Three Copyright Issues

Fair UseOrphaned Works

Public Domain

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 shall include—

• (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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding

is made upon consideration of all the above factors.

(17 U.S.C. °± 107)

Copyright Office says:• The 1961 Report of the Register of Copyrights on the General Revision of the

U.S. Copyright Law cites examples of activities that courts have regarded as fair use:

• “quotation of excerpts in a review or criticism for purposes of illustration or comment;

• quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations;

• use in a parody of some of the content of the work parodied;• summary of an address or article, with brief quotations, in a news report; • reproduction by a library of a portion of a work to replace part of a damaged

copy; • reproduction by a teacher or student of a small part of a work to illustrate a

lesson;• reproduction of a work in legislative or judicial proceedings or reports; • incidental and fortuitous reproduction, in a newsreel or broadcast, of a work

located in the scene of an event being reported.”

• Fair Use Checklist (downloads a .pdf)

• Stanford Copyright and Fair Use Sample Cases

IMPORTANT

FAIR

USE ISSUES

• Inconsistent application of the 4 factor test.– Which factor(s) “wins”?

• Attenuations of the factors.– De minimis Use and Private Use– Licensing and market failure

• Copyright Clearance Center• HSF Songfile• Licensemusic.com

– These tend to work better for commercial applications than for private use.– These “establish” the notion that fair use no longer applies since everything could be

licensed.• Creative Commons (helps creators decide the levels of sharing and protection).

Works good for the purpose of allowing creators to tell others that it’s ok to use their stuff for X purpose at Y level.• However, isn’t really “easier to understand” than is copyright… one has to be able to

analyze BOTH copyright law AND CC categories.• Doesn’t in any way “trump” existing copyright law protections or rulings.• May discourage real copyright revision/rewriting (“well, there’s CC)

• Open Source (GPL/GNU): specifies/requires open sharing without rights.

IMPORTANT FAIR USE ISSUES cont.

• Leval’s “transformative” uses– Only in the “law” by implication AND later case

law.

– Very much a “shifting” standard.

– Even more confusing than the basic idea of fair use, as it edges on derivative rights.

• Guidelines– Can be helpful and are used all the time.

• Are awfully profuse, have no standing under the law, and can chill.

Public Domain• Reclaiming the Commons: David BollierOne of the great questions of contemporary American political economy

is, who shall control the commons? "The commons" refers to that vast range of resources that the American people collectively own, but which are rapidly being enclosed: privatized, traded in the market, and abused. The process of converting the American commons into market resources can accurately be described as enclosure because, like the movement to enclose common lands in eighteenth-century England, it involves the private appropriation of collectively owned resources.

Such enclosures are troubling because they disproportionately benefit the corporate class and effectively deprive ordinary citizens of access to resources that they legally or morally own. The result is a hypertrophic market that colonizes untouched natural resources and public life while eroding our democratic commonwealth.

Orphaned Works

• From James Boyle, The Public Domain: Enclosing the Commons of the Mind (you can download this)

Go to the Library of Congress catalogue. It is online at http://catalog.loc.gov/. This is an astounding repository of material—not just books and periodicals, but pictures, films, and music. The vast majority of this material, perhaps as much as 95 percent in the case of books, is commercially unavailable. The process happens comparatively quickly. Estimates suggest that a mere twenty-eight years after publication 85 percent of the works are no longer being commercially produced. (We know that when U.S. copyright required renewal after twenty-eight years, about 85 percent of all copyright holders did not bother to renew. This is a reasonable, if rough, guide to commercial viability.)

Yet because the copyright term is now so long, in many cases extending well over a century, most of twentieth-century culture is still under copyright—copyrighted but unavailable. Much of this, in other words, is lost culture. No one is reprinting the books, screening the films, or playing the songs. No one is allowed to. In fact, we may not even know who holds the copyright. Companies have gone out of business. Records are incomplete or absent. In some cases, it is even more complicated. A film, for example, might have one copyright over the sound track, another over the movie footage, and another over the script. You get the idea. These works—which are commercially unavailable and also have no identifiable copyright holder—are called “orphan works.” They make up a huge percentage of our great libraries’ holdings. For example, scholars estimate that the majority of our film holdings are orphan works. For books, the estimates are similar. Not only are these works unavailable commercially, there is simply no way to find and contact the person who could agree to give permission to digitize the work or make it available in a new form.

Take a conservative set of numbers. Subtract from our totals the works that are clearly in the public domain. In the United States, that is generally work produced before 1923. That material, at least, we can use freely. Subtract, too, the works that are still available from the copyright holder. There we can gain access if we are willing to pay. Yet this still leaves a huge proportion of twentieth- and twenty-first-century culture commercially unavailable but under copyright. In the case of books, the number is over 95 percent, as I said before; with films and music, it is harder to tell, but the percentages are still tragically high. A substantial proportion of that total is made up of orphan works. They cannot be reprinted or digitized even if we were willing to pay the owner to do so. And then comes the Internet. Right now, you can search for those books or films or songs and have the location of the work instantly displayed, as well as a few details about it. And if you live in Washington, D.C., or near some other great library, you can go to a reading room, and if the work can be found and has not been checked out, and has not deteriorated, you can read the books (though you probably will not be able to arrange to see the movies unless you are an accredited film scholar).

pp. 9-10

The Orphan Works Act(none of these pass)

• Against: Lessig (Little Orphaned Works)

• For: Marybeth Peters--Register of Copyrights(The Importance of Orphan Works Legislation)

• Orphan Works Act of 2008

• Shawn Bentley Orphan Works Act of 2008

termination

• http://www.copylaw.com/new_articles/copyterm.html

1. Don’t forget Google search/books and both the public domain and orphaned works.

2. One way to solve the orphaned work problem is to re-establish re-registration requirements. Doing so is expensive for large content holders in terms of time, effort, and money. But if they could afford the cost, would the benefits to the public domain and copyright system merit the expense?

3. The World Wide Web introduces enormous complexities for fair use in educational settings. Discuss giving educational entities wider latitude with regard to fair use on the Web. For example, student work that includes protected materials is fair use if it is only turned in to the teacher or is arrayed on a password-protected site for a short time. Should fair use be expanded such that these works could be displayed on the Web without restriction?

4. Discuss de minimis usage. Should the courts re-invigorate the fourpart test rather than taking the position that all copying requires permission?

5. Discuss sampling (more broadly than merely de minimis). How can a copy and re-mix culture be legally aligned with copyright requirements for licensing every sample? What are the values of transformative use in creativity?

6. Discuss the lack of alignment between terms for patents and copyright. Are there justifications (other than the mere history of developments) for extremely long copyright terms in the face of relatively short patent terms?

7. Even something written into the law for a good reason (termination) turns into a hotly contested political football.