Intellectual Property for CME Providers – 2001

Rick Morris, J.D., LL.M.Associate Professor

R/TV/F and Communications StudiesNorthwestern University

r-morris@northwestern.edu

Definition of Copyright

Copyright arises when a work of authorship in any tangible medium of expression is fixed in a tangible form. This can be by writing, recording, digital storage or other means. Ideas, procedures, processes, systems, methods of operations, etc. are not copyrightable. 17 U.S.C.S § 102.

Requirement of Fixation

In order to be copyrighted, a lecture or presentation must be fixed in a tangible form. This would usually happen via recording, preparation of lecture notes, etc.

Ideas are not copyrightable

Ideas are not copyrightable; however, expressions of ideas are copyrightable. For example, the idea that a medical procedure might be effective is not subject to copyright. However, the lectures, medical journal articles, and other communications explaining the procedure are copyrightable. Procedures, processes, systems, etc., to the extent that they meet the legal requirements, may be patentable.

The Rights of a Copyright Owner

Once something is “copyrighted,” what rights does a copyright owner

have?

Rights in a copyrighted work§ 106 Exclusive Rights in Copyrighted works

Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize rights to do and to authorize any of the following: (summarized)(1) make copies of the copyrighted work(2) to prepare derivative works based upon the copyrighted work;(3) to distribute the copies of the copyrighted work to the public by the sale or other transfer of ownership, or by rental, etc.(4) to perform the copyrighted work publicly;(5) to display the copyrighted work publicly; and(6) in the case of sound recordings, to perform the work by means of a digital audio transmission. 17U.S.C.S §106.

Limitations on Copyright

There are a number of limitations on copyright, including provisions for libraries, for direct classroom teaching by a nonprofit educational institution, for cable companies under limited circumstances, for ephemeral recordings, etc. An important limitation for your consideration is Section 107, Fair Use.

§107 Limitations on exclusive rights: Fair use

Notwithstanding the provisions of Sections 106

and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered include -

The Four Factors of Fair Use

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;3) the amount and substantiality of the

portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the copyrighted work

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)

In an opinion by Justice O'Connor, the court held as not a fair use, the excerpt of only 300 words from the autobiography of Gerald Ford The Nation magazine used part of the book, the most important part, containing Ford’s thoughts when he pardoned Nixon. The Court found that The Nation had used, for blatant commercial purposes, important original thoughts of the author, and this use had a tangible effect on the market for the original and the defendant's claim of fair use was not allowed.

Los Angeles Times v. Free Republic, CV 98-7840-MMM (Dist. L.A. 1999)

U.S. District Court held that the fair use doctrine does not protect wholesale copying of newspaper article on the Internet, even if the website in question is used for public comment on the articles.

Derivative Work

One statutory definition that may be important for your consideration is the definition of a “derivative work.” Section 101 of the Act defines a derivative work as:

Definition of Derivative Works

…a work based on one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'.

Horgan v. Macmillian, Inc., 789 F.2d 157 (2d Cir. 1986)

The plaintiff was the estate of George Balanchine, the co-founder of the New York City Ballet in 1948 and the creator of a version of The Nutcracker that became famous as the "Balanchine Nutcracker." Macmillian had the right from the New York City Ballet to take pictures of the Ballet and publish them in a book. They used 60 pictures of the ballet. Infringement was found even though the number of pictures was fairly small and the medium was different (live dance vs. book).

Pacific & Southern Co. v. Duncan, 744 F.2d 1490 (11th Cir. 1984).

Pacific and Southern Co. (WXIA-TV) sued Carol Duncan (doing business as TV News Clips) for infringing on its copyrights by videotaping its news broadcasts and selling tapes to the subjects of the reports. TV News Clips claimed fair use of the material. The appeals court held that the service was not a fair use because the use was for commercial reasons.

New York Times v. Trisani, U.S. Supreme Court, June 25, 2001

Freelancers who sold material to the

New York Times successfully sued to protect their copyrights against re-publication in online databases. The Court found for the authors saying that the New York Times had not obtained permission for the re-publication of the work in an online mode.

New York Times v. Trisani, continued….

Importance for CME Providers: Make sure you have rights to material that you want to re-use on the Internet or otherwise re-purpose.

Yahoo! v. LICRA, Case 00-21275JF (N.D. Calif., June 7, 2001).

International laws and standards vary from country to country: Posting of content might subject a website to liability in another country. The leading cases involve posting information about holocaust materials, speech that the nation-state considers illegal, or libelous material. Courts in France, Germany, and Italy have all handed down rulings against speech that might be offensive, yet protected in the U.S. A U. S. Court has now taken up the matter of whether such a judgment can be enforced against a U.S. company in light of the U.S. Constitution’s protections for free speech.

Yahoo! v. LICRA, continued….

Importance to CME Providers: Issues in trans-national speech could be a significant problem for medicine-related websites.

A&M Records v. Napster, 2001 U.S. App. LEXIS 5446 (9th Cir. Feb 12, 2001),

Copyright infringement even if you don’t actually “touch” the material:

Napster provided a database and software that permitted users to exchange files by peer-to-peer networking. Although the infringing material never passed through Napster’s servers, the appeals court rejected Napster’s four arguments (including Fair Use) that they were not violating the copyright of various recording artists and their record companies.

Napster continued – the current situation

On remand, the lower court has tried to fashion a remedy that permits Napster to stay in business but Napster has been unable to fully comply with the court’s orders. The court has now ordered Napster shut down and announced a “Zero Tolerance Policy”

On 7/11/01 the District Court refused to permit Napster to resume file transfers even though Napster was able to demonstrate 99% reliability in blocking copyrighted music. The District Court is now requiring 100% reliable blocking.

Importance to CME Providers: Courts are serious about infringement on the internet even if they are still struggling to find equitable remedies that work.

Practice Management Information v. The American Medical Assn., 121 F.3d 516; 1997 U.S. App. LEXIS 20870; (9th Cir. Aug 6, 1997),

Cert Denied October 20, 1997.

The AMA developed the Physician’s Current Procedural Terminology (the CPT) and claimed a copyright in the system that defines over six thousand procedures and provides a five-digit code for each. The AMA permitted the government to use the CPT without royalty payments, so long as the government did not modify the system. The court found that even though a particular system becomes the “industry standard,” and is even mandated by the government, it can still retain its copyright because a competing organization could always develop a “better system.” 

Practice Management Information v. The American Medical Assn.,

continued….

Importance to CME providers: This case

was recently cited as precedent for the proposition that once an organization (or a person) has a copyright, even necessity is not sufficient to overcome the property rights. Get permission or otherwise have the right to use the material (i.e. bona-fide Fair Use).

Some Methods for Non-infringing Use

A person may use material 1) If it is not copyrighted (ie: has fallen into the

public domain, or is a government publication),

2) If they receive the consent of the copyright holder, the permission can be free or by negotiation of a fee.

3) If they find an exception for their use in the Copyright Act (Fair Use, others).

4) If they pay an agent of the copyright holder (performing rights societies, others).

Where to get permissions Direct from the publisher (often free

permissions) Direct from the author (usually free) Copyright Clearance Center (small fee)

www.copyright.com CANCOPY (Canada)

www.uniquename.com/cancopy ASCAP, SESAC, BMI www.ascap.com,

www.sesac.com, www.sesac.com

The Effect of the Digital Millennium Copyright Act on Websites

Title II of the Digital Millennium Copyright Act protects website hosts (the ISPs) from liability. The original content provider still remains liable for their content. However, another provision of the Act might be of interest to copyright holders. If a person believes that a website is misusing material to which they have the copyright ownership or management interest, they may request that the website’s ISP “take down” the offending material. These “notice and remove” provisions of the Act can be helpful.

Intellectual Property for CME Providers – other issues

The potential effect of “filtering” statutes on CME websites: Numerous statutes requiring “filtering” of Internet sites to protect children and others accessing the Internet from public places have been introduced. The Children Internet Protection Act (CIPA) passed in the last Congress and requires elementary and secondary schools and certain publicly funded libraries to provide filtering. While this probably does not yet affect CME providers, the developments in this area should be watched carefully.

Intellectual Property for CME Providers – other issues

Doctors and others can access CME education via online access. Some of this access might eventually be from some of the “protected” sites. The most common example of filtering software causing problems derives from the “list” of banned words. Such software usually blocks sites that use anatomical words such as “breast.” Your site could provide information on “breast cancer” and be blocked from some receiving computers located at protected facilities. Medical websites should be especially vigilant to watch the language and actual effect that future legislation might have on your functioning.

Good Practice #1      Get the copyright authorization that

you need.

It is always best to have written permission. However, as a practical matter, for most seminar usage, written permission is not sought. A person who is familiar with the way such seminars are run, and who prepares and delivers materials for such a CME event also, at a minimum, grants you a license to copy the materials and distribute them to participants. However, once you go beyond the basic, face-to-face presentation, it becomes very important to have a written document that gives you rights to use the copyrighted material as you require for your CME activities.

Good Practice #2Consider what other permissions you

need

Are you videotaping? You should get a

release for use of their image and likeness. Are you webcasting, or posting a copy to the Internet? Same advice.

Good Practice #3Keep it simple

Don’t frighten away your authors, faculty, or presenters. Use simple documents that give you the permissions you need without sounding like they are taking away all of the author’s rights. A good time to give the author a release to sign is when you are gathering their conflicts information – they are already signing things for you anyway.

Good Practice #4Protect your own hard work

Attach copyright notices at appropriate

places. Remind people if copying is not OK.

Post a usage policy on your website.  

Definition of Trademark

A trademark is any word, name, symbol, or device used by a person in commerce to identify and distinguish their goods from those sold by others. 15 U.S.C. § 1127

It can be a name (Chevrolet Trucks), slogan (“built like a rock”) or logo (Chevy logo)

Trademark Infringement

Similarity of appearance, sound, or connotation

Likelihood of Confusion (LOC) – whether consumers are likely to be confused by their general recollection of the marks

The Lanham Act §43a

Prohibits “misrepresentation” - false description of origin.

Gilliam v. ABC – too much editing of a Monty Python Show misrepresented the “product”

The Bette Midler Case

Copyright was technically complied with

But – it violated Ms. Midler’s Right of Publicity

A “passing off”

Good Practices for Trademarks

Get a signed release for the use of trademarks.

Other Issues

European Data Privacy DirectiveUS Privacy bills, “Financial Institution Privacy”HIPPA

COPPA – Child Online Privacy Protection Act will affect your website if you collect personally identifiable information from children under 13.

The End

Questions?

Contact Info: r-morris@northwestern.eduCopyright 2001, R. Morris