ownership of the books and could therefore not be restricted on the price to sell them at. This reasoning is reiterated in Porter’s article (2013) in John Wiley & Sons v. Supap Kirtsaeng where the defendant obtained books for resale in the USA.

Porter (2013) outlines the impact of the decisions made in enforcing restrictions to copyright as good for the customer and bad for the organisations. The customers are able to have greater access to products at affordable prices. The organisations on the other hand are faced with the need to embrace different pricing strategies if they are to avoid losing demand to resellers. This view reiterates the position taken by Long (2006) who cites developments in the digital era as real and warranting important changes to be made to copyright provisions. For instance, the threat of resale is highest in the digital era where individuals can have access to a vast market at the click of a button (Rotstein, Evitt and Williams, 2010). The emergence of electronic products also makes it difficult for organisations whose products are only in print to survive in the market.
McGrail and McGrail (2010) on the other hand view digitisation as an opportunity for organisations. Instead of selling physical products over whose resale they cannot control, organisations can utilise the growing preference for electronic products to excel in the same. As Porter (2013) holds, it is possible for electronic products to be designed in a manner that restricts their usage according to region or even usage where the usability can be reduced over time. This could help in countering resale. This idea can also be extend to include codes in the products that restrict the number of times it can be shared by different computers.
In regards to limitations related to physical products, Porter (2013) proposes that foreign companies avoid segmentation based on price and instead focus on maintaining low prices in the foreign markets. Profitability can thence be maintained by controlling costs such as through the use of cheaper printing materials.

Porter (2013) highlights the challenges that are faced in enforcing copyright. These challenges have been highlighted as limitations related to national mentality, public interest matters, political interest and the application of the first sale doctrine. However, the fundamental provisions remain the same: protection of copyright. Even though the digital revolution makes it easy for resellers to access wide markets, it also provides organisations with the option of overcoming this challenge. Converting content into digital products can make it easy for restrictive codes to be attached to products hence be able to limit the number of users and region where such products can be usable. These are dynamics in the copyright laws that the organisation needs to appreciate in order to be competitive over the long term.

For more theory and case studies on:

Casenotes, (2007). Casenote Legal Briefs. Aspen Publishers Online
De Wolf, R.C. (1925). An Outline of Copyright Law.  Wm. S. Hein Publishing
LaFrance, M. (2008). Copyright Law in a Nutshell. West Publishing Company, College & School Division
Long, S.A. (2006). US copyright law: the challenge of protection in the digital age. New Library World 107(9/10): 450-452
Mcgrail, J.P. & Mcgrail, E. (2010). Overwrought copyright: Why copyright law from the Analog Age does not work in the Digital Age's society and classroom. Education and Information Technologies 15(2): 69-85
Newman, J.W. (2010). Selling the Right to License: Examination of the First Sale Doctrine through the Lens of UMG Recordings & Quanta Computer. Journal of Corporation Law 35(4): 849-866
Porter, E. (2013). Copyright Ruling Rings With Echo of Betamax. Retrieved November 6, 2013 from:
Rotstein, R.H., Evitt, E.F. & Williams, M. (2010). The First Sale Doctrine in the Digital Age. Intellectual Property & Technology Law Journal 22(3): 23-31
Stim, R. (2000). Copyright Law. Albany, NY: West Legal Studies
Torremans, P. (2009). Copyright Law: A Handbook of Contemporary Research. Oxford: Edward Elgar Publishing

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