⚖️Media Law and Policy Unit 5 – Intellectual Property in Media

What's Intellectual Property?

• Intellectual property (IP) refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce
• IP is protected by law through patents, copyrights, trademarks, and trade secrets, giving creators exclusive rights to their creations for a specified period
• Encourages innovation and creativity by providing incentives for inventors and artists to develop new ideas and works without fear of others profiting from their efforts
• Promotes economic growth by creating new industries and jobs based on IP-protected products and services (smartphones, pharmaceuticals)
• Balances the interests of creators and the public by granting exclusive rights while allowing for fair use and eventual entry into the public domain
  • Exclusive rights typically last for a limited time (20 years for patents, life of the author plus 70 years for copyrights)
  • Fair use allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
• IP rights are territorial, meaning they are granted and enforced on a country-by-country basis, although international treaties (Berne Convention, TRIPS Agreement) provide some harmonization
• IP is a major driver of the global economy, with IP-intensive industries accounting for a significant share of GDP and employment in many countries (38% of U.S. GDP, 27.9 million jobs)

Types of IP in Media

• Copyright protects original works of authorship, such as books, music, films, television shows, photographs, and computer software
  • Grants exclusive rights to reproduce, distribute, perform, display, and create derivative works
  • Arises automatically upon creation of the work, although registration provides additional benefits (presumption of validity, statutory damages)
• Trademarks protect words, phrases, symbols, or designs that identify and distinguish the source of goods or services (Nike swoosh, McDonald's golden arches)
  • Prevents consumer confusion and protects brand reputation by prohibiting others from using similar marks on related products or services
  • Requires use in commerce and can last indefinitely as long as the mark remains in use and retains its distinctive character
• Patents protect new, useful, and non-obvious inventions, such as technological innovations used in media production and distribution (video compression algorithms, content delivery networks)
  • Grants exclusive rights to make, use, and sell the invention for a limited period (typically 20 years from filing date)
  • Requires disclosure of the invention in the patent application, promoting knowledge sharing and further innovation
• Trade secrets protect valuable confidential information that provides a competitive advantage (customer lists, algorithms, production processes)
  • Protects against misappropriation by those who obtain the information through improper means or breach of confidentiality
  • Requires reasonable efforts to maintain secrecy and can last indefinitely as long as the information remains secret
• Right of publicity protects an individual's right to control the commercial use of their name, image, likeness, or other aspects of their identity
  • Prevents unauthorized use in advertising, merchandising, or other commercial contexts without permission
  • Varies by jurisdiction, with some states recognizing it as a property right and others as a privacy right

Copyright Basics

• Copyright is a form of intellectual property that protects original works of authorship fixed in a tangible medium of expression
• Protects a wide range of creative works, including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, audiovisual, and architectural works
• Arises automatically upon creation of the work, without the need for registration or notice (©)
  • However, registration with the U.S. Copyright Office provides additional benefits, such as the ability to sue for infringement and the potential for statutory damages and attorney's fees
• Grants the copyright owner exclusive rights to reproduce, distribute, perform, display, and create derivative works based on the original
  • These rights can be licensed or assigned to others, allowing for the commercial exploitation of the work (book publishing, film adaptation)
• Copyright protection lasts for the life of the author plus 70 years, or 95 years from publication for works made for hire (created by employees or commissioned under certain circumstances)
• Limitations and exceptions to copyright, such as fair use, allow for certain uses of copyrighted material without permission (criticism, commentary, news reporting, teaching)
• Copyright infringement occurs when someone violates any of the exclusive rights granted to the copyright owner without permission or a valid exception
  • Remedies for infringement include injunctions, monetary damages, and destruction of infringing copies
• International copyright treaties, such as the Berne Convention, provide some harmonization of copyright laws across countries, but protection still varies by jurisdiction

Trademark and Media Branding

• Trademarks are words, phrases, symbols, or designs that identify and distinguish the source of goods or services
  • Help consumers identify the origin and quality of products, reducing confusion and search costs
  • Protect brand reputation by preventing others from using similar marks on related products or services
• Trademarks are crucial for media companies, as they help build brand recognition, loyalty, and value (Netflix, HBO, Disney)
  • Strong brands can command premium prices, attract talent, and generate merchandising and licensing revenue
• Trademark rights arise through use in commerce, although registration with the U.S. Patent and Trademark Office (USPTO) provides additional benefits (presumption of validity, nationwide priority)
• Trademarks can last indefinitely as long as they remain in use and retain their distinctive character
  • Failure to enforce rights against infringers or allowing a mark to become generic (aspirin, escalator) can result in loss of protection
• Trademark infringement occurs when someone uses a mark that is likely to cause confusion with an existing mark on related products or services
  • Factors considered include similarity of the marks, relatedness of the goods or services, and evidence of actual confusion
• Trademark dilution is a separate cause of action that protects famous marks from uses that blur or tarnish their distinctive quality, even in the absence of confusion (parody, criticism)
• International trademark treaties, such as the Madrid Protocol, allow for streamlined registration of marks in multiple countries, but protection still varies by jurisdiction

Patents in Media Tech

• Patents protect new, useful, and non-obvious inventions, such as technological innovations used in media production, distribution, and consumption
• Examples of patented media technologies include:
  • Video compression algorithms (H.264, HEVC) that enable efficient storage and transmission of digital video
  • Content delivery networks (CDNs) that optimize the delivery of media content to end-users based on location and network conditions
  • Digital rights management (DRM) systems that control access to and use of copyrighted media content (FairPlay, PlayReady)
  • User interface innovations, such as gesture-based controls or personalized recommendations, that enhance the media consumption experience
• To be eligible for a patent, an invention must be novel (not previously known or used), non-obvious (not an obvious variation of existing technology), and useful (having a specific, substantial, and credible utility)
• Patent applications must include a detailed description of the invention, enabling others skilled in the art to make and use it, as well as one or more claims defining the scope of protection
• Patents are granted by national patent offices (USPTO, EPO, JPO) after examination to ensure that the invention meets the requirements of patentability
• Patent rights last for a limited period, typically 20 years from the filing date, after which the invention enters the public domain and can be freely used by anyone
• Patent infringement occurs when someone makes, uses, sells, or imports a patented invention without permission from the patent owner
  • Remedies for infringement include injunctions, damages (lost profits, reasonable royalties), and attorney's fees in exceptional cases
• Patents play a crucial role in the media tech industry by incentivizing innovation, attracting investment, and providing a competitive advantage in the marketplace
  • However, they can also be used strategically to block competitors, extract licensing fees, or defend against infringement claims

Fair Use and Creative Commons

• Fair use is a legal doctrine that allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
• Provides a balance between the rights of copyright owners and the public interest in the free exchange of ideas and information
• Four factors are considered in determining whether a use is fair:
  • Purpose and character of the use (commercial vs. non-profit, transformative vs. verbatim)
  • Nature of the copyrighted work (factual vs. creative, published vs. unpublished)
  • Amount and substantiality of the portion used in relation to the whole work
  • Effect of the use on the potential market for or value of the copyrighted work
• Examples of fair use in media include:
  • Quoting a portion of a book or article in a review or critique
  • Using clips from a film or television show in a video essay or documentary
  • Creating a parody or satire of a copyrighted work (Weird Al Yankovic songs, Saturday Night Live sketches)
• Creative Commons is a non-profit organization that provides a set of free, easy-to-use copyright licenses for creators to share their work with the public
  • Allows creators to specify the conditions under which their work can be used, such as attribution, non-commercial use, or no derivatives
  • Provides a standardized way for creators to grant permissions and for users to understand what they can and cannot do with the work
• Creative Commons licenses are widely used in the media industry, particularly for user-generated content and open educational resources
  • Platforms like Flickr, YouTube, and Wikipedia allow users to license their content under Creative Commons, facilitating sharing and collaboration
  • Open educational resources (OER) are teaching and learning materials that are freely available online under a Creative Commons license, reducing barriers to access and promoting educational equity
• While fair use and Creative Commons provide some flexibility in the use of copyrighted material, they do not replace the need for permission in all cases
  • It is important to carefully consider the specific circumstances of each use and to seek legal advice when in doubt

Digital Rights Management

• Digital rights management (DRM) refers to technologies and practices used to control access to and use of digital media content, such as music, movies, e-books, and software
• Aims to protect the intellectual property rights of content creators and distributors by preventing unauthorized copying, sharing, or modification of the content
• Common DRM techniques include:
  • Encryption: scrambling the content so that it can only be accessed with a valid decryption key (CSS for DVDs, AACS for Blu-ray)
  • Digital watermarking: embedding a unique identifier into the content that can be used to track its distribution and identify the source of unauthorized copies
  • License management: requiring users to obtain a license that specifies the terms and conditions under which the content can be used (number of devices, duration of access)
• DRM is widely used in the media industry, particularly for digital distribution of music (iTunes, Spotify), movies (Netflix, Amazon Prime), and e-books (Kindle, Adobe Digital Editions)
  • Helps to prevent piracy and ensure that content creators and distributors are compensated for their work
  • Enables new business models, such as subscription-based streaming services or time-limited rentals
• However, DRM has also been criticized for its potential to limit consumer rights and innovation
  • Can prevent legitimate uses of content, such as making backups, accessing content on multiple devices, or using assistive technologies
  • Can be used to lock consumers into proprietary ecosystems or prevent interoperability between different platforms and devices
  • Can be circumvented by determined users, leading to an arms race between content providers and hackers
• Legal frameworks, such as the Digital Millennium Copyright Act (DMCA) in the U.S., provide some protection for DRM technologies by prohibiting the circumvention of access controls and the distribution of circumvention tools
  • However, these laws also include exceptions for certain uses, such as security research, accessibility, and preservation
• As the media industry continues to evolve, the role of DRM in balancing the interests of content creators, distributors, and consumers remains a complex and contentious issue

IP Challenges in the Digital Age

• The rise of digital technologies and the internet has created new challenges for intellectual property protection and enforcement in the media industry
• Digital piracy remains a significant problem, with unauthorized copying and distribution of copyrighted content (music, movies, software) costing the industry billions of dollars in lost revenue each year
  • Peer-to-peer file-sharing networks (BitTorrent) and cyberlockers enable users to share infringing content on a massive scale
  • Stream-ripping services allow users to download audio or video content from streaming platforms (YouTube, Spotify) without permission
• Social media platforms (Facebook, Twitter, Instagram) have become key channels for the distribution and monetization of media content, but also raise new questions about ownership, control, and liability for infringing content
  • User-generated content (UGC) often incorporates copyrighted material (music, images, video clips) without permission, raising fair use and licensing issues
  • Platforms' algorithms and advertising systems can inadvertently promote or benefit from infringing content, leading to calls for greater accountability and transparency
• Artificial intelligence (AI) and machine learning are increasingly being used to create and analyze media content, blurring the lines between human and computer authorship and challenging traditional notions of originality and creativity
  • AI-generated works (music, art, text) raise questions about copyright ownership and infringement liability
  • AI-based tools for content recognition and filtering (Content ID) can help identify and remove infringing content at scale, but also risk overblocking legitimate uses
• The global nature of the internet and the ease of cross-border data flows have made it more difficult to enforce IP rights across different jurisdictions and legal systems
  • Online intermediaries (ISPs, hosting providers) play a crucial role in the distribution of infringing content, but their liability varies widely depending on the country and the specific circumstances
  • International treaties (WIPO Internet Treaties) and trade agreements (USMCA) have sought to harmonize IP laws and strengthen enforcement measures, but gaps and inconsistencies remain
• As the media landscape continues to evolve, policymakers, industry stakeholders, and civil society groups are grappling with how to adapt IP frameworks to the digital age while balancing competing interests and values
  • This includes efforts to modernize copyright laws (EU Copyright Directive), reform intermediary liability rules (DMCA 512), and promote voluntary collaboration and best practices (Trusted Notifier Program)
  • It also involves ongoing debates about the role of IP in promoting or hindering innovation, competition, free expression, and access to knowledge in the digital environment