Law Commons^™

Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell

Faculty Scholarship

We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …

Defeating The Economic Theory Of Copyright: How The Natural Right To Seek Knowledge Is The Only Theory Able To Explain The Entirety Of Copyright’S Balance, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

The practice of copyright was once a perfect balance, reflecting the intent of the Founders to create an environment where new works were constantly made available to the public for consumption and use. The author would create a work, a user would buy a copy and be free to use it. Neither party had any right to interfere with the other’s activities. All of that changed with newer technologies, exposing the flaws both in our laws and the applications of them.

Copyright laws, on their face, prohibit many normal uses of copyrighted works by end users, such as making mixed …

Hachette, Controlled Digital Lending, And The Consequences Of Divorcing Law From Context, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

This article will look at the recent Hachette decision against the Internet Archive, analyzing how the court’s reliance on past authorities with insufficient context distorted their meanings. It will focus only on the controlled digital lending (CDL) aspect, not discussing the other claims in the suit or exploring the specific implementation of CDL by the Internet Archive (IA). Since CDL programs can vary widely, IA is better situated than others to identify missing context related to the analysis of the unique components of their efforts. And other libraries engaging in CDL should be able to easily see where their programs …

Research Exceptions In Comparative Copyright Law, Sean Flynn, Michael Palmedo, Andrés Izquierdo

Joint PIJIP/TLS Research Paper Series

Recent scholarship has highlighted the positive impact on scholarship of copyright exceptions for text and data mining and of more “open” exceptions for research uses. Until now, however, there has not been a collection and categorization of the world’s copyright laws according to the degree to which they provide exceptions for research. In this report, we release the results of the first such study. We show that every copyright law in the world has at least one exception to promote research uses of copyrighted works, but that such exceptions vary widely between countries. We conclude that the world’s exceptions for …

Submission To South African Parliament's Portfolio Committee On Trade And Industry - Re: Copyright Amendment Bill [B13b - 2017], Global Expert Network On Copyright User Rights

Testimony and Submissions

This submission is on behalf of the Global Expert Network on Copyright User Rights. The Network is an association of over 100 copyright academics from over 30 countries who conduct research and offer technical assistance to governments and stakeholders on the reform of copyright limitations and exceptions to promote the public interest.

Professor Sean Flynn, Counsel of Record, is a former Law Clerk for the late Chief Justice Arthur Chaskalson, is currently a Senior Research Fellow at the University of Cape Town IP Unit, and has been conducting research and leading academic projects in South Africa for over two decades. …

Perma.Cc And Web Archival Dissonance With Copyright, Paul D. Callister

Faculty Works

Harvard’s Perma.cc offers the solution to linkrot—the phenomenon that citations in academic journals to web materials disappears with the passage of time, resulting in “broken links” and disappearance of material from the Web.

This article will describe Perma.cc and outline the kinds of copyright issues that may arise, including heavy use of copyright statutes and caselaw. It will examine the kind of preservation use of copyrighted materials, with reference to fair use, and the library prerogatives as exceptions to the exclusive rights of authors of materials found on the Web. This analysis includes detailed analysis of “transformative use” and the …

"Fair Use" Through Fundamental Rights In Europe: When Freedom Of Artistic Expression Allows Creative Appropriations And Opens Up Statutory Copyright Limitations, Christophe Geiger

Joint PIJIP/TLS Research Paper Series

This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, …

Analysis Of Woods And Myburgh Comments On Cab, Jonathan Band

Joint PIJIP/TLS Research Paper Series

On June 16, 2020, President Ramaphosa of the South African Republic referred the Copyright Amendment Bill (“CAB”) back to the National Assembly on the grounds that he had reservations concerning its constitutionality. In his referral letter, President Ramaphosa stated that the CAB may be in conflict with international intellectual property (IP) treaties South Africa had joined or was planning to join. CAB opponents’ arguments that the CAB is incompatible with IP treaties are based largely on comments prepared by Michele Woods, Director of the Copyright Law Division of the World Intellectual Property Organization, in 2018. Woods prepared these comments as …

Visual Appropriation Art, Transformativeness, And Fungibility, Jasmine C. Abdel-Khalik

Faculty Works

As an intentionally flexible doctrine, fair use in copyright has a long history of ambiguity and criticism. While courts have developed various standards and considerations to give fair use some shape, key decisions have generally done so in the context of textual material. Likewise, the examples in Judge Leval’s seminal work on fair use involve textual material. His argument to assess the first fair use factor based on transformativeness has won the day. But in contrast to the textual examples, interpreting the meaning and transformation of visual works is rife with danger.

Recent appropriation art cases exemplify this danger and …

Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Leslie A. Street, David R. Hansen, Kyle K. Courtney

Briefs

No abstract provided.

Mashups And Fair Use: The Bold Misadventures Of The Seussian Starship Enterprise, Peter Menell, Shyamkrishna Balganesh, David Nimmer

All Faculty Scholarship

This amicus brief filed in the Ninth Circuit appeal of Dr. Seuss Enterprises v. ComicMix seeks to rectify and restore the balances underlying the Copyright Act of 1976 — particularly the interplay of the Section 106(2) right to prepare derivative works and the fair use doctrine. The District Court granted the defendants’ motion for summary judgment on the ground that OH THE PLACES YOU’LL BOLDLY GO! — the defendants’ illustrated book combining Dr. Seuss’s OH THE PLACES YOU’LL GO! and other Dr. Seuss books with Star Trek characters and themes — made fair use of the Dr. Seuss works.

Based …

Copyright: Preserve, Protect, And Promote Your Research, Supplemental Resources, Sue Ann Gardner, Paul Royster

Copyright, Fair Use, Scholarly Communication, etc.

Supplemental sources handed out during a presentation given on April 9, 2019 in the Cottonwood Room, East Union, University of Nebraska-Lincoln.

Topics: Copyright, Fair Use, Educational use, UNL Digital Commons.

Copyright: A Powerful Tool To Protect, Preserve, And Promote Your Research [Lunch And Learn Outline], Paul Royster, Sue Ann Gardner

Copyright, Fair Use, Scholarly Communication, etc.

Basic copyright: Know your rights; Copyright registration; Rights conferred; Length of term; Infringement

Licensing and contracts: Addenda to copyright that limit or extend your work; Permissions; Evaluating predatory journals; Creative Commons licenses; Gold Open Access/APCs

Fair use: How to fairly and legally use copyrighted materials in your own work; Plagiarism vs. copyright

Educational use: "Can I use this {image, quote, video clip, ...} in my {lecture, course materials, dissertation, ...}"

Copyright considerations, UNL Digital Commons: Publishing: books, journals; Green Open Access

Reasonable Appropriation And Reader Response, Laura A. Heymann

Faculty Publications

Since the U.S. Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., many courts have considered, when evaluating a claim of fair use in copyright, whether the defendant’s use of the plaintiff’s work is “transformative,” which the Campbell Court described as “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

In Cariou v. Prince, the Second Circuit shifted the focus of the analysis, both confirming that a work could be transformative even if it did not comment on the original work or its author and stating that the key to …

Fair Use And Social Media, John Dettinger

All Musselman Library Staff Works

This poster was created in a collaborative effort by Musselman Library’s Copyright Committee as part of a display for Fair Use Week 2018. The poster was intended to get viewers to think about the 4 factors of fair use in the context of two art projects that used social media photos: Yolocaust by Shahak Shapira and New Portraits by Richard Prince. It was also intended to get viewers thinking about the ways their social media content might get used beyond the original intention.

What Is (And Isn't) Fair Use In Music Sampling?, Devin Mckinney

All Musselman Library Staff Works

"Fair use" is a principle embedded in copyright law which permits -- under circumstances governed by a set of considerations commonly known as "the four factors" -- the borrowing of material from copyrighted works to create new works. Created for Fair Use Week 2018, this poster highlights the principle as it has applied to three controversial cases involving music sampling. For each case, the observer is given the essential facts; shown which of the four factors (represented by icons) were most central; and told the real-world outcome of each case. As an interactive display, the poster covered each "Outcome" column …

The First Amendment Implications Of Copyright's Double Standard, Raymond Shih Ray Ku

Faculty Publications

Beginning with a simple question, “What’s the big deal? It’s just entertainment,” this Article argues that copyright law restricts more than just entertainment - it restricts freedom of artistic expression. Despite copyright’s facial neutrality, courts have interpreted otherwise neutral rules to subject authors to a double standard for expression. Through a series of doctrinal contradictions and hypocrisies, copyright singles out “just entertainment,” imposing greater restrictions upon the freedom of those authors relative to all other authors. By discriminating against “entertainment,” the current doctrine violates its own fundamental tenet of non-discrimination. Moreover, by selectively restricting how authors may choose to engage …

R&D Spending And Patenting In The Technology Hardware Sector In Nations With And Without Fair Use, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

This working paper uses two common indicators of innovation to see how the technology hardware sector compares in countries with and without fair use. It illustrates that research and development spending by firms in these industries has been higher in countries with fair use, controlling for other firm- and country-level factors. It then shows more patents have been granted to the technology sector in countries that have adopted fair use, relative to patents granted to firms in the same industries in other countries, controlling for other country-level factors.

Globalizing User Rights-Talk: On Copyright Limits And Rhetorical Risks, Carys Craig

Articles & Book Chapters

Around the world, the focus of copyright policy reform debates is shifting from the protection of copyright owners’ rights towards defining their appropriate limits. There is, however, a great deal of confusion about the legal ontology of copyright “limits,” “exceptions,” “exemptions,” “defenses,” and “user rights.” While the choice of terminology may seem to be a matter of mere semantics, how we describe and conceptualize lawful uses within our copyright system has a direct bearing on how we delimit and define the scope of the owner’s control. Taking seriously the role of rhetoric in shaping law and policy, this Paper critically …

Fair Use Is Good For Creativity And Innovation, Bill Patry

Joint PIJIP/TLS Research Paper Series

Commenting on legal debates in other countries is usually bad manners. When, however, the debates concern a law from your own country, and that law is being misrepresented, it may be of service to set the record straight. The record, based on almost 300 years of Anglo-American case law and the experiences of those of us who apply fair use every day in our jobs, demonstrates that fair use is good for creativity and innovation, and in practice works well. You don’t have to take my word for it; if you are willing to put the time in, and have …

Top Tens In 2015: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The Supreme Court significantly affected the dynamics of patent litigation, holding that patent claim interpretation was not always reviewed de novo and that good faith belief that a patent was invalid was not a defense to infringement. The Federal Circuit potentially changed the approach to patent claim interpretation, holding that claims could be interpreted in light of the written description of the invention, even where the claim was not ambiguous. The Federal Circuit also addressed inducement of patent infringement, holding that it was not inducement to suggest consulting a physician who would likely prescribe an infringing treatment. The Federal Circuit …

Transformation, Copyright Infringement, And Fair Use, James Gibson

Law Faculty Publications

A small copyright decision out of the U.S. Court of Appeals for the Seventh Circuit last month has gotten a big reaction from copyright experts. The case is Kienitz v. Sconnie Nation, and it involves an entertaining set of facts.

In the 1960s, there was a young University of Wisconsin student named Paul Soglin, who had an anti-authoritarian streak. He led a number of demonstrations on issues ranging from civil rights to the Vietnam War. Indeed, one particular Vietnam protest, in May 1969, led to his arrest for failure to obey a police officer. That same protest became an annual …

Comments On Alrc Discussion Paper 79, Copyright And The Digital Economy, June M. Besek, Jane C. Ginsburg, Philippa Loengard

Faculty Scholarship

We provide these comments in connection with the Australian Law Reform Commission’s ongoing study of copyright and the digital economy, and in particular its request for comments on the recommendations put forth in its Discussion Paper 79 (June 2013). We focus on US law, and how the US experience bears on the possibility of an open-ended uncompensated "fair use" type exception in Australia, and other related issues.

The fair use doctrine in the US provides great flexibility, but that flexibility in many instances comes at the cost of certainty and predictability. We are not suggesting that reasonable judgments cannot be …

Ruling In Georgia State Copyright Case Is Mostly Good News For Libraries, James S. Heller, Paul Hellyer, Benjamin J. Keele

Popular Media

No abstract provided.

Book Review Of Reclaiming Fair Use: How To Put Balance Back In Copyright, Benjamin J. Keele

Library Staff Publications

No abstract provided.

Panel Discussion On Libraries And Best Practices In Fair Use, Andrée J. Rathemacher

Technical Services Department Faculty Publications

This report covers a panel discussion on the Code of Best Practices in Fair Use for Academic and Research Libraries, published in January 2012 by the Association of Research Libraries (ARL). The panel was held at the Massachusetts Institute of Technology (MIT) on March 23, 2012 and was hosted by the MIT Libraries. Panelists were Patricia Aufderheide of the Center for Social Media at American University; Brandon Butler of ARL; Kyle Courtney of Harvard Law School; and Jay Wilcoxson of MIT.

Canada And Israel: Cultivating Fairness Of Use, Meera Nair

Joint PIJIP/TLS Research Paper Series

Despite global trends to expand the ambit of copyright, Canada and Israel both show promise in cultivating the principal of fairness when exercising exceptions to copyright. Their journeys were led by their highest courts; each sought to shift the dialogue of exceptions from stringent allowance to robust application. Both countries began from the rigidity of fair dealing and considered expansion into the realm of fair use. This exploration is intriguing given that both countries show an uncanny similarity in terms of the manner by which their nation states came into being, their ensuing diversity of population, the mixture of common …

Paying It Forward: The Case For A Specific Statutory Limitation On Exclusive Rights For User-Generated Content Under Copyright Law, Warren B. Chik

Research Collection Yong Pung How School Of Law

This article examines user-generated content (“UGC”) and the significance of re-inventions in the context of an increasingly user-centric internet environment and an information sharing society. It will explain the need to provide a statutory limitation in the form of an exception or exemption for socially beneficial UGC on the exclusive rights under copyright law. This will also have the effect of protecting the internet intermediary that hosts and shares UGC. Nascent but abortive attempts have been made by Canada to introduce just such a provision into her copyright legislation, while some principles and rules have also emerged from various interest …

Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow

Faculty Publications

Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a …

Beyond Fair Use, Gideon Parchomovsky, Philip J. Weiser

Publications

For centuries, the fair use doctrine has been the main--if not the exclusive--bastion of user rights. Originating in the English courts of equity, the doctrine permitted users, under appropriate circumstances, to employ copyrighted content without the rightsholder's consent. In the current digital media environment, however, the uncertainty that shrouds fair use and the proliferation of technological protection measures undermine the doctrine and its role in copyright policy. Notably, the enactment of the Digital Millennium Copyright Act, which prohibits the circumvention of technological protection measures even for fair use purposes, has diminished the ability of fair use to counterbalance a copyright …