The Pre-History of Fair Use (original) (raw)
God in the Machine: A New Structural Analysis of Copyright's Fair Use Doctrine
2005
This article is a broad reconceptualization of the role of fair use within copyright law. Fair use is commonly thought of as just one of many exceptions limiting copyright, in contrast, this article shows that fair use has actually enabled the expansion of copyright protection. Fair use has an important structural role that is often overlooked. First, copyright necessarily must balance intellectual property incentives with the protection of free speech and innovation; fair use constitutes that balancing mechanism. By establishing the outer limits of copyright, fair use in fact enables an expansive interpretation of author's rights within those bounds. Second, because copyright works best by providing flexible principles that can accommodate technological changes, fair use also constitutes the mechanism by which Congress has given the courts a large policy making role to ensure copyright's balance. This article explains this structural function of fair use, then shows how this theory should and does apply. In doing so, it also identifies two broad trends emerging in the case law that have previously not been recognized or articulated, despite their significance. These are the principles of consumer autonomy and medium neutrality.
The Forgotten Right of Fair Use
SSRN Electronic Journal, 2010
Free speech was once an integral part of copyright law; today it is all but forgotten. At common law, principles offree speech protected those who expressed themselves by using another's expression. Free speech determined whether speakers had infringed a copyright. To prevail on a copyright claim, then, a copyright holder would need to prove that the speaker's use fell outside the scope of permissible speech-or in other words, that the use was not fair. Where uncertainty prevented that proof fair use would protect speakers from the suppression of copyright. Today, however, all this has changed. Copyright has deeply buried any remnants of free speech, redefining the doctrine offair use as a pretext for piracy that aims to excuse infringing conduct. Copyright enforcement has become the norm and fair use the exception, resulting in a presumption against fair-use speech. Uncertainty no longer protects speakers; it damns them. The change-from fair use as a strong right of speech to fair use as a weak excuse-occurred subtly, unintentionally, and without reason. It was a mistake. Quickly becoming widespread, the mistake swiftly eroded speech protections in copyright. If left unchecked, the mistake will become immutable. This Article traces the history offair use from its birth as a strong right of speech to its deterioration into a weak excuse for infringement.
Rewriting Fair Use and the Future of Copyright Reform
2005
Abstract: This Essay describes a social practices approach to the production of creative expression, as a construct to guide reform of copyright law. Specifically, it reimagines copyright's fair use doctrine by basing its statutory text explicitly on social practices. It argues that the social practices approach is consistent with the historical development of the fair use doctrine and with the policy goals of copyright law, and that the approach should be recognized in the text of the statute as well as in judicial applications of fair use.
Freedom of Expression and Copyright, The Foundations of All Liberties
TABLE OF CONTENTS The commentaries and presentations that are published separately in a Kindle edition represent in size about 40% of the size of this volume of documents. These commentaries and presentations contain about 154,000 words with a 5,740-word synthetic introduction as compared to 443,000 words in this volume of documents. I would advise you to get to this Kindle volume launched on March 15, 2017. This Kindle volume contains a lot of complementary resources on various legal aspects or national systems necessary to assess the future of Copyright in the world. (P;4 Preliminary Note P.5 Table of Contents P.9 Charter of Liberties of Henry I, 1100 P.11 Magna Carta, The Great Charter of English liberty granted (under considerable duress) by King John at Runnymede on June 15, 1215 P.17 Medieval Torture and Punishment P.29 The 10 Most Gruesome Torture Techniques From Medieval Europe P.36 THE CHARTER OF KURUKAN FUGA (1235-1236) (By SIRIMAN KOUYATE) P.39 William Wallace (1272 – 23 August 1305) P.39 Blind Harry’s Wallace, by William Hamilton of Gilbertfield, introduction by Elspeth King and Illustrations by Owain Kirby, reviewed by Sharma Krauskopf and rated P.42 UTOPIA, Sir Thomas MORE P.79 Stationers Company Charter Granted by Philip and Mary and confirmed by Elizabeth I. [1557] P.82 John STUBBS, The Discovery of a Gaping Gulf Whereinto England is like to be Swallowed by Another French Marriage, if the Lord Forbid Not the Banes, by Letting Her Majesty See the Sin and Punishment Thereof. P.84 WILLIAM SHAKESPEARE, Titus Andronicus P.137 The King's Majesty's Declaration to His Subjects Concerning Lawful Sports to Be Used (1633) P.141 The Petition of Right 1628 P.143 A DECREE OF STAR CHAMBER CONCERNING PRINTING. MADE JULY 11, 1637. P.153 The Root and Branch Petition (1640) P.157 June, 1643, An Ordinance for the Regulating of Printing. P.159 AREOPAGITICA, A SPEECH OF Mr. JOHN MILTON 1644 For the Liberty of UNLICENC'D PRINTING, To the PARLAMENT of ENGLAND. P.177 LEVIATHAN (Excerpts) By Thomas Hobbes 1651 P.201 The Declaration of Breda, (1660) P.202 Charles II, 1662, An Act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Bookes and Pamphlets and for regulating of Printing and Printing Presses. P.201 Habeas Corpus Act (1679) P.214 BILL OF RIGHTS (1689) P.218 The Statute of Anne (1710) P.221 Witchcraft Act of 1736 P.223 MARRIAGE AND LIFE EXPECTANCY,HARDWICKE’S MARRIAGE ACT 1753 P.227 The Case of JAMES SOMMERSETT, a Negro, on a Habeas Corpus, King's Bench: 12 GEORGE III. A.D. 1771-72. P.230 Donaldson v. Beckett, Proceedings in the Lords on the Question of Literary Property, February 4 through February 22, 1774 P.251 UNITED STATES DECLARATION OF INDEPENDENCE IN CONGRESS, JULY 4, 1776 P.253 UNITED STATES CONSTITUTION (September 17, 1787) P.258 UNITED STATES CONSTITUTION, AMENDMENTS 1-10 (December 15, 1791) « Bill of Rights » P.259 UNITED STATES CONSTITUTION, AMENDMENTS 11-27 (February 7, 1795- May 7, 1992) P.264 COPYRIGHT IN THE USA, A TIMELINE, SUMMARY AND COMMENT. From 1787 to 2006 P.266 1st Copyright Law of the USA, enacted during the 2nd session of the 1st Congress, May 31, 1790, signed by President George Washington P.268 THE SCARLET LETTER, 1850, by Nathaniel Hawthorne P.345 EREWHON, OR OVER THE RANGE, Samuel Butler, 1872 P.422 Copyright Law, By Mark F. Radcliffe and Diane Brinson of DLA Piper Rudnick Gray Cary P.425 U.S. Code: Title 17 – COPYRIGHTS P.429 WIPO Copyright Treaty (adopted in Geneva on December 20, 1996) WIPO Performances and Phonograms Treaty (WPPT) (adopted in Geneva on December 20, 1996) P.445 Sonny Bono Copyright Term Extension Act. S.505 One Hundred Fifth Congress of the United States of America AT THE SECOND SESSION P.450 The Campaign Against the Mickey Mouse Act, A sample of reactions P.459 UNITED STATES SUPREME COURT, ERIC ELDRED ET AL v. JOHN D. ASHCROFT, ATTORNEY GENERAL – CASE N° 01-618 P.504 Copyright Royalty and Distribution Reform Act (2004) P.524 The Sonny Bono Copyright Term Extension Act – Various Critical Resources • First Document, Copyright case threatens Disney, David Teather in New York, The Guardian, Wednesday 20 February 2002 02.24 GMT • Second Document, 10th anniversary of the Sonny Bono Copyright Term Extension Act: Can the good guys overturn it? (October 29th, 2008) • Third Document, Opposing Copyright Extension, A Forum for Information on Congress's Recent Extension of the Term of Copyright Protection and for Promoting the Public Domain • Fourth Document, freeculture.org, STUDENTS FOR FREE CULTURE – MANIFESTO • Fifth Document, Cereal Solidarity brought to you by freeculture.org • Sixth Document, Lawrence Lessig's Supreme Showdown, STEVEN LEVY, MAGAZINE, DATE OF PUBLICATION: 10.01.02 • Seventh Document, Art History Club, Sonny Bono Copyright Term Extension Act • Eighth Document, CEPR, Center for Economic and Policy Research, “The Artistic Freedom Voucher: An Internet Age Alternative to Copyrights,” Dean Baker, November 5, 2003 P.541 FAIR USE, Documentary Filmmakers’ Statement of Best Practices in Fair Use (November 2005) • FIRST APPROACH, WILLIAM F. PATRY – PATRY ON FAIR USE – 2014 EDITION • SECOND APPROACH, PATRICIA AUFDERHEIDE & PETER JASZI – RECLAIMING FAIR USE – 2011 • THIRD APPROACH, DOCUMENTARY FILMMAKERS
Denver University Law Review, 2011
Courts have recently abandoned the centuries-old practice of construing fair use as an issue of fact for the jury. Fair use now stands as an issue of law for the judge. This change is threatening traditional contours of copyright law that protect fair-use speech. Courts, then, must reform their current construction of fair use by returning to its originsfair use as a factual matter for the jury. Yet even if courts do construe fair use as a matter of fact, the question remains whether courts should ever decide fair use as a matter of law. To answer this question, I examine whether appellate courts should ever review fair use under a de novo standard and whether trial courts should ever decide fair use on summary judgment. I conclude that both appellate and trial courts should decide fair use as a matter of law under specific circumstances: appellate courts should review constitutional findings under a de novo standard only where a bench trial occurs or where a jury verdict favors the copyright holder; trial courts should rule on summary judgment only in favor of fair users. In short, ruling as a matter of law must serve the speech-protective function of fair use. Fair use as a matter of law must favor fair users.
2. Copyright 1: history, rationale, and policy context
Contemporary Intellectual Property
This chapter considers the evolution of modern copyright law against the background of its historical development in the UK and the international and European legal frameworks within which UK copyright law has been increasingly set since the nineteenth century. It examines the rationale and justifications for copyright and identifies the general policy context within which law and policy has developed in the UK and the EU. It also highlights the rapid development of new technologies which has brought copyright reform to the forefront in recent times, the difficulties which this new environment presents for the copyright framework, and how the framework has developed to such challenges.