Fair Use is Not Civil Disobedience: Rethinking the Copyright Wars and the Role of the Academic Library

Copyright Law and Science

As automation supplants more forms of labor, creative expression still seems like a distinctly human enterprise. This may someday change: by ingesting works of authorship as “training data,” computer programs can teach themselves to write natural prose, compose music, and generate movies. Machine learning is an artificial intelligence (AI) technology with immense potential and a commensurate appetite for copyrighted works. In the United States, the copyright law mechanism most likely to facilitate machine learning’s uses of protected data is the fair use doctrine. However, current fair use doctrine threatens either to derail the progress of machine learning or to disenfranchise the human creators whose work makes it possible. This Article addresses the problem in three parts: using popular machine learning datasets and research as case studies, Part I describes how programs “learn” from corpora of copyrighted works and catalogs the legal risks of this practice. It concludes that fair use may not protect expressive machine learning applications, including the burgeoning field of natural language generation. Part II explains that applying today’s fair use doctrine to expressive machine learning will yield one of two undesirable outcomes: if US courts reject the fair use defense for machine learning, valuable innovation may move to another jurisdiction or halt entirely; alternatively, if courts find the technology to be fair use, sophisticated software may divert rightful earnings from the authors of input data. This dilemma shows that fair use may no longer serve its historical purpose. Traditionally, fair use is understood to benefit the public by fostering expressive activity. Today, the doctrine increasingly serves the economic interests of powerful firms at the expense of disempowered individual rightsholders. Finally, in Part III, this Article contemplates changes in doctrine and policy that could address these problems. It concludes that the United States’ interest in avoiding both prongs of AI’s fair use dilemma offers a novel justification for redistributive measures that could promote social equity alongside technological progress.

A legal system that simultaneously recognizes both a right of free speech and proprietary interests in forms of expression should be prepared to resolve the inevitable conflicts. Direct appeals to the first amendment are appearing more frequently in copyright litigation. This Article attempts to structure a workable accommodation between the first amendment and the property rights in "original works of authorship" granted by federal copyright law. Copyright law, by taking care to distinguish between ideas and expression, has long respected basic first amendment values. Many of the remaining conflicts can be resolved by means of traditional fair use analysis. But if the fair use doctrine is left to carry the constitutional burden unaided, it may eventually cease to perform effectively its traditional functions. The ultimate response to the confrontation between free speech and copyright should be the recognition of an independent first amendment privilege. The necessity for the appropriation should be examined to identify those situations in which the user cannot adequately exercise the right of free speech without at least limited access to copyrighted expression. When traditional copyright doctrines do not provide such access, a first amendment privilege should be recognized to the extent necessary to enable users to contribute their ideas to the public dialogue. The recognition of this narrow yet significant first amendment privilege will safeguard not only freedom of speech, but the integrity of the copyright system as well.

Using Existing Research Instruments: Copyright, Permission, and Fair Use

Notes on Intellectual Property: Copyright Law

Self-plagiarism: Oxymoron, fair use, or scientific misconduct?

The paradigmatic roles of copyright and patent laws have been, respectively, to protect original authorial expressions from illicit copying and novel and nonobvious functional designs (if they have been appropriately claimed and examined by patent officials) from illicit uses. It would be convenient if copyright law could be assigned the role of protecting the expression in computer programs and patent law the role of protecting program functionality. While courts continue to try to distinguish between program expression and program functionality, this distinction has proven elusive in the decades since the U.S. Congress decided to extend copyright protection to computer programs.For more than twenty years, a series of court cases have held that copyright infringement does not occur when a second comer needs to copy some aspects of another firm’s program in order to achieve compatibility with other programs. Courts have deemed the functional requirements for achieving compatibility to be unprotectable elements of these copyrighted programs, even though more than a modicum of creativity may have imparted originality to these elements.The seeming consensus that program interfaces necessary for interoperability are unprotectable by copyright law was recently called into question by the Court of Appeals for the Federal Circuit (CAFC) in Oracle Am., Inc. v. Google Inc. At issue was whether the command structure of certain elements of the Java application program interface (API) was protectable by copyright law. The CAFC reversed a lower court ruling that this command structure was an unprotectable method of operation, or alternatively that copyright protection was unavailable under the merger doctrine. The CAFC was untroubled by the prospect that software developers might obtain both patent and copyright protection for APIs of computer programs. There was, in its view, no need to sort out functionality and expression in computer programs. Copyright could protect both as long as there was a modicum of creativity to support the claim of copyright. The Oracle decision has rekindled a decades-old debate, which many had thought had been settled in the late 1990s, about the proper scope of copyright protection for computer programs and how courts should go about analyzing claims of software copyright infringement. The U.S. Supreme Court decision not to review the Oracle decision leaves the CAFC ruling intact for the time being.This Article takes issue with the CAFC’s ruling and analysis. It aims to provide guidance about how courts should assess claims of copyright infringement in computer program cases. Part II reviews some key software copyright decisions and explains why the Second Circuit’s test for software copyright infringement is more compatible with traditional principles of copyright law than the Third Circuit’s is-there-any-other-way-to-do-it test. The Second Circuit recognized that sometimes external factors, such as the need to be compatible with other programs, constrain the design decisions of subsequent programmers, and when this happens, those constraints limit the scope of copyright protection in programs. While there is much in the Second Circuit’s ruling to praise, that court failed to heed the statutory directive in 17 U.S.C. § 102(b) that procedures, processes, systems, and methods of operation should also be filtered out before making judgments on copyright infringement claims in software cases. Part III articulates five propositions about § 102(b) that should be uncontroversial. It explains the important role that § 102(b) has played in numerous computer program cases. It goes on to discuss numerous respects in which the CAFC in Oracle misinterpreted § 102(b), as well as numerous cases in which courts have held that aspects of programs that are necessary for achieving interoperability with other programs or hardware are too functional to be protected by copyrights. Part IV explains why the merger doctrine has an important role to play in the assessment of infringement claims involving computer programs and why the CAFC erred in its interpretation of this doctrine. Courts should explicitly recognize a merger of function and expression doctrine in computer program cases. This doctrine usefully complements analysis of elements that may be unprotectable under § 102(b) as necessary incidents to the reimplementation of an unprotectable method or process.Part V considers the roles that copyright and patent law should play in protecting program innovations, with particular attention to how courts should assess claims that copyright protection should be unavailable to aspects of programs that might be eligible for patent protection. The CAFC in Oracle conflated copyright and utility patent protections for software as though it was unnecessary to even try to distinguish program expression and functionality. Part VI offers a pragmatic approach to distinguishing between program functionality and expression in copyright cases and a refinement of the Second Circuit’s test for software copyright infringement that is consistent with the overwhelming majority of software copyright cases (even if not with the CAFC’s Oracle decision) and traditional principles of copyright law. Competition and ongoing innovation will better thrive when the scope of copyright protection is relatively thin, allowing programmers to reuse functional design elements and know how that will promote the progress of science and useful arts, as the Constitution directs.

“They’re creepy and they’re kooky” and They’re Copyrighted: How Copyright Is Used to Dampen the (Re-)Imagination

Introduction:Film and Copyright John Belton American copyright law, based on the 1710 British Statute of Anne, is grounded in the US Constitution. Article 1, Section 8 provides Congress with the power to award authors and inventors a limited monopoly over their work. The purpose of copyright protection was, 'To promote the progress of science and useful arts, by securing, for limited times to authors and inventors, the exclusive right to their respective writings and discoveries'. As stated in the 1984 Sony Corp. v. Universal City Studios decision, copyright serves an important public function: 'It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired'. In 1790, US copyright law limited copyright protection to two 14 year terms. The length of the terms increased periodically until the 1909 Copyright Act when it was settled at two 28 year terms. In 1976, a revision in copyright law extended protection to the life of the author plus fifty years (or seventy-five years for a work for hire). In 1998, the Copyright Term Extension Act tacked on an additional twenty years of protection to works published prior to 1978. Motion pictures were not covered as such by copyright law until the 1912 Townsend Amendment included them among the types of works covered. As Peter Decherney notes in his essay on 'Copyright Dupes', motion picture companies, such as the Edison Mfg. Co., initially attempted to copyright their films as photographs, relying on legislation dating back to 1865 that included photographs as copyrightable works. Looking at this pre-1912 period, Decherney likens it to the current concern for Digital Rights Management in the face of new media and the threat of piracy, arguing that new media always challenges the adequacy of existing law and frequently results in actual piracy or charges of piracy. Prior to the 1976 Copyright Act, copyrighted works fell into the public domain after 28 years if their copyrights were not properly renewed. In 'Forgotten Faces: Why Some of Our Cinematic Heritage is Part of the Public Domain', David Pierce explains how hundreds of American films from the studio era lost their copyright protection. Readers interested in motion pictures in the public domain may wish to explore the following web site: www.publicdomaintorrents.com As noted earlier, successive copyright term extensions, driven by intensive lobbying activities of crucial intellectual property industries – in particular, through the lobbying activities of the music and motion picture industries, have virtually eliminated the notion of a public domain. Copyright law secures for the copyright holder a series of exclusive rights (to reproduce it, to prepare derivative works based on it, and to distribute or perform it), but it also acknowledges limits to the authors' rights – not merely in terms of duration but in terms of scope. Users of copyrighted material, such as the public (including scholars), also have certain rights acknowledged by copyright law. After a first sale, for example copyrighted works can be resold without the permission of or payment of a fee to the copyright holder. Used book, record, CD, and video stores (and internet sites such as Netflix) can thus legally re-sell or rent copyrighted material. Of course, what is being sold or rented is just a physical copy of the work, not any rights pertaining to it. And the first sale doctrine does not apply to electronic material that requires copying in order for it to be resold or transferred. The Copyright Act of 1976 includes a section (#107) that provides for 'limitations on [the author's] exclusive rights' in the form of 'Fair Use'. Fair use includes reproduction of the work 'for purposes such as criticism, comment, news reporting, teaching ... scholarship, or research'. However, as in the case of the duration of copyright terms, the concept of Fair Use has also undergone a process of redefinition in recent years. Copyright holders have attempted to control the use of their intellectual property. The Digital Millennium Copyright Act of 1998 sought to ensure that digitized intellectual property could be used/consumed only in...

Clouds are on the horizon for software copyrights. The open source movement is actively trying to turn copyright into “copyleft.” Courts around the world are reshaping the first sale doctrine, notably the European Court of Justice in UsedSoft v. Oracle not to mention the United States Court of Appeals for the Ninth Circuit in Autodesk v. Vernor. Software manufacturers are fleeing from distribution models toward service models—into the cloud. A perfect storm for software copyrights is brewing. The cloud promises to enable software publishers to place their code outside both the framework of copyright exhaustion under the first sale doctrine and the “distribution trigger” in open source code license terms. Users’ inability, in the cloud context, to directly access the underlying software threatens to exert various side effects, notably affecting software interoperability. New kids on the block lose the ability to reverse engineer hosted software. Established platform providers gain the ability to prevent interoperability, based on laws prohibiting interference with computers and technical protection measures. These developments risk upsetting the delicate balance between exclusive rights for copyright owners and access privileges for the public—a balance that courts and legislatures have carefully established over the years—in order to foster creativity and innovation. With unprecedented pressure on traditional distribution models, how will copyright law cope? In our Article, we attempt to illuminate the immediate path ahead, discuss possible answers, and pose more questions. © 2015 Lothar Determann and David Nimmer. Opinions expressed herein reflect only the authors’ views, and should not be imputed to their universities, firms, clients, or others. † Lothar Determann teaches computer, internet, and data privacy law at Freie Universitat Berlin; University of California, Berkeley, School of Law; and Hastings College of the Law, San Francisco and practices technology law as a partner with Baker & McKenzie LLP, admitted in California and Germany. †† David Nimmer teaches domestic and international copyright at the UCLA School of Law and as a guest at various other institutions. He has represented a wide array of clients in copyright matters at Irell & Manella LLP. 162 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 30:1

The law of Copyright Act 1957 has been giving protection to literary, dramatic or musical works, artists, cinematograph film and sound record. Now days it has been challenging even in the field of research publications, thesis and patent. In this paper the Researchers focus on the laws of copyrights and libraries, also on the challenges and issues of copyright. Some of the cases related to the copyright are also discussed. Keywords: Copyright Laws, Library, Infringement of copyright, Intellectual Property, Licenses Cite this Article Vishwasrao S Mane, Namita Khot. Copyright Act, 1957: A Study with Reference to Selected Cases in India. Journal of Advancements in Library Sciences. 2019; 6(Special Issue 1): 336s–341s.

Kebaya, as an Indonesian woman traditional costume, is one of the national cultural assets that its conservation should be preserved. Based on that matter, several kebaya designers have developed kebaya through some modifications making it to be fashionable clothes that are able to draw interests. One of kebaya designers developing modified kebaya is Anne Avantie. Even today, the works of kebaya by Anne Avantie have been recognized both in national and international levels through the attained achievements. It is showed by her achievement and society acknowledgment. However, together with the existence achieved by her, many plagiarisms have occurred concerning the works of kebaya by Anne Avantie. The copyright violation ofAnneAvantie's modified kebaya which is established by the plagiarism act in a lot of cases shows the highly copyrights violation of her creation. However, Anne Avantie's modified kebaya is included in the protected creation according to Article 12 letterfofthe Indonesian Copyright Act No. 19 Year 2002. Therefore, Anne Avantie, as tf?e creator of the kebaya created by her, receives exclusive rights upon the copyrights of the kebaya to prohibit other people to use those rights without any permission from its creator. The Indonesian Copyright Act No. 19 Year 2002 has been provided enough protection for any creator's creation, including modified kebaya. Thus, the awareness of involved parties in realizing the maximum law enforcement concerning copyrights is required in order to increase the desire of creators to produce their works. Beside that, we need to socialize the importance of the appreciation and protection of copyrights to the creator itself and society.

The Forgotten Right of Fair Use

Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: law and international transactions of copyrighted material; economic analysis of copyright and freedom of expression; music licensing in the digital age; the role of copyright in stimulating cultural development; internet distribution of copyright material; and the problems of licensing museum images. A great deal has been written on the theoretical aspects of copyright and the cultural industries but much less on the applied side – how copyright law works in practice. How do lawyers, firms and artists manage and administer copyright and what economic and legal problems does this raise? In recent times in particular, technological inventions appear to have outpaced the development of copyright law. This illuminating book addresses these issues and looks at the serious implications for copyright policy in the future. Several of the authors question the efficacy of copyright, which is increasingly regarded as benefiting multinational organisations rather than individual authors and performers. Others are less critical of copyright per se, but question its ability to meet the new challenges of a digital era. Some of the specific issues covered include: • law and international transactions of copyrighted material • economic analysis of copyright and freedom of expression • music licensing in the digital age • the role of copyright in stimulating cultural development • internet distribution of copyright material • the problems of licensing museum images. International in scope and offering views from both academics and practitioners, this book will interest and inform economists, lawyers and policymakers alike. Commercial managers and business analysts involved with copyright would also benefit from reading this comprehensive yet accessible book.

ONS and Intellectual Property