Copyright
Outsourcing transactions involve copyrights
because the service provider has access to use the enterprise customer's data,
which are generally entitled to copyright protection. In addition,
the service provider's service delivery platform will contain software and
technological processes that are works of authorship and thus entitled to
copyright protection.
U.S. Law on Copyright
Scope of protection.
Copyright protection is provided by the laws of the United States to the
authors of "original works of authorship," including literary,
dramatic, musical, artistic, and certain other intellectual works. Copyright is a property right in a "work" as defined by Section 101
of the US Copyright Act. The U.S. Copyright Office administers the law,
which is a matter of federal law as provided under the U.S. Constititution.
It is the expression of an idea, as embodied by the
"work," that receives protection under the act (as opposed to the
ideas that underlay the work, which are not protected). While titles and short
phrases may not be copyrightable, they may be protected by trademark if they
meet the appropriate qualifications (See Trademark Section).
Statutory Rights of Copyright Holders.
It is illegal for anyone to violate any of the rights provided by the
copyright law to the owner of copyright by making or distributing unauthorized
copies. Sections 107 through 121 of the 1976
Copyright Act establish limitations on these rights. One major limitation is the
"fair use" doctrine, which allows copying "for purposes such as
criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research." In other instances, the
limitation takes the form of a "compulsory license" under which
certain limited uses of copyrighted works are permitted upon payment of
specified royalties and compliance with statutory conditions.
Duration of Protection.
For works created after January 1, 1978, copyright protection will endure for
the life of the author plus an additional 70 years.
Other Countries
The protection of copyrights is a fundamental
principle of the international treaties, some dating back to the 19th century,
by which governments protect intellectual property rights. Today,
countries adhering to the World Trade Organization's conventions on
international trade must provide minimum legal protections. However, the
scope and reality of legal protections may be different than those provided
under U.S. law and should be consulted in the due diligence process before data
transfers begin.
Available Copyright Legislation
- United States Constitution.
- Congress shall have the authority to enact
laws "To promote the progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive right to their respective
writings and discoveries."
- United States Copyright Act (17 USC) (http://www.loc.gov/copyright/).
- Digital Millennium Copyright Act (DMCA) (Pub. Law
105-304).
- The DMCA marks the beginning of
cyber-copyright focus in the United States. For example, in
general, Internet Service Providers are protected from liability for
making unauthorized copies if the ISP's merely transmit data without
changing it.
- Copyright Term
Extension Act of 1998 (CTEA) (Pub. L. No. 105-298).
- No Electronic Theft Act (NET ACT).
- The 105th Congress enacted the NET Act to extend the protection of copyright
law to the Internet by amending 17 USC 506(a). This law sets forth penalties for
willfully infringing a copyright: (1) for purposes of commercial advantage or
private financial gain; or (2) by reproducing or distributing, including by
electronic means, during any 180-day period, one or more copies of one or more
copyrighted works with a total retail value of more than $1,000.
Additional Resources
Intellectual Property
Moral Rights
Patent
Trademark
Trade Secret
Knowledge Management
International
Outsourcing
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