Absolutely right. In the absence of a click-or-shrink wrap license
there is no doubt that the uses permitted are governed by copyright law.
"License" verbiage is best regarded as an indication of what the
copyright owners wished the law said.
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of John T. Mitchell
Sent: Monday, September 11, 2006 5:41 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: DVD: public performance with an audience of only
one person?
In the U.S., there is no private use exception, nor is there any such thing as a license for private homes only. (Your premise that "Since ordinary DVDs are licensed for viewings in private homes only" is simply incorrect, notwithstanding the fact that some publishers purport to license them for home viewing only.)
The only type of performance that can ever be infringing is a public performance. Private performances are never infringing (U.S. copyright does not extend to them at all). So the key question is what makes a performance public.
Section 101 of the U.S. Copyright Act defines it as follows:
"To perform or display a work "publicly" means- (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."
For the facts you offer, I can't think of any case in the U.S. wherein they have been litigated, but there are two points you can examine.
(1) is the place where they are performed open to the public? There would be a big difference between a private executive office and a public trade show floor.
(2) does fair use apply? Being clearly commercial in nature does not damn fair use under U.S. law. In fact, some important fair use cases were purely commercial (e.g., displaying publicly the copyrighted cover of a competitor's magazine in an advertisement claiming that the advertiser's magazine was superior). The U.S. Congress carved out a specific exemption for public performances of sound recordings for the purpose of promoting the (commercial) sale of the sound recordings or of the equipment used to play them on. Although the exemption literally applies only to sound recordings, the industry has generally accepted the practical application to audiovisual works as well, and I believe that the statutory exemption was in substance a congressional recognition that such performances, even in places open to the public, meet the elements of fair use.
In general, I favor a view that where the work being performed is merely incidental to the use (e.g., to demonstrate how well an image looks on a screen, or how well the sound comes through the speakers, or how clear the text is on a hand held book reader), then it is not "the work" that is being exploited for its creative value, but merely as representative of any work of similar characteristics and for purposes unrelated to the elements that made it copyrightable. In such cases, it should be fair use -- but I cannot case or statutory law authority for that view. Perhaps a few years from now.
John
John T. Mitchell
http://interactionlaw.com
On Sep 8, 2006, at 4:00 PM, Dominik P. Rubli wrote:
> Regarding US copyright law:
>
> Is there a practice for issuing umbrella licenses for commercial
> purposes
> regarding the performance of DVDs where there is no audience in a
> traditional sense, e.g. when a marketing information company
> screens DVDs
> for appearances in a movie of products with a certain trade mark?
> Here, only
> one person at a time watches the movie in his office, thus the
> audience is
> just one person.
>
> Since ordinary DVDs are licensed for viewings in private homes only
> and any
> use outside the private home is deemed "public performance" under US
> copyright law, it seems that in my example the marketing
> information company
> would need a license. Fair use does in my opinion not apply because
> the
> first three factors seem to weigh against it.
>
> The reason behind my inquiry is that Swiss copyright law does not
> know the
> notion of "public". Instead, every performance of a movie is an
> infringement. However, statutory exceptions apply. One is for
> private use
> which is not limited to a space like a private home. So there is
> debate
> whether the use outlined above still is private use because only
> one person
> watches the movie at the same time or not because it is clearly
> commercial
> in nature.
>
> Thanks for any input!
>
> Dominik P. Rubli
>
> Dominik P. Rubli, lic. iur. HSG
> Rechtsanwalt/Attorney-At-Law
> Landvogt Waser-Str. 34
> Postfach 465/P.O. Box 465
> CH-8405 Winterthur
> Schweiz/Switzerland
> Tel. +41 (0)44 500 93 50
> Fax +41 (0)44 500 93 51
> Tel. privat +41 (0)52 233 08 67
> mailto:drubli[_at_]rublilaw.com
> www.rublilaw.com
>
>
> #############################################################
> This message is sent to you because you are subscribed to
> the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
> To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org>
> To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org>
> To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org>
> To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org>
> To resume mail list message delivery from postpone mode, E-mail to
> <CNI-COPYRIGHT-feed[_at_]cni.org>
> Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>
>
> Visit the CNI-COPYRIGHT e-mail list archive at <https://
> mail2.cni.org/Lists/CNI-COPYRIGHT/>.
>
#############################################################
This message is sent to you because you are subscribed to
the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org>
To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org>
To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org>
To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org>
To resume mail list message delivery from postpone mode, E-mail to
<CNI-COPYRIGHT-feed[_at_]cni.org>
Visit the CNI-COPYRIGHT e-mail list archive at <https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Wed Sep 13 2006 - 00:55:00 GMT
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:57 GMT