Term Paper: Fair Use Element of Copyright

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¶ … Copyright Law

In the past few years, the "fair use" element of copyright law as it applies to news commentary and educational uses has emerged as a controversial topic, raising the awareness of intellectual property practitioners, copyright holders and governmental agencies alike. Famous copyright cases such as the ones involving Vanilla Ice and Batman Forever have assisted in bringing copyright issues involving fair use to the forefront. Technology as further complicated the problem by easing the manufacture of digital processes involving music and film, as well as the widespread availability of material on the Internet. Federal copyright can be viewed as a bargain between the creator of the writing or invention and the people, as represented by the federal government (Hollaar, 2002). In trade for protection for a limited term (and the ability to commercially exploit the writing or invention during that time because of that protection), the creator lets the public have all rights to the writing or invention after the term of protection ends (Hollar, 2002). However, there are exceptions to copyright law, under the "fair use" provision. Fair use under the United States Copyright Act, allows the use of copyrighted materials for certain purposes, such as criticism, comment, news reporting, teaching, scholarship, and research. However, there is no clear cut line, and the fair use element of copyright law has been the subject of much debate. This paper will analyze the provisions of copyright law in regard to fair use focusing on news commentary and educational uses.

Constitutional Provision Establishing Copyright

The history of the first copyright laws have origins that date back as early as the 1500's when printing presses were first invented. At that time, the risk of unauthorized copying of material was very low, as only a few printers existed and the owners of these printers were well-known. The first copyright laws in the American colonies were used to control the content of what was published, rather than to prevent unauthorized copying. Shortly after the Revolutionary War, the Continental Congress recommended that the states adopt copyright laws (Hollaar, 2002). With the new Constitution, the Congress was given the power "to promote the Progress of Science and the useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries (Hollaar, 2002)." This early version of the Patent and Copyright Clause was found in the United States Constitutional, Article I, Section 8. According to Hollaar (2002), at that time, "science" referred to knowledge, and the "useful arts" are what we now call technology. A review of the literature indicates that scholars currently view that early Patent and Copyright Clause as a limitation on Congress, not a grant of authority. This is due to the fact that patents and copyrights must have limited durations, and others have argued that any copyright or patent law passed by Congress must be shown to "promote the Progress of Science and the useful Arts" when they feel that copyright or patent is limiting something that they feel is worthwhile (Hollaar, 2002).

In 1790, the first copyright act was signed into law, called the Copyright Act of 1790, which granted initial rights in a work to its author for 14 years with a renewal term of another 14 years. Although a notice was not required, registration of the work with the clerk of the district court and publication of the registration in a newspaper for four weeks was necessary (Hollaar, 2002). The 1790 Act gave protection to any "map, chart, or book" and also protected unpublished manuscripts, however, protection was limited to United States citizens, allowing the unrestricted copying of foreign books. The Copyright Act of 1970 was revised several times; revisions were made to include new technologies that emerged such as photographs and dramatic performances. A further revision included the requirement of placing a notice of copyright on every printed copy.

In 1909 the Act was once again revised, expanding the copyright term to an initial period of 28 years and a one-time renewal period of 28 years, dating from the first publication with proper notice. Under this Act, the publication of a work without notice still resulted in loss of copyright protection. The most dramatic revision of the copyright act occurred in the 1976 revision, discussed below.

1970's Revision of the Copyright Act

The Copyright Act of 1976 covered all "original works of authorship," and although it gave many rights to the copyright owner, it also contained many exceptions for particular cases. It also codified a "fair use" exception, permitting the use of copyrighted works to be judged for fairness on a case-by-case basis (Hollaar, 2002). The 1976 Act remained undecided as how to treat computer programs and computer databases, which consisted of the new emerging technology at that time. In 1980 the Act was revised by adding a definition of computer programs. However, the most controverasial revision of the 1976 Act involved the fair use exception, which held that 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.

Under the Act, the determination of fair use includes the examination of four factors: (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. Hollaar (2002) notes that while the statute lists a number of purposes for fair use copying ("criticism, comment, news reporting, teaching, scholarship, or research"), it does not say that any of those are automatically a fair use. Instead, it says that a fair use for such purposes is not an infringement, with the four factors determining whether or not the particular use is fair (Hollaar, 2002). The fair use exception raised much debate because the court must take into consideration each of the four factors, but not all four factors must be met. This gave wide discretion for the courts in deciding a fair use case, but also set no precedent for common cases.

This controversy over fair use spurred numerous Congressional hearings regarding the issue. The Register of Copyrights, or the U.S. Copyright Office, testified at three Congressional hearings in 2002. The Senate Committee on the Judiciary held a hearing on the Intellectual Property Protection Restoration Act. The House Subcommittee on Courts, the Internet, and Intellectual Property held two hearings: a two-day hearing regarding the Copyright Office's Digital Millennium Copyright Act (DMCA) Section 104 report, and one on reform of the Copyright Arbitration Royalty Panels (CARPs) (U.S. Copyright Office, 2002). The Intellectual Property Protection Restoration Act addressed issues raised by two 1999 rulings in which the Supreme Court determined that the doctrine of sovereign immunity prevents states from being held liable for damages for violations of the federal intellectual property laws even though states enjoy the full protection of those laws (U.S. Copyright Office, 2002). At the request of Congressional staff, the Copyright Office moderated negotiations between intellectual property owners and public universities over the proposed legislation (U.S. Copyright Office, 2002). In 2005, a United States Congressional subcommittee met to discuss the revision of the Digital Media Consumers' Rights Act to allow consumers to exercise their fair use rights by allowing them to make copies of protected works for personal use. Opponents of this revision included those that believed that any failure to tighten up copyright laws would lead to large scale piracy (Bangeman, 2005).

Fair Use Focusing on News Commentary

Fair use as it relates to news commentary or news reporting is one area of much debate. This is because it is very difficult to determine that a reporter or an editor has stepped over the line from fair use into copyright infringement.. As a result, journalists and bloggers, as well as almost anyone that wants to discuss, report on or share cultural materials, faces problems with respect to copyright (AUSC Annenberg, 2007). An example of these problems with respect to news commentary are the widespread production of articles on the Internet, and websites that take articles from another source and reproduce them without permission.

Owners of these websites argue that this is part of news reporting and commentary and is part of the exchange of ideas and it should be considered fair use. AUSC Annenberg (2007) raises the idea that someone may send another individual a whole article from the New York Times because it's the best way of sharing the information. According to AUSC Annenberg (2007), there's a very strong argument that that kind of exchange serves one of the important purposes underlying fair use. News… [END OF PREVIEW]

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Fair Use Element of Copyright.  (2007, July 31).  Retrieved July 22, 2019, from https://www.essaytown.com/subjects/paper/fair-use-element-copyright/5418457

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