INTELLECTUAL PROPERTY

LAW
COPYRIGHT (part 3)
Infringment and exception
 Objective

After the class, student can know

•Understanding the types and nature of infringement
•How to protect their creative works, or copyright better.

http://fpt.edu.vn 03/01/24 2
 Main content

1. Infringement
2. Primary infringement
3. Secondary infringement
4. Exception to copyright infringement
5. Discussion: When don’t you need permission to use an existing material?
6. “How to” tips

http://fpt.edu.vn 03/01/24 3
 1. Infringement

Your economic rights may be infringed if someone, without permission, is:

•doing an act that you have the exclusive right to do (e.g. making a copy of a
manual);
•dealing commercially with an infringing work (e.g., selling a pirate CD)

•(in some countries); or

•importing an infringing work (in some countries)

http://fpt.edu.vn 03/01/24 4
 1. Infringement

Your moral rights would be infringed:

•if your contribution, as author of the work, is not recognized;

•if the copier passes himself off as the author of the work; or if your work is
subjected to derogatory treatment or is cut or modified in a way that would be
prejudicial to your honor or reputation

http://fpt.edu.vn 03/01/24 5
 1. Infringement

Ownership of copyright gives two types of legal control.

-The right to stop others from copying the material without permission: this is
known as primary infringement
-The right to stop the trading of those illegal copies, called secondary
infringement

http://fpt.edu.vn 03/01/24 6
 1. Infringement

Primary infringement (infringement by copying) Secondary infringement (infringement by trading)

Copying without the copyright owne - Deal with the infringing copies
r’s permission commercially;
-Copying entire copyright work - Know or have reason to know that
-Copying in a different medium the copies taken without
-Copying a substantial part of a permission
copyright work
-Copying by adaption
-Public use; and so on

http://fpt.edu.vn 03/01/24 7
 1. Infringement

Case study: Taylor Corporation v. Four Seasons Greetings, LLC, No. 04-1088
(4th Cir. 2004):

Facts: While employed by Four Seasons, Stockmal, Shelton, and Brunettin (the ex-
employees of Creative Card which purchased by Taylor) created six card designs
Taylor contends are similar to six card designs the artists previously created for
Creative Card. Taylor sued Four Seasons for infringement of copyright in six card
design.

What is your opinion on this issue?

http://fpt.edu.vn 03/01/24 8
 2. Primary infringement

General rules
•If someone copies without the copyright owner’s permission, that person is
liable to legal action unless the copying falls within a variety of exceptions
•No excuse

•However, there must have been an act of copying. On the other hand, if there
is a similarity and access to the original was possible, one may infer that the
material has been copied
http://fpt.edu.vn 03/01/24 9
 2. Primary infringement

Copying in a different medium

a photocopy of a book

a scanned-in digital copy of a photograph

a reproduction and the copy has a material form

modern technology is concerned, there is a specific reference to ‘storing the

work in any medium by electronic means’
Making a short-term or transient copy
http://fpt.edu.vn 03/01/24 10
 2. Primary infringement

Copying a substantial part of a work

uses a ‘substantial part’

judged by quality as well as quantity

copying one frame from a film

benefiting from use of the copyright work by saving oneself time and effort
instead of producing an independent version

http://fpt.edu.vn 03/01/24 11
 2. Primary infringement

Copying by adaptation
adapt a copyright work

translating and recording in any way whether on paper or disk

http://fpt.edu.vn 03/01/24 12
 2. Primary infringment

Broadcasting and other public use

re-broadcast it

include it in another cable programme

transmit it by cable

with modern technology, perfect copies of recordings can be made very

easily so the owner needs extra control

http://fpt.edu.vn 03/01/24 13
 3. Secondary infringement

Imports from abroad

•Exception is for copies imported for private and domestic use

•For example, books are often sold in different countries at different prices;
import into the UK of low-priced books would be objectionable to a company
selling books here at a higher price.
•The customs and excise authorities can be approached the copied goods and a
request made to treat the infringing copies as prohibited goods

http://fpt.edu.vn 03/01/24 14
 3. Secondary infringement

Business use
•The copyright owner can sue for infringement if a copy is sold or hired, or
offered for sale or hire
•The same applies if the article is distributed either internally within a business
or outside the company.
•Doing anything which has a professional or commercial link can be an
infringing use

http://fpt.edu.vn 03/01/24 15
 3. Secondary infringement

Public performances
•‘public’ can mean an audience of parents at a school, or the general public in
a village hall, and can include members and guests in a club
•Showing a TV broadcast, cable programme, film or playing music to the
public requires permission
•There is one exception, which is playing sound recordings in a club, but the
definition of a club in this context is limited

http://fpt.edu.vn 03/01/24 16
 4. Exception to copyright infringement: Fair dealing

• In general business: non-commercial purposes research or private study,

librarians can make the single permitted copy for savings, the purpose of
criticising or reviewing the work
• Public events: privacy right

• Time shifting: A special exception is made for recording broadcasts or cable

programmes for the purpose of time shifting for more convenient viewing
in domestic premises
http://fpt.edu.vn 03/01/24 17
 4. Exception to copyright infringement: Fair dealing

• Education: provided the copying is done for instruction or for setting

exams, but a limited number of photocopies, or work done by the teacher
and for instructional purposes only
• Technical Abstracts: allows to use author-written abstracts without the need
for permission from each individual, unless there is a licensing scheme in
force
• IEEE Papers
http://fpt.edu.vn 03/01/24 18
 4. Exception to copyright infringement
Exceptions to copyright infringement under Art. 25 of Vietnamese IP
Law: An exhaustive list of free use + certain conditions:
•Only applied to published works
•Free use of the work must not be prejudicial to the normal exploitation of the
work, and must not affect rights of the authors and copyright owners
•Users must give attribution to the work

http://fpt.edu.vn 03/01/24 19
 5. Discussion:
When don't you need permission to use an existing
material?
• How long is copyright protection?

• Cases of fair dealing?

• When and how are materials protected by copyright?

http://fpt.edu.vn 03/01/24 20
 5. Discussion: When don't you need permission to use an
existing material?

• The content or material which is not protected under copyright law.

• The work which is in, or has fallen into, the public domain; and

• The content or material which is covered by the concept of 'fair use' or 'fair
dealing' or by a limitation or exception specifically included in the national
copyright law.

http://fpt.edu.vn 03/01/24 21
 5. Discussion: When don't you need permission to use an
existing material?

Special cases: Non-voluntary (compulsory) licenses

Non-voluntary (compulsory) licenses allow the use of works in certain
circumstances without the right owner’s permission, but require that
compensation be paid for that use

http://fpt.edu.vn 03/01/24 22
 5. Discussion: When don't you need permission to use an
existing material?
Special cases: A work in the public domain
Absence of a copyright notice does not imply that a work is in the public
domain, even if the work is available on a website.
If no one has copyright in a work, that work belongs to the public domain
and anyone may freely use it for any purpose whatsoever.

http://fpt.edu.vn 03/01/24 23
 5. Discussion: When don't you need permission to use an
existing material?

Special cases: A work in the public domain (cont.d)

The following types of works are in the public domain:
1. a work for which the copyright protection period has expired
2. a work that cannot be protected by copyright (e.g., title of a book); and
3. a work for which the copyright owner has explicitly abandoned his rights,
for example, by putting a public domain notice on the work.

http://fpt.edu.vn 03/01/24 24
 6. “How to” tips

Reduce the risk of infringement

•educate your staff so that they are aware of possible copyright implications of
their work;
•obtain written permission, licenses or assignments, where needed, and

•ensure that staff are familiar with the scope of these permissions, licenses or
assignments;

http://fpt.edu.vn 03/01/24 25
 6. “How to” tips
Reduce the risk of infringement (cont.d)
•mark any apparatus that could be used to infringe copyright (such as photocopiers,
video recorders, computers, CD and DVD burners) with a clear notice that the
apparatus must not be used to infringe copyright;
•prohibit your staff explicitly from downloading music, video films, etc. from the
Internet on office computers;
•……

http://fpt.edu.vn 03/01/24 26
 6. “How to” tips
Find out whether a work is still protected
•In accordance with the author's moral rights, his or her name will normally be
indicated in connection with the work, and the year he or she died maybe
available in bibliographic works or public registers.
•Consult the copyright register of your country's copyright office (if any) to
check for any relevant information

http://fpt.edu.vn 03/01/24 27
 6. “How to” tips
Find out whether a work is still protected (cont.d)
•Remember also that there may be several copyrights in one product, and
these rights may have different owners, and with different periods of
protection (overlapping copyright protection)

http://fpt.edu.vn 03/01/24 28
 6. “How to” tips
Using works published on the internet
•Works published on the Internet are protected by copyright in the same way
as works published by any other means.
•Numerous websites contain text, music, photographs, multimedia products,
audiovisual productions or drawings. These works are protected, provided they
meet the normal copyright requirements.

http://fpt.edu.vn 03/01/24 29
 6. “How to” tips
Using works published on the internet
•Often, you will find copyright information or terms and conditions of use on
the home page of the website. In the absence of any clear statement or notice,
you should seek prior written or formal permission to download or copy the
material, if your intended use is covered by the protection.

http://fpt.edu.vn 03/01/24 30
 Summary

• Primary and secondary infringements demonstrate their scope and effect

differently on the right of the copyright owner, the common point is these
are copyright infringements.
• Besides infringement, there are some exceptions that allow you to copy
others' works without infringement.

http://fpt.edu.vn 03/01/24 31
 Thank you for your attention

Questions & Answers

http://fpt.edu.vn 03/01/24 32