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READY FOR REVIEW | | | -- AustinKlar - 26 Nov 2011 | |
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> | Upon some further reflection, I see a potential problem with my idea of using whether or not someone intends to make use of a certain derivative market as an element of fair use. If two people have different intentions (Creator A wanting to make use of that derivative market, and Creator B not wanting to make use of that derivative market), then whether something is deemed fair use is plaintiff-specific. The standard presents an issue of clarity on part of future users of the copyrighted work. If I'm unsure, as a secondary user, whether or not my conduct falls under fair use because I'm unsure what the copyright owner intends to do in the derivative market, that could chill me from using the copyrighted work at all, and perhaps hinders the progress of science and the useful arts in that sense. | | | | |
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> | But, as Shyamkrishna Balganesh, professor at U Penn Law, points out in the Harvard Law Review, perhaps a useful standard could also be foreseeability. While he mainly focuses on foreseeability (an objective reasonable person standard similar to that in tort law, contract law, nuisance law, etc.) in infringement analysis rather than in the fair use analysis, an explicit foreseeability element could be beneficial. If, at the time a creator makes a work, a particular derivative market is so unforeseeable that control over that market through copyright could not possibly have been part of his incentive to create the work in the first place, then the defendant should not be liable for infringement by utilizing that derivative work. | | | | |
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> | But foreseeability analysis presents some problems of its own. Eventually a certain use becomes foreseeable so for certain works, created at certain times, a use might be wholly unforeseeable and therefore not covered under copyright, but that use might later become foreseeable and therefore covered by copyright. So for the same types of works, one work will not have the same protection as the other, since they were created at different times. For example, in 1960 the internet was not objectively foreseeable by the ordinary reasonable author. Thus, the ability to control the market for digitization of a book would not be part of that author's incentive to write the book. But, in 1985, the internet might be foreseeable, and digitization of the 1985 book would be a market that author could control. So for the exact same works, digitization will be covered in one instance and not the other. Whether something was foreseeable back when a work was written is not necessarily fathomable by the derivative user (and perhaps even courts for that matter). Copyright is supposed to last for life of the author plus 75 years. But with technology developing so rapidly, and unpredictable uses emerging within short time periods of creating a work, the foreseeability analysis could actually end up effectively abrogating copyright law's duration, rendering the 75 year after death of the author time-period almost meaningless. | | | | |
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< | Austin,
Great idea on the article and you delved into the doctrine well. However, fair use is much more nuanced and complicated than what you have portrayed here. Several comments/suggestions: 1) Check the law on the fourth factor, esp. after the Supreme Court's Campbell v. Acuff-Rose decision. I remember the Second Circuit saying that the fourth factor is no longer as important as you are portraying it as. 2) I agree - we need to limit the scope of derivative works rights, but that's a 106 problem separate from fair use. What about limiting derivative rights based on categories of works, e.g. musical works as opposed to pictorial or literary works? Also, explore the possibility of adopting something from the blocking patents system in patent law. 3) The burden shift sounds good in theory but difficult procedurally and unlikely to be accepted. The DMCA takedown provisions has something similar but I don't see how placing the burden on plaintiffs, which I agree would limit copyright lawsuits, would work or not have the effect of unleashing too much unauthorized copying. Finally, the First Amendment protections are built into the copyright clause and you won't get much sympathy from the Supreme Court on separate First Amendment considerations.
What we do need is better guidance on how to apply the fair use test. Having four factors, each with its intricate nuances, and no sense of how exactly to balance them and approach it analytically, is the problem with fair use. It has troubled individuals and businesses, and courts when they need to decide them. Some guidance from the Supreme Court or even Congress would be helpful. Ultimately, the best solution I think would be for Congress to do a Copyright overhaul like they did with patents, but more comprehensively and in line with what copyright and fair use means in the 21st century. | | | | |
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< | -- ThomasHou - 05 Dec 2011 | >
> | -- AustinKlar - 06 Mar 2012 | | |
Austin, |
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