scholarly journals Rewarding Creativity: Transformative Use in the Jazz Idiom

2004 ◽  
Vol 4 ◽  
Author(s):  
Stephen R. Wilson
Keyword(s):  
Original Work ◽  
Case Law ◽  
Copyright Law ◽  
Minimal Level ◽  
Low Threshold ◽  
Two Measures ◽  
Artistic Merit ◽  
Creative Artists

A crayon drawing from a five-year-old child likely produces a copyrighted work. Notating or recording two measures of a three year-old child depressing piano keys, while not conventionally pleasing to the ear, may nevertheless be worthy of a copyright.1 The artistic merit of a work is not a factor in determining originality. Simply stated, an author satisfies copyright formalities when she affixes an original work of authorship in a tangible medium.2 Case law indicates that the threshold requirement for the originality element of a copyright is a showing of some "minimal level of creativity."3 Few could disagree that the low threshold requirement for originality encourages creativity. An inherent unfairness exists, however, when copyright law shuns creative artists from attaining a copyright.

scholarly journals Copyright and Artificial Creation: Does EU Copyright Law Protect AI-Assisted Output?

2021 ◽  
Author(s):  
P. Bernt Hugenholtz ◽  
João Pedro Quintais
Keyword(s):  
Original Work ◽  
Case Law ◽  
Copyright Law ◽  
Step Test ◽  
Eu Law ◽  
Legal Analysis ◽  
Court Of Justice ◽  
Eu Copyright Law ◽  
The Eu

AbstractThis article queries whether and to what extent works produced with the aid of AI systems – AI-assisted output – are protected under EU copyright standards. We carry out a doctrinal legal analysis to scrutinise the concepts of “work”, “originality” and “creative freedom”, as well as the notion of authorship, as set forth in the EU copyright acquis and developed in the case-law of the Court of Justice. On this basis, we develop a four-step test to assess whether AI-assisted output qualifies as an original work of authorship under EU law, and how the existing rules on authorship may apply. Our conclusion is that current EU copyright rules are generally suitable and sufficiently flexible to deal with the challenges posed by AI-assisted output.

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.

Argumentation of the Courts and Contemporary Legal Scholarship

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Court Case ◽  
Supply Side ◽  
Resale Price Maintenance ◽  
Goods And Services ◽  
Supreme Court Case ◽  
Resale Price ◽  
The One ◽  
Price Maintenance

This chapter analyzes existing U.S. Supreme Court case law with respect to, on the one hand, antitrust’s minimum resale price maintenance plans, bundling and tying practices, as well as refusals to deal, and, on the other hand, trademark law’s dilution, postsale, sponsorship, and initial interest confusion doctrines, including design patent and selected areas of copyright law. It demonstrates that courts, based on the free riding hypothesis, have come to protect increasing amounts of artificial shortage of everyday consumer goods and services and corresponding incentives to innovate. Through the preservation of such values, antitrust and intellectual property laws have evolved into “dilution laws” and have focused, almost exclusively, on the refurbishment of the technological supply side of our present-day digital economies rather than also on the human demand side of “creative consumption.”

Relevance of EU Copyright Law to (Future) Non-EU Member States

2019 ◽  
pp. 173-198
Author(s):  
Eleonora Rosati
Keyword(s):  
European Union ◽  
Case Law ◽  
Copyright Law ◽  
The European Union ◽  
Eu Member States ◽  
Exceptions And Limitations ◽  
Eu Copyright Law ◽  
Eu Directives ◽  
The Uk ◽  
The Impact

This chapter discusses the impact of CJEU copyright case law on national copyright regimes, even beyond the wording of EU directives as transposed into national legal systems. To this end, it focuses on the UK and, following a discussion of what immediate changes the departure from the EU and the EEA (Brexit) would have (also with regard to issues of exhaustion), it explores to what extent case law of the Court of Justice of the European Union (CJEU) has changed UK copyright law. EU decisions have had an impact in areas such as: copyright subsistence, subject matter categorization, primary/accessory liability, standard of infringement, exceptions and limitations, and enforcement (with particular regard to website blocking jurisprudence). Overall, this chapter shows the legacy of CJEU case law, and how pervasive the impact of such case law is.

scholarly journals The Supreme Court and deprivation of liberty: where are we now?

2015 ◽  
Vol 21 (6) ◽  
pp. 417-424
Author(s):  
Nick Brindle
Keyword(s):  
Supreme Court ◽  
Social Care ◽  
Case Law ◽  
Legal Implications ◽  
Health And Social Care ◽  
The Supreme Court ◽  
Mental Capacity Act 2005 ◽  
Low Threshold ◽  
Mental Capacity Act ◽  
Acid Test

SummaryDeciding on where the tipping point between restrictions and deprivation arises in care settings has important legal implications, but until recently case law has not much helped to resolve these challenging issues. An important milestone has been the Supreme Court judgment in the so-called Cheshire West case. This judgment, handed down in March 2014, set a low threshold to apply (the ‘acid test’) in deciding when someone may be being deprived of their liberty and therefore that additional legal authorisation is required. The application of the acid test is not straightforward and its effects are wide-ranging. In this article, I discuss the evolution of the concept of deprivation of liberty in health and social care, the implications of the judgment and the application of the acid test. I also briefly highlight the interface between the Mental Capacity Act 2005 and the Mental Health Act 1983.

scholarly journals Retelling Copyright: The Contributions of the Restatement of Copyright Law

2021 ◽  
Vol 44 (3) ◽  
Author(s):  
Jeanne C. Fromer ◽  
Jessica Silbey
Keyword(s):  
Historical Context ◽  
Case Law ◽  
Copyright Law ◽  
Professional Standards ◽  
Law Reform ◽  
Court Decisions ◽  
The Past ◽  
Dramatic Criticism ◽  
Federal Case ◽  
The Subject

The provisions at issue in the draft Restatement of Copyright Law on which ALI membership will vote at ALI’s upcoming annual meeting are central to copyright doctrine and have been the subject of numerous court decisions over the past several decades of technological and industry change: originality, fixation, categories of copyrightable subject matter, the idea-expression distinction, and authorship and ownership.  This abundance of legal activity on copyright law demonstrates the value to the profession of this project retelling copyright.  In contrast to the dramatic criticism of this Restatement project alleging political capture or illegitimate law reform, the draft’s provisions are routine and straightforward.  They will surprise no one and are almost boring in their adherence to and synthesis of the copyright statute and judicial interpretations of it. Far from being radical or ill-advised, the Restatement of Copyright Law is a reasonable and welcome addition to the work of the ALI. Part I of this Article situates the current Restatement of Copyright Law in the historical context of other ALI projects, drawing parallels in their purposes, processes, and political tensions. Part II describes the controversy over a “retelling” of copyright law as misguided insofar as it fails to account for the practice of interpretation as part of the practice of law that is constrained by professional standards.  Part III describes the analysis and exposition of the provisions of the draft portions of the Restatement of Copyright Law presented to the ALI membership for discussion and vote this year as unremarkable but also beneficial, achieving the ALI’s goals of clarification and simplification of the sprawling federal case law interpreting and applying the 1976 Copyright Act.

scholarly journals Implied Licences in Copyright Law

2021 ◽  
Author(s):  
Poorna Mysoor
Keyword(s):  
State Intervention ◽  
Case Law ◽  
Copyright Law ◽  
Copyright Owner ◽  
The Internet ◽  
Technological Environment ◽  
Competing Interests ◽  
Policy Goals ◽  
Judicial Reasoning

Implied licences can serve as a flexible and targeted mechanism to balance competing interests, including those of copyright owners and content users, especially in today’s dynamic technological environment. However, implication as a process is contentious and there are no established principles for implying copyright licences. The resulting uncertainty has led to incoherence, diminishing the value of implied licences in judicial reasoning. This book develops a methodical and transparent way of implying copyright licences, based on three sources: the consent of the copyright owner; an established custom; and state intervention to achieve policy goals. The frameworks proposed are customised separately for implying bare and contractual licences, where relevant. The book goes on to analyse the existing case law methodically in the light of these frameworks to demonstrate how the court’s reasoning can be made transparent. Underscoring the contemporary relevance of implied licences, the book tests and validates the methodology in relation to three essential and ubiquitous functions on the internet—browsing, hyperlinking, and indexing.

scholarly journals Online Music Piracy: Are Lawsuits The Best Approach?

2011 ◽  
Vol 2 (9) ◽  
Author(s):  
Claire R. La Roche ◽  
Mary A. Flanigan ◽  
Melanie B. Marks
Keyword(s):  
Undergraduate Students ◽  
Music Industry ◽  
Case Law ◽  
The United States ◽  
Copyright Law ◽  
Economic Consequences ◽  
Music Piracy ◽  
Online Music ◽  
Worldwide Phenomenon ◽  
Illegal Downloading

<p class="MsoBodyText" style="text-align: justify; line-height: normal; margin: 0in 0.5in 0pt;"><span style="color: black; font-size: 10pt; mso-bidi-font-style: italic;"><span style="font-family: Times New Roman;">In the age of digital technology, perfect copies of sound recordings may be easily made and shared in violation of copyright law.<span style="mso-spacerun: yes;">&nbsp; </span>Music piracy in the form of illegal downloading is a worldwide phenomenon that has a significant impact on the music industry.<span style="mso-spacerun: yes;">&nbsp;&nbsp; </span>In response to the perceived threat to the music industry, lawsuits have been filed in the United States and abroad based on copyright infringement for illegally downloading music. This paper examines copyright law, case law, and recent litigation.<span style="mso-spacerun: yes;">&nbsp; </span>In the wake of legal efforts to curtail illegal downloading, a survey of 112 undergraduate students was conducted in an effort to determine whether the lawsuits filed by the music industry are a deterrent to downloading music.<span style="mso-spacerun: yes;">&nbsp; </span>Potential solutions are proposed and economic consequences discussed.</span></span></p>

scholarly journals Moral Rights: Exploring the Myths, Meanings and Misunderstandings in Australian Copyright Law

2018 ◽  
Vol 21 (1) ◽  
pp. 71 ◽  
Author(s):  
Francina Cantatore ◽  
Jane Johnston
Keyword(s):  
Case Law ◽  
Copyright Law ◽  
Moral Rights ◽  
Recent Case ◽  
Wide Scope ◽  
Unique Character ◽  
Australian Case ◽  
Economic Nature

This article examines how moral rights are treated in Australian publishing contracts, and whether this approach is consistent with the expectations of authors, journalists and academics. Although, in theory, moral rights cannot be sold or assigned in Australia, the apparent wide scope for exceptions raises questions of whether there is any real protection afforded to creators under the Copyright Act 1968 (Cth), notably in circumstances that relate to pressure on creators to accept contractual terms in order to get published. Additionally, Australian case law reflects some uncertainty about the traditionally accepted non-economic nature of moral rights. The article examines recent case law in this field, found in Meskenas, Perez and Corby, and considers the literature associated with development of moral rights in Australia. It then presents the findings of a two-part study of moral rights in Australia; first through the results of interviews with 176 Australian authors, journalists and academics, followed by an analysis of 20 publishing contracts. It concludes that — in some, but not all, instances — a combination of the exceptions allowed under the Act and practical exigencies have diluted the unique character of authors’ moral rights and have created an environment of uncertainty.

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