scholarly journals Taking Access Seriously

2021 ◽  
Vol 8 (2) ◽  
pp. 225-269
Author(s):  
BJ Ard
Keyword(s):  
Market Failure ◽  
Distinct Type ◽  
Higher Order ◽  
Copyright Law ◽  
Fair Use ◽  
Participatory Culture ◽  
Public Access ◽  
Law And Policy ◽  
The Creation ◽  
Policy Guidance

Copyright is conventionally understood as serving the dual purposes of providing incentives for the creation of new works and access to the resulting works. In most analysis of copyright, however, creation takes priority. When access is considered, it is often in the context of how access relates back to the creation of new works. Largely missing is an account of the value of access on its own terms. So what is the place of access in copyright law and policy? A set of cases dealing with copyright owners’ attempts to enjoin the markets created by new playback and distribution technologies is instructive. These decisions—where the courts refused to enforce copyright where the owners attempted to shut down a market rather than participate in it—have been criticized for their un- clear policy guidance and lack of doctrinal grounding. We can reconcile these cases with copyright policy by focusing on access. These cases provide rich examples showing how expanded access advances copyright’s higher-order goals of promoting a more democratic and participatory culture. Focusing on access also provides a means for bringing doctrinal coherence to these cases through the fair-use defense. The courts permitted the use of copyrighted works in new markets despite the copyright owners’ objections because these markets could expand public access without diminishing the copyright industries’ creative incentives. Indeed, copyright owners often found the markets profitable after being forced to enter them. Copyright owners’ market refusal in these scenarios is a distinct type of market failure, and fair-use doctrine allows courts to correct it.

Digital Repatriation

2018 ◽  
pp. 530-552
Author(s):  
Alex Perullo
Keyword(s):  
Country Of Origin ◽  
Indigenous Communities ◽  
Copyright Law ◽  
Fair Use ◽  
Digital Collections ◽  
Limited Access ◽  
Local Space ◽  
The Creation

This essay makes two points about digital collections. The first recognizes problems that emerge as archives present indigenous content online. In uploading indigenous songs, speeches, and documents, an archive allows that material to move from a local space with limited access to an international repository with many points of access. This chapter examines conflicts that can occur with this action, including those involving copyright law, fair use, and ethics. A second point of this chapter revolves around technology and repatriation. If repatriation means the return of material to a country of origin, then online archives never fully commit to this task. The material typically remains preserved on servers and in its original forms away from indigenous communities. Despite these ethical, legal, and technological concerns, archives should encourage the creation of digital collections as part of repatriation given the desire by many indigenous communities to preserve and promote their traditions.

User Property, User Rights, and User Privileges

2017 ◽  
Author(s):  
Pascale Chapdelaine
Keyword(s):  
Public Law ◽  
Copyright Law ◽  
Future Application ◽  
Private Law ◽  
The Public ◽  
Freedom Of Contract ◽  
Competing Interests ◽  
Regulatory Changes ◽  
Law And Policy ◽  
User Property

This chapter proposes two principles that should inform the development of copyright law and policy and of user rights. The first calls for more cohesion between copyright law, private law, and public law, and for less exceptionalism in copyright law. The second requires that the balance in copyright law be adjusted for its future application as a mediation tool between the competing interests of copyright holders, users, intermediaries, and the public. Instituting positive obligations for copyright holders in relation to users and steering freedom of contract toward the objectives of copyright law are necessary regulatory changes to rectify ongoing imbalances. The principle of technological neutrality should guide the judiciary in its application of copyright’s objective of promoting a balance in copyright law. The proposed guiding principles lead to the creation of a taxonomy and hierarchy of copyright user rights that take into account the myriad ways users experience copyright works.

Fair Use of Existing Books

2020 ◽  
pp. 111-124
Author(s):  
Lea Shaver
Keyword(s):  
Low Income ◽  
Copyright Law ◽  
Fair Use ◽  
Hypothetical Situation ◽  
Popular Belief ◽  
Non Profit ◽  
Address Book ◽  
Famous Book ◽  
Low Income Families ◽  
Broad Interpretation

This chapter analyzes the nuances of the copyright law book, such as translating a book into another language for academic use, adapting a famous book to make it more multicultural, or cheaply photocopying a book to give away to low-income families. Copyright exceptions are sometimes quite specific and clearly defined, while others are open-ended and subject to broad interpretation. It talks about the doctrine of “fair use” in America. Contrary to popular belief, the fact that something is widely done is no assurance that it is legally recognized as fair use. The chapter also provides a hypothetical situation in order to illustrate how the fair use doctrine might apply to a potential non-profit publishing project to address book hunger.

scholarly journals Comparative Study on Copyright Exception for Teaching Purposes: Australia, Malaysia and the United Kingdom

2020 ◽  
Author(s):  
Ratnaria Wahid ◽  
Ida Madieha Abdul Ghani Azmi
Keyword(s):  
United Kingdom ◽  
Developed Countries ◽  
Copyright Law ◽  
Public Access ◽  
International Treaties ◽  
Human Right ◽  
The Public ◽  
The United Kingdom ◽  
Copyright Exception ◽  
Materials Used

While education is considered a basic human right, the copyright system however seems to hamper public access to information and knowledge. This is especially so when information that largely comes from developed countries are used as commodities that have to be bought by developing countries. This paper compares the international and national laws in Malaysia, United Kingdom and Australia on the copyright exceptions to materials used for teaching purposes. It analyzes the different ways countries manage and balance between copyright owners and copyright users’ interest and shows that in many circumstances, copyright owners are over-protected by national copyright systems although this is not required by international copyright law. This paper also shows that international treaties governing copyright law do allow some flexibility for member countries to implement copyright systems based on their own needs and circumstances but such opportunity is not fully utilized by member countries for the benefit of the public.  

scholarly journals A Pattern-Oriented Approach to Fair Use

2017 ◽  
Author(s):  
Michael J Madison
Keyword(s):  
Social Practices ◽  
Copyright Law ◽  
Fair Use ◽  
Social Implications ◽  
Social Scientists ◽  
The Social ◽  
Case Application ◽  
Use Factors ◽  
Oriented Approach

More than 150 years into development of the doctrine of "fair use" in American copyright law, there is no end to legislative, judicial, and academic efforts to rationalize the doctrine. Its codification in the 1976 Copyright Act appears to have contributed to its fragmentation, rather than to its coherence. This Article suggests that fair use is neither badly conceived nor badly applied, but that it is too often badly understood. As did much of copyright law, fair use originated as a judicially-unacknowledged effort via the law to validate certain favored social practices and patterns. In the main, it has continued to be applied as such, though too often courts mask their implicit validation of these patterns in the now-conventional "case-by-case" application of the statutory fair use "factors" to the defendant's use of the copyrighted work in question. A more explicit acknowledgement of the role of these patterns in fair use analysis is consistent with fair use and copyright policy and tradition. Importantly, it helps to bridge the often-difficult conceptual gap between fair use claims asserted by individual defendants and the social implications of accepting or rejecting those claims. Finally, a pattern-oriented approach is normatively appropriate, when viewed in light of recent research by cognitive psychologists and other social scientists on patterns and creativity. In immediate terms, the approach should lead to a more consistent and predictable fair use jurisprudence. In the longer term, it should enhance the ability of copyright law to promote creative expression.

Fair Use and Free Inquiry: Copyright Law and The New Media

1980 ◽  
Vol 10 (4) ◽  
pp. 459-466 ◽  
Author(s):  
Joseph Taubman
Keyword(s):  
New Media ◽  
Copyright Law ◽  
Fair Use ◽  
Free Inquiry

2. Copyright 1: history, rationale, and policy context

2019 ◽  
pp. 31-50
Author(s):  
Abbe Brown ◽  
Smita Kheria ◽  
Jane Cornwell ◽  
Marta Iljadica
Keyword(s):  
Nineteenth Century ◽  
Historical Development ◽  
New Technologies ◽  
Rapid Development ◽  
Copyright Law ◽  
Policy Context ◽  
Law And Policy ◽  
Legal Frameworks ◽  
The Uk ◽  
The Eu

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.

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