scholarly journals Copyright Fair Use: Case Law and Legislation

1969 ◽  
Vol 1969 (1) ◽  
pp. 73 ◽  
Keyword(s):  
Case Law ◽  
Fair Use ◽  
Use Case ◽  
Law And Legislation

It’s Bigger Than Hip-Hop: Sampling and the Emergence of the Market Enhancement Model in Fair Use Case Law

2018 ◽  
Vol 96 (2) ◽  
pp. 598-622 ◽  
Author(s):  
P. Brooks Fuller ◽  
Jesse Abdenour
Keyword(s):  
Hip Hop ◽  
Original Work ◽  
Case Law ◽  
Copyright Law ◽  
Fair Use ◽  
Use Case ◽  
Market Impact ◽  
Market Participation ◽  
Lower Courts ◽  
Rich History

“Sampling” copyrighted works to create new expression has a rich history in creative culture, particularly in hip-hop music, a genre that values revision and recontextualization. However, courts are mixed on whether sampling should be considered fair use. Many courts have found that sampling harms the original artist’s ability to license copyrighted material, thereby diminishing the work’s marketability. But some courts recognize that sampling can enhance the market for the original work. The present study explores the tension between these opposing fair use models—what we call the “pure market substitute” and “market enhancement” models—currently percolating in lower courts. Through an analysis of cases involving hip-hop sampling and similar practices, we argue that the “market enhancement” model, which considers cultural and audience characteristics that impact marketability, better serves the goals of copyright law and should be more widely adopted. We further recommend that courts consider three factors when analyzing market impact in fair use sampling cases: provable effects of the sample on the market for the original work, the nature and duration of the original author’s market participation, and the similarity between markets for the original and secondary works.

The EU Treaties and the Charter of Fundamental Rights

2019 ◽  
Keyword(s):  
Current Practice ◽  
Case Law ◽  
Fundamental Rights ◽  
Legal Service ◽  
Eu Law ◽  
Charter Of Fundamental Rights ◽  
Rights Offering ◽  
Law And Legislation ◽  
Fast Access ◽  
The Eu

This Commentary provides an article-by-article summary of the TEU, the TFEU, and the Charter of Fundamental Rights, offering a quick reference to the provisions of the Treaties and how they are interpreted and applied in practice. Written by a team of contributors drawn from the Legal Service of the European Commission and academia, the Commentary offers expert guidance to practitioners and academics seeking fast access to the Treaties and current practice. The Commentary follows a set structure, offering a short overview of the Article, the Article text itself, a key references list including essential case law and legislation, and a structured commentary on the Article itself. The editors and contributors combine experience in practice with a strong academic background and have published widely on a variety of EU law subjects.

scholarly journals The concept and essence of the principle of inadmissibility of abuse of procedural rights in administrative judiciary

2021 ◽  
Vol 66 ◽  
pp. 135-141
Author(s):  
Yan Bernazyuk
Keyword(s):  
Case Law ◽  
Fair Use ◽  
Public Interests ◽  
Procedural Law ◽  
European Court ◽  
The Supreme Court ◽  
Legal Legitimacy ◽  
Definition Of ◽  
Administrative Proceedings ◽  
Procedural Rights

The article is devoted to the definition of the peculiarities of observance in administrative proceedings of the principle of inadmissibility of abuse of procedural rights. The concept and essence of abuse of procedural rights in administrative proceedings are clarified, the meaning of the principle of inadmissibility of abuse of procedural rights is established. The legal basis of the principle of inadmissibility of abuse of procedural rights in administrative proceedings is investigated. Based on the analysis of the case law of the Supreme Court, the European Court of Human Rights established the content of the principle of inadmissibility of abuse of procedural rights. The opinion that the abuse of procedural rights is opposed to the conscientious abuse of procedural rights by the parties is substantiated. The author argues that the abuse of procedural rights may be recognized as actions or omissions of a party to the case, which are characterized by a sign of apparent legal legitimacy, but are used for the opposite or inconsistent with the pursuit of the relevant procedural right or obligation. Based on the analysis of the Constitution of Ukraine, international acts, laws of Ukraine and case law, it is proved that the main purpose of the principle of inadmissibility of abuse of procedural rights is to guarantee the fair use of their procedural rights. The author discloses the content of the fair use of the parties' procedural rights, which includes the use of the relevant rights for the purpose for which these rights are granted, and in the manner prescribed by procedural law, as well as conscientious performance of duties specified by law or court. The study made it possible to state that the introduction of the principle of inadmissibility of abuse of procedural rights is important for improving the effectiveness of administrative courts to protect the rights and interests of individuals, public interests and the interests of the state.

Counterfactual Reasoning and Expropriation Compensation: An Argument for Elimination of Elimination Rules

2016 ◽  
Vol 2016 (3) ◽  
Author(s):  
Sjur K Dyrkolbotn
Keyword(s):  
Legal Reasoning ◽  
Counterfactual Thinking ◽  
Case Law ◽  
Property Value ◽  
Counterfactual Reasoning ◽  
England And Wales ◽  
Legal Professionals ◽  
Unique Mode ◽  
The Law ◽  
Law And Legislation

AbstractTo award compensation for expropriated property, it is usually necessary to determine what the value of the property would have been if there had been no expropriation. This requires counterfactual thinking, a form of “make-believe” reasoning that legal professionals and valuators often find difficult to apply. The challenge becomes particularly difficult and important when the scheme underlying expropriation influences the value of the property that is taken. In such situations, rules developed in case law and legislation often attempt to clarify when aspects of property value should be attributed to the expropriation scheme and disregarded from further consideration. This article critically addresses elimination rules of this kind, arguing that they interfere with counterfactual assessments in ways that can render these assessments more difficult, less predictable, and more open to manipulation. To illustrate the overarching point, it is argued that recent proposals for reform in England and Wales, aiming to constrain the scope of contrary-to-fact elimination in expropriation cases, might not work as intended and could potentially make the situation worse. More broadly, the article argues that counterfactual reasoning in expropriation cases cannot be circumvented by legislative and casuistic interventions. Just as the law of tort, the law of expropriation compensation illustrates why counterfactual reasoning should be recognised as an irreducible and unique mode of legal reasoning, one that should be addressed as such by legal theorists and lawmakers alike.

The role of the principle of integrity in copyright protection

2021 ◽  
pp. 12-25
Author(s):  
Olena Shtefan
Keyword(s):  
Case Law ◽  
The United States ◽  
Fair Use ◽  
Good Faith ◽  
Scientific Article ◽  
Anglo Saxon ◽  
Fair Dealing ◽  
Applicable Law ◽  
Principle Of Justice

Shtefan O. The role of the principle of integrity in copyright protection.The article is devoted to the disclosure of the essence of the principle of good faith as the quintessence of all principles of law, universal principle, which applies both in procedural and material law. Directly in the article, the principle of good faith is revealed through the prism of the analysis of controversial legal relations arising in copyright relations.The application of the principle of fair use of works is aimed at establishing a balance between the interests of authors of works and the interests of society regarding their use, while sometimes it is used to expand the monopoly of copyright.Analysis of the legislation and case law of Canada, Australia and other countries allows us to define the principle of «fair dealing» as a way to protect («affirmative defense ») from copyright infringement and restrictions, rather than as a statutory right to use someone else’s work. Otherwise, the defendant would be burdened with proving that: 1) the use corresponds to one of those listed in Art. 29 goals (for example, research, criticism or news); 2) the use was «fair» and 3) there were references to the original source.According to the results of the study in the scientific article it was concluded that the existence in the Anglo-Saxon legal family of two conceptually different in the application of doctrines of fair use «fair use» and «fair dealing» and understanding the free use of works in Ukraine, as in other countries in continental Europe, closer to the doctrine of «fair dealing», which implies a statutory list of actions that are classified as fair use, than to the doctrine of «fair use», which operates in the United States. Although it is possible to trace some similarities between the understanding of free use in the Civil Code of Ukraine, the Law of Ukraine «On Copyright and Related Rights» and the doctrine of «fair dealing» (given the statutory list of restrictions on copyright), it is necessary to take into account case law and, accordingly, a more «free» interpretationof the applicable law when the courts decide whether the use is a violation of exclusive rights or is an activity within the framework of free (fair) use. Keywords: copyright, illegal use of copyright objects, the principle of justice, thedoctrine of «fair use», the doctrine of «fair dealing».

Company Directors: Duties, Liabilities, and Remedies

2017 ◽  
Keyword(s):  
Case Law ◽  
Third Party ◽  
Court Decisions ◽  
Cayman Islands ◽  
Market Abuse ◽  
Company Directors ◽  
The Law ◽  
The Uk ◽  
Law And Legislation ◽  
Court Of Appeal

This is a new edition of the established authority on the law relating to directors of companies incorporated under the UK Companies Acts. The new edition features all important developments in the law including the Small Business, Enterprise and Employment Act 2015 which improves transparency (including requiring directors to be natural persons unless exceptions apply), simplifies company filing requirements, clarifies the application of general duties to shadow directors, modernises directors’ disqualification and reforms insolvency law to facilitate proceedings where there has been wrongdoing. There has been a wealth of new case law relevant to directors’ duties before the English courts, all of which are analysed and explained, including the Supreme Court decisions in Prest v Petrodel Resources, Jetivia v Bilta (UK), FHR European Ventures v Cedar Capital Partners and Eclairs Group v JKX Oil & Gas, the Court of Appeal decisions in Smithton Ltd v Naggar and Newcastle International Airport v Eversheds as well as the important High Court decisions in Universal Project Management Services v Fort Gilkicker, Madoff Securities International v Raven and the wrongful trading case, Re Ralls Builders. Non-UK cases are also analysed including Weavering Macro Fixed Income Fund Ltd v Peterson in the Cayman Islands’ Court of Appeal and the 2016 decision of the Hong Kong Court of Final Appeal Chen v Jason. In keeping with developments in case law and legislation the book now includes expanded coverage of multiple derivatives claims, directors’ exposure to third party claims and a new chapter on civil remedies for market abuse. The third edition is a complete reference work on the law relating to company directors and is the first port of call for all serious corporate lawyers and scholars on this subject.

(d) Appellate courts in a case like this, where there is room for legitimate judicial difference, should refrain from interfering unless it is considered that the decision reached was based on the application of wrong principles or the case is clearly wrongly decided. Decision of court Appeal dismissed. 4.8 STATUTORY INTERPRETATION: THE RELATIONSHIP BETWEEN CASE LAW AND LEGISLATION 4.8.1 Introduction The discussion of George Mitchell (Chesterhall) Ltd v finney Lock Seeds (1985) has indicated what happens when a problem about the meaning of a statutory provision goes before a court. In this section, attention will be given to statutory interpretation in court. The courts and tribunals have, as one of their most important tasks, the application of legislative rules to various fact situations. They must decide whether these legislative rules apply to given situations. Already in this text there have been several illustrations of words not meaning what they appear to mean. Despite the supposed certainty of statutory rules, rules in ‘fixed verbal form’. Words can change over time, and courts will disagree over the meaning of words. Choices of meaning, not perceived by the drafters, may lie latent in the words and are drawn out in court in a manner defeating intention, narrowing, extending or making meaningless the ambit of the rule. Many people need to apply statutory rules, often this application will be purely routine but sometimes doubts will arise. Such doubts may, or may not, reach court. How do judges set about deciding the meaning of words? Reference has already been made to the three rules of statutory interpretation. The literal, the mischief and the golden rules (see Figure 3.2, above, in the introduction to Chapter 3). These rules it should be remembered are rules of practice not rules of law. Do judges really use the rules of statutory interpretation? If so, which rule do they use first? Judges rarely, if ever, volunteer the information that they are now applying a certain rule of interpretation. Often, judges look to see if there can be a literal meaning to the words used in the disputed statutory rule. However, there is no rule that states that they must use the literal rule first. Holland and Webb (1994) quite correctly assert that interpretation is more a question of judicial style than the use of interpretational rules. Indeed, should a student attempt to use the rules of statutory interpretation as a guide in the interpretation of a statutory word or phrase, the uselessness of the rules as an interpretational tool becomes immediately apparent. However, as a justificatory label they may have a function. As students gain experience in reading judgments they notice vast differences in judicial styles. Some judgments seem to be based on a blow by blow analysis of precedents and earlier usage of words, others seem based on tenuous common sense rationales. Decisions based on the external context of the statute will be identified. This covers situations where judicial decision making appears to be based on issues of

2012 ◽  
pp. 117-117
Keyword(s):  
Common Sense ◽  
Case Law ◽  
Statutory Interpretation ◽  
Appellate Courts ◽  
Judicial Decision Making ◽  
Verbal Form ◽  
External Context ◽  
Law And Legislation ◽  
The Relationship ◽  
Over Time

Presumption of Marriage in Uganda

2020 ◽  
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Case Law ◽  
African Countries ◽  
High Court ◽  
The Supreme Court ◽  
Living Together ◽  
Law And Legislation ◽  
Court Of Appeal

Abstract Case law, amongst other sources, shows that many people in Uganda are living together as husband and wife although they are not married. Unlike legislation in other African countries such as Tanzania and Malawi, in Uganda, the pieces of legislation governing marriages are silent on the issue of presumption of marriage. Likewise, unlike in Kenya and South Africa where legislation does not provide for presumption of marriage but courts have held that such a presumption exists based on long cohabitation, Ugandan courts, the High Court, and the Court of Appeal, have held that Ugandan law does not recognise marriage based on long cohabitation (marriage by repute). However, courts will presume the existence of a marriage where a marriage ceremony took place. Since 2003, attempts to enact legislation to provide for the presumption of marriage in Uganda have not been successful. In this article, the author argues that there is still room for the Supreme Court to hold, on the basis of common law, that Ugandan law recognises the principle of presumption of marriage. This recognition would also be in line with Uganda’s international law obligation as the Committee on the Elimination of Discrimination against Women has called upon States Parties to CEDAW to enact legislation giving effect to de facto unions. The author relies on case law and legislation from some African countries to suggest ways in which the Supreme Court could deal with the issue of presumption of marriage.

scholarly journals Copyright and Embargoes on Digital Collections

2017 ◽  
Author(s):  
Benjamin John Keele
Keyword(s):  
Fair Use ◽  
Use Case ◽  
Digital Collections ◽  
Working Paper

Working paper--comments welcome.This paper argues that libraries collecting digital works should consider imposing temporary discovery and access embargoes on some copyrighted works. These embargoes can strengthen the library's fair use case for creating and preserving digital copies.

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