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Copyright Protection

.. anadas copyright had this case been under U.S jurisdiction the case could have been found not to violate the copyright because of the natured copyrighted work and the parody being completely two different forms of expression one being a dramatic work another being a sound recorded work. Another consideration if this case had been in U.S jurisdiction is that the parody is a derivative work and that the portion of the derivative work is not substantial of the original copyrighted work. On the other side of the argument is that even if this case were held under U.S jurisdiction it would have still resulted in the same judgment. One consideration to promote this argument is that the derivative work would be held to violate the original copyrighted work because the purpose of the parody or derivative work was for commercial use to facilitate the advertising agency into being able to reap financial gain. Another contributing factor to promote this argument is the effect of the parody or derivative work on the original copyrighted work if the derivative work or the parody was found to have drastic impact on the original copyrighted work then this final consideration would result in the same judgment as in the Canadian jurisdiction. Though in this example the case could result either way under the U.S copyright act still comparatively to the Canadian copyright act the U.S copyright act provides greater clarity on the copyright doctrine of fair dealing and because of the vagueness of the doctrine of fair dealing in the Canadian copyright act the Canadian copyright act becomes more stringent on copyright laws.

The U.S copyright act is significantly less stringent on the issue of parody than Canadian copyright act because of the poor interpretation of the copyright doctrine of fair dealing in the Canadian copyright act. The issue of copyright infringement and the Internet is one key illustration of the stringency of copyright infringement. The function of copyrights is the protection of intellectual property of copyright owners or authors in the physical world being that the responsibility rest on the copyright owner or author unless in the case of serious copyright infringement or piracy. The Internet is a digital nexus of information and to apply current stringent copyright laws to the Internet is heading toward disaster being that copyrighted works can be passed along without ever taking a transitional physical form and the vast magnitude of the Internet makes it near impossible to enforce copyright infringement. Recognizing the inherent difficulty of enforcing copyrights against individual Internet users, legal action has been taken against Internet Service Providers (ISPs) for legal liability for copyright infringement on those who allow and enable Internet copyright pirates to exist, namely the ISPs. Those who take legal action argue that ISPs profit from the pirates use of the Internet, and in comparison to an independent publisher or author, an ISP is in a much better position to police how its subscribers use the Internet.

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On the other side of the argument, ISPs claim that they are passive carriers similar to telecommunications companies and therefore should be granted some limitation from copyright infringement liability. There are two forms of copyright infringement surrounding this issue: direct copyright infringement and secondary copyright infringement. Secondary copyright infringement is again subdivided into two categories: contributory and vicarious copyright infringement. Secondary copyright infringement is applied in instances in which the defendant did not personally engage in the violating activity but still bears some responsibility for the infringement. A defendant is liable for “contributory copyright infringement if with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.”3 A defendant is liable for vicarious copyright infringement where the defendant has the right and ability to control or police the infringers acts and receives a direct financial benefit from the infringement.

In the case of Playboy Enterprises Inc. v. Frena , the defendant was an operator of a computer bulletin board service that, unknown to the defendant, distributed unauthorized copies of Playboy Enterprises, Inc.s (PEI) copyrighted photographs. For a fee, anyone with an appropriately equipped computer could log onto the BBS, browse through different BBS directories to look at the pictures, download the high quality computerized copies of the photographs, and then store the images onto their home computer. Frena admitted that the materials were displayed on the BBS and that he never received consent from Playboy. However, Frena argued that he did not personally upload any of the infringing pictures onto the BBS (his subscribers had uploaded the images) and that he removed the infringing pictures, as soon he was made aware of the matter.

In this case there was no question that Playboy owned the copyrights on the photographs due to the fact that at trial, Frena had offered no evidence to rebuff Playboys copyright documentation. The only remaining issue was whether the defendants actions implicated one of the copyright holders exclusive rights. The court held that Frenas actions had infringed Playboys exclusive right to display the works. The court held that there was no question that Frena supplied a product containing unauthorized copies of a copyrighted work. As for display rights, the court held that Frenas display of the copyrighted materials to his subscribers constituted a public display even though his subscribers were limited in number.

Frena defended his use as within the scope of the fair use exception to copyright infringement. His argument, however, fell on deaf ears. The court found that Frenas actions were commercial in nature and of the sort that if they were to become widespread would result in a substantially adverse impact on the potential market for or value of the plaintiffs work and therefore were not within the fair use exception. Though the Copyright Act was effective in providing clarification on this case. The problem in general is the liability of Internet Service Providers has not been clearly established and the enforcement of the law remains a problem. In this issue the stringency of traditional copyright laws are inherently difficult to be applicable to this new technology because of the scale of the Internet.

The basis of Copyright laws is on the fundamental notion of protection of intellectual property. This fundamental notion of protection of intellectual property serves a broader purpose today then ever before, as it is a moral, social, and economic barrier to infringe on the owners of original works. This fundamental concept of protection of intellectual property has become distorted to the point where the fundamental principles of copyrights have been abandoned by our society. This epidemic of copyright civil litigation in our legal system becomes that “when copyrights give control to one person, it extracts some measure of freedom to imitate from everyone else” Bibliography New York: Hill and Wing, 1994 Barber, Hoyt, and Logan, Robert. Protect Your Intellectual Property.

Toronto: Productive Publications, 1999 Industry Canada. A guide to Copyrights, Ottawa: Canadian Cataloguing in Publication Data, 1994 Wright, Amy and McDaniel, Jeff. Recent Developments in Copyright Law, Texas: Texas Intellectual Property Law Journal, fall 1995, Volume 4, No. 1.


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