Journal of the Copyright Society of the U.S.A

This article presents a framework for analyzing conflicts of laws in cross-border copyright cases. It introduces methods for dealing with conflicts of laws, notably characterization, finding false conflicts, and tailoring remedies to defuse policy tensions. Most importantly, it explains how the international treaty system may come into play when such tensions arise in copyright cases. On that basis, it outlines solutions for conflicts of laws that concern copyright infringement and ownership. The article argues in favor of localizing any allegedly infringing act in a country only if the transaction including that act is incoming relative to that country. At the initial stage of suit, a court may base preliminary injunctions on copyright law common to the countries that constitute most of the markets or audiences that cross-border transactions are likely to prejudice. At the end of suit, the court should base monetary liability on the copyright law of a given country for actionable damages or gains that the transactions at issue have caused only in that country's local market or audience. This approach allows for predictably resolving conflicts of copyright laws in cyberspace, while it minimizes the extraterritorial application of such laws. The article then addresses conflicts of laws affecting the ownership of copyright. Where laws conflict with regard to vesting copyright, the article argues in favor of initially allocating rights consistently with the consensus of the parties generating the work at issue. Further, the article explains criteria for distinguishing between choice-of-law approaches, on the one hand, to rights transferred by contracts and, on the other, to contracts themselves. It also sorts out conflicts of law in cases of transfers that are made as a matter of law. Finally, the article explores basic tensions that arise between policies in hard cases of copyright conflicts. In the light of its preceding analyses, it delineates the respective limits of judicial, legislative, and treaty attempts to resolve such tensions.
This article discusses the cultural forces surrounding the passage of early American pre-Constitutional copyright laws. It argues that proponents of American copyright legislation expected it to create a new class of indigenous literati who would compose works that would put the fledgling American nation on cultural parity with the imperial powers of Europe.
An examination of the restriction against copyright lawsuits against state governments under the 11th Amendment, in the context of online copyright infringement, including proposals for new legislation.
In 1998, Congress enacted the Digital Millennium Copyright Act (DMCA) in the wake of intense pressure from the entertainment industry. Among other things, the DMCA criminalized circumventing the digital protection for a copyrighted work, selling devices that can circumvent this protection, and interfering with copyright management information. Like the Copyright Act, the DMCA created a system of statutory damages awarded based on the number of “violations.” While there has been a great deal of scholarship about the DMCA, the issue of damages has largely been ignored. As courts have begun to assess penalties for these new crimes, it is increasingly clear that the language of the DMCA provides insufficient guidance as to what constitutes a “violation” of the statute. Given that statutory damages are aggregated based on the number of violations, it is critically important that courts come to an agreement about what constitutes a discrete violation. Without any scholarship on this subject, however, courts thus far have undertaken this analysis alone. This article proposes a framework for assessing damages that employs valuable principles embedded in traditional copyright law and seeks to implement Congress’ intent in drafting the DMCA. Such a framework would recognize that not all “violations” are alike; where cases are unlikely to involve professional pirates, limiting doctrines must be applied to avoid excessive damage assessments that were not anticipated by Congress. Until the legislative branch acts to resolve the confusion wrought by § 1203, the judiciary must ensure that the delicate balance of copyright law is not upset by the uncertainty of calculating statutory damage awards.
When crawling the net, search engines' robots make a copy of each web page they visit. These copies are stored in the search engine's cache. In their search results, along with the link to the actual web page and a brief snippet from it, the main search engines provide a link to the cached copy as well. In Field v. Google the court held that the operation of Google's cache falls under the caching safe harbor of the Digital Millennium Copyright Act. Examining both the plain language of the statutory text and its legislative history, this paper shows why search engine caches are not covered by the DMCA caching safe harbor. Taking into account the Ninth Circuit analysis in Perfect 10 v. Amazon, this paper further suggests that the unavailability of a safe harbor does matter, since other defenses may fall short or involve higher litigation costs. In addition, this paper discusses whether an amendment of the DMCA safe harbor regime would be advisable.
The Digital Millennium Copyright Act inserts many complex and alien concepts into US copyright law. This article explores that enactment by positing four scenarios, and attempting to determine what the practical impact should be on each as a result of this omnibus amendment. The four are: parents' keeping pornography away from minors; copyright management information, from names of movie stars to book dust jackets; determining when an ISP sees a "red flag" that should alert it to copyright infringement; and attempting to pigeonhole digital watermarks into their appropriate category under the new law.
Fan subculture, in all its varied forms, brings with it distinctive examples of what may be dubbed "fan-based activities," a class of derivative works that confounds traditional copyright analysis. While ostensibly infringement, these activities expand the public's stores of knowledge and enhance the copyright holder's economic and creative interests. Drawing on the distinctive characteristics of those activities, this article advances an interpretive rights framework as a means for copyright law to better account for the unique attributes of "fanbased" works. Through the development of concepts like interpretive rights, creative teleology, and canonicity, and by applying those concepts to real-world examples of fan-based activities, this article seeks to fill in a crucial gap in traditional conceptions of copyright. With this framework, copyright law can account for and uphold fan-based uses that fulfill the dual purposes of copyright by furthering the interests of copyright holders and the public alike.
A tricky question emerges from the Supreme Court's decision in Campbell: If a parodic work, to use Justice Souter's words, shades into satire, is it no longer classifiable (and therefore no longer defensible) as a parody? Should it be regarded as having crossed a critical boundary for fair use purposes? Campbell suggests that it should, but there are actually compelling reasons, rooted in principles underlying the doctrine of fair use, why some types of parodic works that shade into satire should not be regarded as infringing. After examining the curious development of the parody/satire distinction within the law of fair use, this article draws on literary theory to propose a workable and more accurate taxonomy than that provided in Campbell, by means of which courts engaging in a fair use analysis can evaluate works that are hybrids of parody and satire.
The “Wittem Group” of copyright scholars has proposed a “European Copyright Code,” to “serve as an important reference tool for future legislatures at the European and national levels.” Because, notwithstanding twenty years of Directives and a growing ECJ caselaw, copyright law in EU Member States continues to lack uniformity, the Wittem Group’s endeavor should be welcomed, at least as a starting point for reflection on the desirable design of an EU copyright regime. Whether or not the proposed Code succeeds in influencing national or Community legislation, it does offer an occasion to consider the nature of the rights that copyright secures, and of the goals that a copyright system should serve.The following commentary will reproduce the provisions of the proposed Code, together with annotations of particular articles. The proposed Code contains five chapters: (1) Works; (2) Authorship and Ownership; (3) Moral Rights; (4) Economic Rights; (5) Limitations. The text provides neither for remedies, nor for voluntary formalities. It also does not address neighboring rights. The five chapters vary in ambition, from cautious synthesis to radical prescription. If some timidity characterizes the chapters addressing authors’ rights, the hallmark of the chapter on limitations is its temerity, displaying an impetus to break through the rigidity of the current EU and national systems of copyright exceptions in order to favor EU-wide uses of copyrighted works in which, in the drafters’ perception, the interests of third parties, including the public, outweigh those of the authors or copyright owners. Reaction to the Wittem endeavor may turn at least in part on one’s assessment of whether the drafters have correctly stated and/or weighted the third party interests.
The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance — both as protected work and as right — is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.One key problem of performance from copyright’s perspective is how to identify the creative elements that make a work of performance original and protectable, as distinguished from elements that make it a work (a fixed artifact). A major variant of this question involves authorship: who is sufficiently responsible for a work of performance to be deemed its author, and thus its default owner? In a world where works require dozens and even hundreds of people to complete them, this question will often be difficult to answer while both respecting creativity and recognizing economic imperatives. Another set of questions involves whether there are ways to recognize performers’ creative contributions without contributing to copyright’s bloat, and how to assess claims of infringement in a performance context when the alleged copying isn’t exact. This article addresses these puzzles of performance, arguing that manageability rather than creativity is generally the basis for the rights allocations and distinctions copyright law makes. The recent controversy over the film Innocence of Muslims, along with other instances in which subjects of audiovisual works claimed copyright in those works, demonstrate the limited role played by creativity in copyright law.
The creation and growth of online fantasy sports games has resulted in an interesting struggle between the First Amendment rights of sports fans and sports players' right of publicity. Fantasy sports websites state that they have a constitutional right to use players' names in their online programs which allow customers to build their own fantasy teams. Professional sports leagues argue that they, and the players, have spent great time and money in building the names and public images of professional athletes, and deserve to be compensated through state right of publicity laws. Currently courts are left with choosing between these two extremes - either allow fantasy sports websites to freely use the names and statistics of the players, or force them to pay for licenses at whatever cost the sports leagues set. This article examines previously proposed methods of dealing with copyright laws, and how these ideas can be applied to the conflicting rights surrounding fantasy sports. It attempts to find a middle ground where fantasy sports websites cannot be barred from using players' names, but players are still allowed to be justly compensated for the effort and expense that goes into making their names famous.
The history of the work made for hire doctrine under copyright law, and an analysis of its applicability to the music industry, including sound recording copyrights.
One of the central principles of copyright law is that an author may prevent others from using her expression but not her ideas. Known as the idea/expression dichotomy, this is how copyright law gives authors an incentive to create new works while ensuring that the public may continue to use and build on the ideas underlying those works. In practice, however, distinguishing expression from idea often proves quite difficult, and nowhere is this difficulty more apparent than in cases involving fictional facts. Fictional facts are the building blocks that make up a work of fiction. Seen from the author’s perspective, they are unique creations that define the plot, characters, and setting of the work and are therefore deserving of protection. To the audience, however, these same fictional facts are the work’s abstract ideas and should be available for anyone to repurpose. Several important copyright decisions from the past fifteen years have centered on fictional facts, including disputes over a Star Trek viewers’ guide, a book of Seinfeld trivia, and, more recently, a Harry Potter encyclopedia. Yet little has been written on the doctrinal problems that fictional facts present or possible solutions that courts might implement.To begin, this article offers an overview of how fictional facts are typically used and why both authors and audiences believe they are worth fighting over. It then explores the status of fictional facts under current copyright law. One decision in particular, Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., made a lasting impact when the Second Circuit improperly introduced originality into its analysis of the idea/expression dichotomy. The article concludes with a proposal for a fictional-fact-specific infringement test that tries to balance author incentive and the public interest. In contrast to fair use, which provides an affirmative defense to infringement claims, this revised test considers whether copying fictional facts constitutes infringement in the first place.
The fair use doctrine plays a critical role in copyright law, protecting certain socially valuable uses of a copyrighted work against claims of infringement so as to maintain the balance between the author’s limited monopoly and the general public good. This article examines a relatively recent and increasingly problematic trend in fair use jurisprudence: courts’ tendency to decide whether a copyright defendant has made a fair use of the plaintiff’s work based in part on whether the defendant has acted in “bad faith.” Courts use the term “bad faith” to encompass a wide range of conduct weighing against a finding of fair use. In some cases, the term refers to the fact that the defendant obtained an unauthorized copy of the copyrighted work. Elsewhere, it refers to the fact that the defendant did not first request permission from the plaintiff to use the copyrighted work. In yet other cases, the defendant’s bad faith is premised on a failure to acknowledge the plaintiff as the original author. Some courts have even suggested that a defendant acts in bad faith when she could not have “reasonably believed” that her use of the copyrighted work was fair. As the article explains, there is no historical, legal, or logical reason that these or any other supposed measures of bad faith should play a role in the fair use analysis. The bad faith inquiry does not serve the central goal of copyright — to increase public access to new works — and in fact does much to impede this goal. It also needlessly confuses fair use with other areas of law, makes copyright litigation more costly and less predictable, and undermines copyright’s built-in First Amendment protections. Yet bad faith has persisted as an element of fair use for the past several decades, largely because of a failure to appreciate either the lack of historical or legal basis for this doctrinal mistake or its consequences. In an effort to correct this misunderstanding, the article offers the first in-depth exploration of both the historical origins of the bad faith inquiry and the many reasons courts should drop all considerations of bad faith from fair use.
-The Impact of Google Book Search on Most-Affected Publishers' Revenue Growth Comparing Period from 2001 to 2004 with Period from 2005 to 2008
-The Impact of GBS on Most-Affected Publishers' Revenue Growth Comparing Period from 2001 to 2004 with Period from 2005 to 2008
-The Most-Affected Publishers' Revenue and Profit Growth Compared to GDP and Retail Sales Growth Comparing Period from 2001 to 2004 with Period from 2005 to 2008
Google Book Search (GBS) has captured the attention of many commentators and government officials, but even as they vigorously debate its legality, few of them have marshaled new facts to estimate its likely effects on publishing and other information markets. This Article challenges the conventional wisdom propounded by the U.S. and German governments, as well as Microsoft and other competitors of Google, concerning the likely economic impact of mass book-digitization projects. Originally advanced by publishing industry lobbying groups, the prevailing account of mass book-digitization projects is that they will devastate authors and publishers, just as Napster and its heirs have supposedly devastated musicians and music labels. Using the impact of GBS on the revenues and operating incomes of U.S. publishers believing themselves to be the most-affected by it, this Article finds no evidence of a negative impact upon them. To the contrary, it provides some evidence of a positive impact, and proposes further empirical research to identify the mechanisms of digitization’s economic impact. The debate surrounding the GBS settlement is important to students, writers, researchers, and the general public, as it may decide whether a federal appellate court or even the U.S. Supreme Court allows the best research tool ever designed to survive. If the theory of Microsoft and some publishing trade associations is accepted, the courts may enjoin and destroy GBS, just as Napster was shut down a decade ago. The Article aims at a preliminary estimate of the economic impact of mass digitization projects, using GBS as a case in point. It finds little support for the much-discussed hypothesis of the Association of American Publishers and Google’s competitors that the mass digitization of major U.S. libraries will reduce the revenues and profits of the most-affected publishers. In fact, the revenues and profits of the publishers who believe themselves to be most aggrieved by GBS, as measured by their willingness to file suit against Google for copyright infringement, increased at a faster rate after the project began, as compared to before its commencement. The rate of growth by publishers most affected by GBS is greater than the growth of the overall U.S. economy or of retail sales. Thus, the very publishers that have sued Google have seen their revenues grow faster than retail sales or the U.S. economy as a whole (measured by gross domestic product). This finding parallels some of the research that has been done since the Napster case on the economic impact of peer-to-peer file sharing on sales of recorded music. Future studies may provide a more granular estimate of the economic impact of frequent downloads or displays of pages of particular books on the sales of such books.
The genius - some would say the evil genius - of the proposed Google Books settlement was the way it fuses legal categories. The settlement raised important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement was more than the sum of the individual issues it raised. These “issues” were really just different ways of describing a single, overriding issue of law and policy - a new way to concentrate an intellectual property industry.In this essay, I argue for the critical importance of seeing the settlement all at once, rather than as a list of independent legal issues. After a brief overview of the settlement and its history (Part I), I describe some of the more significant issues raised by objectors to the settlement, focusing on the trio of class action, copyright, and antitrust law (Part II). The settlement’s proponents responded with colorable defenses to every one of these objections. My point in this Part is not to enter these important debates on one side or the other, but rather to show that the hunt to characterize the settlement has ranged far and wide across the legal landscape.Truly pinning down the settlement, however, requires tracing the connections between these different legal areas. I argue (Part III) that the central truth of the settlement is that it used an opt-out class action to bind copyright owners (including the owners of orphan works) to future uses of their books by a single defendant. This statement fuses class action, copyright, and antitrust concerns, as well as a few others. It shows that the settlement was, at heart, a vast concentration of power in Google’s hands, for good or for ill. The settlement was a classcopytrustliphant, and we must strive to see it all at once, in its entirety, in all its majestic and terrifying glory.
Although there are legal provisions in the Chinese laws which could be called “safe harbor” for service providers, they are considerably incomplete in comparison to their counterparts in the Digital Millennium Copyright Act (DMCA). Moreover, they are rested on the Chinese civil law tradition, different from the common law tradition underlying the DMCA. The Chinese general civil liability rules, in particular the joint liability doctrine, proves more than friendly to copyright holders, infecting the multiple variations of safe harbor protection with considerable malleability. Under the pressures from copyright holders, courts are showing willingness to cut back on them from time to time. The purpose of this paper is to look into the two major variations of safe harbor protection for service providers that limit their liability relating to online material. My focal point of interest is on the level of knowledge required for blaming a service provider, and the legal significance of a service provider’s awareness of specific web addresses of infringing online material in imputing liability to that provider.
In the current online environment, more flexibility in the field of copyright limitations is a legislative necessity rather than a mere regulatory option. From a social and cultural perspective, the web 2.0, with its advanced search engine services, interactive platforms and various forms of user-generated content, is central to the promotion and enhancement of freedom of expression and information. From an economic perspective, it creates a parallel universe of traditional content providers relying on copyright protection, and emerging internet industries whose further development depends on robust copyright limitations. In particular, the newcomers in the online market – social networking sites, video forums and virtual worlds – promise a remarkable potential for economic growth that have already attracted the attention of the OECD.Current EC copyright law, however, is likely to frustrate these opportunities for cultural, social and economic development. In contrast to US copyright law, flexible elements, such as an open-ended fair use provision, are sought in vain. Instead, the EC Copyright Directive 2001/29 encourages the further restriction of precisely-defined statutory exceptions in the light of the EC three-step test that has been modelled on similar international provisions. Against this background, the time is ripe to debate the introduction of an EC fair use doctrine that would open up the current restrictive system, offer sufficient breathing space for social, cultural and economic needs, and enable the EC copyright infrastructure to keep pace with the rapid development of the Internet. For this purpose, the differences between the continental-European and the Anglo-American approach to copyright limitations (section I), and the rationale of fair use legislation (section II) will be discussed before embarking on an analysis of current problems that have arisen in the EC (section III). On this basis the conceptual contours of an EC fair use doctrine will be discussed (section IV). Drawing conclusions, the international dimension of the proposed fair use initiative will be considered (section V).
This article contributes to the revision of thinking on the origin of author’s copyright by examining the first grant of a printing privilege to an author in the sixteenth century, not with a focus on its value to the author, the humanist scholar Thomas Linacre, but rather on its value to Henry VIII’s regime. The privilege, which applied to a Latin grammar, served Henry VIII’s initiative to foster humanist scholarship in England. The privilege represents early recognition of the power of monopolies in printing rights to incentivize the creation of particular texts. The printing privilege arose when a convergence of factors began to change the economics of book printing, as both supply and demand for printed books increased. Humanist luminaries, like Erasmus and Linacre, created demand for new content from living authors. Yet, the patronage system that largely compensated these authors drove down the prices they were able to get for the sale of their manuscripts to printers and burdened them with obligations to patrons. A close-grained history of Linacre’s privilege, and new evidence in support of dating the privilege before 1517, suggest that Henry VIII used the privilege as a tool, costless to the fisc, to make the publication of Linacre’s Latin grammar textbook more profitable to the author, and thereby to promote an English brand of the New Learning that would increase the prestige of the crown. The advancement of learning has been at the core of Anglo-American copyright since its origins.
This paper analyzes J. D. Salinger's recent suit against Fredrik Colting for infringing Salinger's copyright in, 'The Catcher in the Rye' and its character Holden Caulfield. The case has been widely noticed because the Second Circuit extended to copyright cases a heightened standard for injunctive relief that requires evidence of irreparable harm. Meanwhile, however, the court's certainty that Salinger should prevail on the merits has escaped much critique. To begin, I argue that the district court misread Colting's novel by mistaking his metafiction for a conventional sequel. I suggest two practical litigation strategies to avoid this outcome. Next, I fault the Second Circuit for adopting this error and further asserting that Colting's novel irreparably harmed Salinger by invading his "right not to speak." This rhetoric, if taken seriously, distorts the meaning of Section 107 of the Copyright Act and undermines the policy of the fair use defense. Paradoxically, it also enables district courts to issue injunctive relief even though plaintiffs have no evidence that an alleged infringement is causing them commercial harm.
The fair use doctrine is famous for its uncertainty. As lawyers who counsel clients making fair use of copyrighted materials, we have experienced the frustration caused by fair use’s unpredictability on many occasions. In this Essay we discuss a more positive piece of the story: the development of Statements of Best Practices in Fair Use for various user communities. The Best Practices, pioneered by Peter Jaszi and Patricia Aufderheide, have helped demystify fair use for specific user groups without unduly limiting the flexibility that gives the fair use doctrine its strength, and have helped lawyers and gatekeepers understand important user norms.
This Article explores a wide range of issues rooted in the copyright-and-technology interface with the aim of drawing a clearer picture in this regard for policy makers and legislators. Based upon an historical examination of copyright law, this Article considers, in particular, how copyright rule-making at the international and national levels has been, and is being, shaped by technological development. More importantly, this Article expounds upon the ramifications of five lessons for the potential overhaul of copyright law amid growing complexities in striking an optimal balance of competing interests.
Private ordering is increasingly playing a role in determining the scope of intellectual property rights both as a de facto and a de jure matter. In this essay, I consider the best practices movement and its efforts to use private ordering to limit the scope and enforcement of copyright law. Best practices statements in the copyright context establish voluntary guidelines for what should be deemed fair uses of others’ copyrighted works. I identify some of the de facto successes of the best practices movement, but also raise a number of concerns about the project. As I have discussed elsewhere, the incorporation of industry practices and social norms into the law in the context of intellectual property can be problematic. The best practices statements have limited value for setting a standard for appropriate uses because they are very one-sided, having been developed without input from the content owners whose work is likely to be used. This one-sided approach to custom is misguided as a normative matter, but may also backfire because courts are more likely to incorporate the more restrictive and dominant practices that promote IP holders’ rights. Not only are the best practices statements’ call for incorporating unrepresentative customs problematic, but the statements can also be critiqued on other grounds. First, the statements are misleading about the parameters of fair use law – a fact which is particularly concerning given that the intended audience is not composed of legal professionals. Second, some of the statements propose overly constraining limitations on fair use that will limit what can be made both as a de facto and de jure matter. The essay concludes with some suggestions for ways that the best practices project could be redirected in positive ways that support law reform and the defense of reasonable fair use claims without risking the downsides of the current statements.
This Essay uses a personal anecdote to highlight a gap in current copyright law. Under current copyright doctrine, companies sued for direct copyright infringement are not generally able to assert the fair use arguments of their customers. Thus, for example, a photocopy shop sued for assembling course packs cannot argue that it is facilitating the fair use privileges of its student customers. This Essay argues that this approach is mistaken because it fails to take adequate account of the important role companies can play in practically enabling the fair use privileges of their customers. To fill this gap, this Essay proposes that copyright law recognize a new defense of fair use enablement.
American copyright professionals may be so accustomed to the current domestic regime of statutory damages that it may come as a surprise to learn that very few countries in the world have anything comparable. Our survey of 177 World Intellectual Property Organization member states reveals that the United States is one of only 24 nations that has a statutory damage regime. Of these 24 countries, the vast majority have developing or emerging economies and are not known for having strong copyright industries.The United States was the first country to adopt range-based statutory damage rules for copyright infringement, and it was the only country in the world that had them for many years. Several countries that have adopted statutory damage regimes in recent years have done so under the pressure or influence of the United States. The United States both encourages and mandates the adoption of statutory damage rules through bilateral and regional trade agreements and through the Special 301 review process. Even after countries adopt statutory damage rules, they sometimes face continued criticism from the United States and domestic interests for placing sensible limitations on statutory damages not present in U.S. law.This Article demonstrates the rarity of statutory damages and contrasts the U.S. statutory damages rules with those of other countries, where they exist. It argues that the current method of proliferating statutory damages is troubling because it inhibits the freedom of other countries to decide for themselves whether and how to impose statutory damages in a way that meshes with their respective civil legal regimes. Such limitations also deprive countries, including the United States, of the benefit of statutory experimentations that eventually may lead to a more precise calibration of the balance between effective and just outcomes. Part I explains the methodology and findings of our global survey of statutory damages provisions. Part II examines various U.S. efforts to spread statutory damages around the world through bilateral and regional trade agreements. It also explains how increasingly specific requirements in those trade agreements restrict the ways that other countries can tailor the remedy to suit their interests. Part III highlights the ways in which some countries have succeeded in providing some constraints in their statutory damage provisions that are not present in the United States. Part IV examines the emergence of statutory damages requirements in recent multilateral trade agreements.
This essay is part of a project intended to help reclaim copyright for readers, listeners, and viewers. A system of copyright protection makes little sense unless it is designed to encourage the use and enjoyment of the works it induces authors to create and publishers to disseminate. I argue that a clear-eyed examination of copyright's history reveals that solicitude for readers and members of the audience is, in fact, deeply encoded in copyright's DNA. Recently, readers' interests have faded in apparent importance in the copyright scheme in ways that have unbalanced the copyright system, and undermined public support for copyright law. In response to growing criticism of copyright, some of copyright law's most ardent supporters have insisted that users have no rights, should have no rights, and have never had rights in the copyright scheme. That approach, I suggest, is making the problem worse, not better. Copyright seems out of whack because it has forgotten its most important constituents. In this essay, I take a series of very small baby steps in the direction of recognizing rights and liberties within the copyright system for readers, listeners, viewers and other members of the copyright audience.
How may copyright laws allow for creatively transformative uses of works that they protect, for example, in parodies, in adaptations of novels to film, or in appropriation art? To start, this article focuses on German case law which, to avoid blocking such transformative uses, liberalized infringement analysis, as well as the exception for quotation, while taking account of the constitutional right to freedom of expression. Further, the article asks whether any overriding approach to this question, such as the German courts took in the case law just broached, should be subject to the criteria which the TRIPs Agreement sets out for copyright limitations and exceptions. It responds in the negative, rather arguing that neither the idea-expression distinction nor constitutionally grounded constructions of copyright limitations or exceptions ought to be subject to these TRIPs criteria. At the same time, the Wittem project for codifying European copyright law is critiqued for its excessive reliance on TRIPs criteria in constraining limitations and exceptions. Finally, the article proposes a common-sense approach to simplifying infringement analysis and remedies in order to make copyright law less chilling for creators.
This paper examines copyright in online news through an economic perspective of copyright law. The paper asks: To what extent are news publishers entitled to reap any economic benefits from the online distribution of news? In its analysis, this paper distinguishes between different types of news uses and relies upon the following three branches of law: (1) the fair use doctrine, (2) the hot news doctrine, and (3) laws related to the retransmission of copyrighted programs by cable television.
This short paper reflects on the emergence of codes of best practices in fair use, highlighting both the relationship between the best practices approach and an institutional perspective on copyright and the relationship between the best practices approach and social processes of innovation and creativity.
The fair use doctrine may no longer facilitate the ultimate goal of copyright law, which is to promote production and dissemination of arts and sciences. The high degree of uncertainty stemming from the doctrine is creating a chilling effect and causing users to avoid exploiting the work in ways which the law seeks to encourage under fair use. To address this uncertainty and its chilling effect on educational use, we drafted a Code of Fair Use Best Practices for the use of copyright materials in Higher Education Institutions (hereinafter – HEI) in Israel. We formed a coalition of all the higher education institutions in Israel and negotiated a shared understanding of fair use among the partnering institutions. This paper provides a snapshot of the process of building the coalition and drafting the Code of Fair Use Best Practices. The initiative was inspired by the visionary initiatives of Patricia Aufderheide and Peter Jaszi, who worked with various communities in the U.S. to devise particular codes of Fair Use Best Practices. We also carefully examined the lessons from the failure of past American projects, such as the CONFU. We thus had ample source material for a comparative analysis of copyright law, fair use, and the different strategies of legal activism for social change. We begin by describing our vision for the educational use of copyrighted materials; our view of the purpose of copyright and fair use doctrine; and our view of the interaction between law and social norms. In Part II, we analyze the legal regime that pertains to educational use of copyrighted materials in Israel. Part III describes the process of consensus building among the different stakeholders. In Part IV, we present the major principles of the Code and reflect on their implications for the development of Fair Use doctrine. The ongoing debate regarding the appropriate mechanism for defining permissible uses is often phrased as a choice between rules and standards. While specific exemptions would provide a high level of certainty, they may prove to be too narrow and rigid and would not facilitate adaption to changes in the economic, social and technological environments. Standard would provide flexibility but too little certainty, as courts would have sole discretion in holding, retroactively, whether a use was fair. The emerging communities that deliberate on fair use in a contextual manner offer a third way. Fair use, like ethical dilemmas, involves deliberation. If we develop social institutions to facilitate such deliberation, we may bridge a gap between legal standards and social norms, and may enrich the fair use analysis with the contextual meaning it deserves. A process of consensus building fits well with this insight, since consensus building reflects an attempt to create a community with shared language that will be able to develop an ethical praxis, step by step.
The principle of fair use in American copyright law has seen a shift over the last 50 years from a doctrine delineating the outer limits of non-infringing referential use of copyrighted material to a catch-all affirmative defense to prima facie copyright infringement. This has invited confusion over both the scope and the justifications of fair use. This article examines the history of fair use, argues that the original justifications for the doctrine are still relevant and categorizes the various flavors that "referential use" takes today.
Recently, academics have forecast the existence of reliable patterns from the emerging trends in the fair use cases but have been unsuccessful in providing practitioners and courts with a dependable, concise statement of such patterns for any category of uses. The problem has been that in order to find the pattern, one must focus on the items that are the subjects of the litigation, rather than the language of the cases themselves. Our law firm has developed a library of non-fiction films, books, and other works that were the subject of various litigations, beginning with the two-volume biography of George Washington, which was the subject of Folsom v. Marsh, through the latest cases as they are being filed. An unavoidable pattern popped out of the pages and off the screen. This pattern, supported by a close reading of the cases, eventually became a safe harbor for fair use in non-fiction works and the subject of this Article.Without necessarily intending to do so, the courts have created a de facto safe harbor for those seeking the shelter of fair use when creating non-fiction works such as documentary films, non-fiction books, news reporting, and satirical material. This Article is designed to define that safe harbor, to demonstrate the rather large area that surrounds the safe harbor, to show practitioners how to use the safe harbor to predict results for works such as documentary films and non-fiction books, and to give courts a supplement to the statutory regimen for fair use.The notion that anything to do with fair use could be considered “safe” was a departure from decades of legal commentary until Professor Pamela Samuelson, building on previous academic articles, suggested that patterns existed within clusters of cases dealing with the same subject matter. For the most part, law review articles have bemoaned the confusion surrounding the fair use doctrine and, after examining the Copyright Act’s four-factor test, have usually concluded that Congress should amend the fair use doctrine of the Copyright Act. Nothing in this Article is intended to recommend change in the four factor test of the Copyright Act. Rather, flowing from Judge Pierre N. Leval’s influential concept of “transformative uses,” the safe harbor simplifies the statutory four-factor test in non-fiction works that lie at the heart of the fair use doctrine.This Article also introduces the concept of a fair use spectrum, which practitioners can use to assist clients in making their uses safer if they intend to seek the protection of the fair use doctrine. In the preparation of this Article, the safe harbor analysis was tested against the results in all cases decided by the courts that deal with documentary films and nonfiction books since January 1, 1978. In order to find these cases, research was conducted to replicate the methodology used by Professor Barton Beebe in his ground-breaking analysis of all fair use cases, with the addition of a few other search tools. The process is set out in more detail in Appendix I to this Article. This search uncovered nearly six hundred opinions between January 1, 1978 and December 31, 2011. Cases dealing with subject matter other than non-fiction works, in the broadest sense, were eliminated. Eight fair use cases from before 1978 were also added, reaching a total of eighty-two cases. Each of these cases was read and charted according to the courts’ analyses and then analyzed according to the safe harbor approach set forth in this Article. The outcome in every case matched the outcome using the statutory four-factor approach and occasionally revealed flaws in the court’s logic, if not in the end result. A chart with both the statutory analysis and the safe harbor approach is set forth as Appendix II to this Article.Part I of this Article will briefly explain the fair use doctrine and how it fits into the grander scheme of U.S. copyright law. Part II will introduce the concept of a safe harbor for non-fiction works, describe its basis in established case law, and explain how to analyze whether a documentary film, non-fiction book, or similar work falls within the safe harbor of fair use. Part III will review various arguments that are repeatedly raised by litigators and addressed in written opinions, but in reality change nothing. They are called “distractions” because of their neutral impact on the actual outcomes of the cases. Part IV will introduce the concept of a fair use spectrum, and will discuss cases that are in the waters around the safe harbor, but are nevertheless fair use. Part V will demonstrate how the safe harbor test identifies a category of uses in non-fiction works that are not fair use. Finally, Part VI relates a case study in which the fair use spectrum was used in practice to help a filmmaker land in the safe harbor. This case study involves the film Expelled, which became the subject of Yoko Ono Lennon v. Premise Media Corp.This Article provides a short-hand method for determining fair use of assets in non-fiction works. Hopefully, other commentators will examine the actual material involved in clusters of cases dealing with other subject matters and find similarly reliable patterns.
The operational premise of this Article is that a comparison of economic globalization trends and philosophies may provide useful insights into the intellectual property harmonization process, exposing both its present short-comings as well as future directions. Globalization may serve as a both a descriptive paradigm for IPR harmonization and a predictive tool for future problems and solutions. Given the trade related nature of intellectual property harmonization since TRIPS, economic globalization processes appear to be the closest analogue to international harmonization processes. In determining whether the intellectual property equivalent of globalization -- IPR harmonization -- is a positive future trend in international law or a harmful mirage on which too much time, money and effort is wasted, the Article explores the trends and problems of globalization to their IPR corollaries. Among the trends examined are regionalism, the increasing empowerment of supranational agencies, the erosion of domestic control over local policy, and the cultural backlash that has developed, represented by inter alia current debates over the role of intellectual property protection for traditional knowledge and other works of indigenous creativity and innovation and the cultural divide on the Internet. I contend that a close examination of present harmonization efforts in areas such as IPR enforcement and moral rights demonstrates that much IPR harmonization is a mirage, which fails to establish effective standards. I conclude by suggesting that we must “democratize” the IPR harmonization process to promote cultural inclusiveness so that the standards achieved represent an actual international accord. Without such efforts, harmonization will remain a phantom ideal.
Historically, the right of first publication provided the copyright owner with a virtually exclusive right of market entry. Courts and scholars have traditionally found this right exhausted for all markets upon entry into any single market. A reexamination of the history and development of the right indicates instead that it often protected successive market entries. This article argues for a limited right of first online publication. Like the traditional right of first publication, it would generally trump a fair use defense of the unauthorized dissemination of a work online, even if that work had been previously published in print. The established publication inquiry considers the scope of prior publications, and the owner’s contractual relationships, to determine whether the right of first publication has been exhausted. Networks theory sheds light on the difference in scope between print and online publication. The dissemination of print books occurs in a conserved spread: while the physical embodiment of the content moves from point to point, the total number of copies in the network remains stable allowing the owner to correctly assess the risks inherent with market entry. Online dissemination occurs as nonconserved spread: any holder of a digital copy can instantly disseminate it to any point online while retaining the original. The differences are significant enough that print dissemination should not be held to exhaust or abandon the right of first online dissemination. Courts are often called on to apportion rights between initial copyright owners and transferees when innovations open unforeseen markets for works of authorship. An examination of these transactions indicates that the right to enter the new market generally remains with the prior owner. This tendency supports the argument that disseminating a work in a restricted format does not exhaust the right of first publication in new markets. Copyright law will need to adapt to multiple format changes over the effective life of a copyrighted work. Recognizing the right of first publication as a rule governing transitions into new formats will provide courts, copyright owners, and technology innovators with firm rules allowing the copyright owner to decide if and when to adopt a new technology. Transitional technology will likely emerge with increasing frequency in coming years. Now is the time to think seriously about implications for owners with the long view. A right of first online publication would preserve space for the inter-format fair use that is an important element of the bargain between copyright owners and the society, while protecting the ability of owners to consider the right time to make intra-format shifts and enter new and riskier markets during the protected life of the work.
This article explores a developing technology-the creation of digital replicas of individuals, both living and dead, as well as the creation of totally imaginary humans. The article examines the various laws, including copyright, sui generis, right of publicity and trademark, that may be employed to prevent the creation, duplication and exploitation of digital replicas of individuals as well as to prevent unauthorized alteration of existing images of a person. With respect to totally imaginary digital humans, the article addresses the issue of whether such virtual humans should be treated like real humans or simply as highly sophisticated forms of animated cartoon characters.
The doctrine of free trade dominated Victorian policy discussions for decades - including those about copyright law. But the application of free trade doctrine to copyright policy discussions was not at all straightforward. Professed free trade supporters disagreed profoundly on the question of copyright. Some saw it as an illegitimate restriction on trade, while others viewed it as a mode of enforcing a natural property right. Why did the application of free trade doctrine to copyright policy result in such widely divergent positions on the proper scope and purpose of copyright law? This article attempts to answer that question, focusing on the 1878 Royal Commission on Copyright as illustrative of the extent to which free trade doctrine failed to guide copyright policy consistently. The complex relationship between free trade and copyright is a powerful example of the extent to which political ideologies are not predictive of individual views on the optimal scope of
It is well known that the origins of the Berne Convention for the protection of Literary and Artistic Works (1886) lie in an international invitation issued by a French association, the Association Litteraire Internationale (ALI) 3 with the backing of the Swiss Federal Council. 4 However, it is important to note that the international initiatives promoted by this association had already begun to come to fruition in the early 1880s. Its efforts helped to create a positive environment for the formation of an international copyright agreement. Although at first ALI's activities were on a relatively small scale, gradually, they brought important European players into contact with each other. These players would, in time, become the main participants in the Treaty which emerged several years later. 5 Specifically, ALI established a bureaucratic apparatus, 6 secured a postal address, 7 and served as both an agency and a springboard for those who began to insist that the international perspective on copyright was a crucial component of the subject. 8 The development of an institutional space in which those interested - lawyers, politicians, writers - could make contacts and get to know one other, exchange experiences, ideas (and also books), 9 was achieved in a number of ways. Perhaps the most interesting of these was the organisation of a series of international artistic and literary congresses which became an annual point of exchange between jurists, publicists and journalists from all over the world.
Top-cited authors
Michael Einhorn
  • Yale University
Bill Rosenblatt
  • GiantSteps Media Technology Strategies
Reto Hilty
  • Max Planck Institute for Innovation and Competition, Munich, Germany
Martin Senftleben
  • University of Amsterdam
Niva Elkin-Koren
  • University of Haifa