Doctrine Of Fair Use Research Articles

The Limits of Legal and Illegal Video Game Streaming

The paper deals with the boundaries of legal and illegal use of a video game as a complex object when streaming a video game. The author proposes to reconsider the trend towards broad legal protection of copyright holders in the context of a global information and digital society. The article presents an amended doctrine of fair use in order to establish the fact of fair and unfair use of a video game by a streamer, which will allow determining in the stream whether there are grounds for recognizing it as a case of free use, that is, recognizing the stream as fair or unfair. Thus, the use of this modified doctrine will allow the establishment and application of the institute of fair use for video game streaming. The paper also suggests a procedure for resolving disputes between the copyright holder and the streamer.

Legal status of neural: through the prism of judicial practice

The article analyzes the practical side of understanding neural networks in the legal aspect on the basis of case law of the USA, UK, Australia, EU and China and foreign legislation, in particular, the Copyright, Designs and Patents Act 1988; the Digital Millennium Copyright Act; the Indian Copyright Act; the Irish Copyright and Related Rights Act; the New Zealand Copyright Act, with practical examples.
 The following main aspects of neural networks functioning are mentioned: copyright subjects; the place of the object generated by a neural network in the legal dimension; neural network training materials, ways of obtaining them, and conflict issues.
 The current case law on neural networks and objects generated by them is divided into the following thematic groups: disputes concerning the determination of the copyright holder, establishment of legal personality and aimed at confirming the universal rule regarding an individual as an author; cases focusing on the possibility of copyright protection of specific objects generated by a particular neural network; disputes concerning the formation of a legal dimension for neural network training materials.
 Modeled groups of situations that may be reflected in different circumstances of the functioning of a neural network and artificial intelligence. The author emphasizes the legally significant component of a neural network. Attention is drawn to the doctrine of fair use and the concept of «temporary acts of reproduction», together with their sources and main features. Potentially negative consequences of copyright infringement by neural networks are also outlined.
 As conclusions, identified gaps in the legal regulation of neural networks and objects generated by them, which is reflected, in particular, in the lack of practical significance of a number of legal norms and doctrines in the context of dispute resolution and the existence of contradictions in the ideas regarding the criteria of originality and important nuances in cases of establishing or denying copyright infringement within the process of training neural networks on specific materials. The author emphasizes the need for further research in the field of law and technology.

I Did You a Favor By Taking Your Work: Reconsidering the Harm-Based Approach To the Fourth Fair Use Factor

American copyright law is predominantly utilitarian. Fair use—codified to promote copyright’s utilitarian goals—has emerged as one of the most nebulous doctrines in American law. This is partially by design. Passing the Copyright Act of 1976 (the “Act”), Congress sought to endorse “the purpose and general scope of the judicial doctrine of fair use,” but made clear that “there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change.” This judicial deference—combined with the case-by-case nature of fair use determinations—has led to evolving and inconsistent applications of section 107.
 Interpretation of section 107(4), which instructs courts to consider “the effect of the use upon the potential market for or value of the copyrighted work,” is illustrative. Though a plain reading of section 107(4) leaves room for consideration of all market effects, most courts and commentators agree that the inquiry into this factor concerns only deleterious effects on the copyright owner’s actual or potential markets. Some have expressed hostility toward consideration of positive market effects on the ground that an infringing use that might improve sales of a copyrighted work is also likely to invade the market for derivative works.
 In limited circumstances, courts and commentators have recognized the relevance of an unauthorized use providing financial gain for a copyright holder. In Authors Guild, Inc. v. Google Inc., Judge Chin indicated that Google Books increased exposure and sales for the copyright holders, concluding that “the fourth factor weighs strongly in favor of a finding of fair use.” While the Second Circuit declined to adopt Judge Chin’s explicit reasoning, Authors Guild remains a powerful endorsement of the plain reading of section 107(4). In Google LLC v. Oracle Am., Inc., the Supreme Court indicated that analysis of the fourth factor should weigh public benefits against private harms, endorsing a more holistic balancing of interests. In the wake of a reinvigorated fourth factor, it is worth reassessing whether economic benefits from infringement have any place in the market impact inquiry.
 This Note addresses the current status of market benefits: monetary gains conferred upon a copyright holder by a third party’s unauthorized use of a copyrighted work. While courts are still unwilling to treat market benefits as dispositive, they are moving away from the view that the fourth factor concerns only market harm. Expanded analysis of a fourth factor now balances private economic effects, public benefits, and in some cases, non-monetary concerns related to the value of a work. Market benefit proponents assert that their inclusion is more in line with the text and history 1976 Act, as well as the overall goals of copyright. Further, weighing market benefits against market harms helps to address problems related to circularity.
 This Note considers the viability of market benefits as both a dispositive and a relevant component of fourth factor interpretation. Part I provides a basic overview of the traditional approach to the fourth factor before defining and distinguishing between different types of market benefits. Part II analyzes recent caselaw acknowledging market benefits and proposes a framework for proving market benefits as part of a reinvigorated fourth factor. Part III addresses the viability of market benefit arguments across different sectors of copyrighted works and the possible implications of increased acceptance. It concludes that, despite enhanced recognition, market benefits still lack widespread applicability and are unlikely to change the outcome of any present fair use determination.

Мерч-продукция и мерчандайз-активность как объекты гражданских прав при экономике впечатлений

Today, such objects of civil legal relations, such as merch-products (stylized clothing, attributes) and merchandise-activity, are becoming increasingly important, that is, visiting thematic parks, quests and other activities, allowing you to plunge into the world of your favorite films and books. Consumers are not enough to receive standardized goods, they need impressions that meet their unique aesthetic and cultural preferences. The article discusses the legal aspects of the phenomenon of fan activity and related issues of protection of intellectual rights. According to the resuits of the article, the urgency of the doctrine of fair use is noted, according to which the free dissemination of the results of intellectual activity during merchandis activity is allowed, if it contributes to the development of arts and cultural progress. Currently, however, neither the Civil Code of the Russian Federation nor any other applicable regulation mentions concepts referring to merch or merchandise. Disputes relating to fan activity are governed by the general principles of civil law as well as by the provisions of Part 4 of the Russian Civil Code dealing with copyright or trademark protection. For example, according to Article 1482 of the Civil Code of the Russian Federation, verbal, pictorial, volumetric and other designations may be registered as trademarks. Accordingly, under Russian law, local producers of confectionery products may also be sued for selling cakes with an image of Cinderella or Bambi by representatives of the rights holder of the relevant trademark. However, the application of the general provisions of the Civil Code to obligations arising from such unique objects of civil legal relations as children's parties, quests, participation in theme camps, role-playing games or other merchandising activities has certain peculiarities. The protection of exclusive rights in these markets must take into account the goals of stimulating innovation and cultural and technological progress. In our country, the three-step test is partly enshrined in Part 5 of Article 1229 of the Civil Code of the Russian Federation, according to which the use of the results of intellectual activity is allowed without the consent of the right holders if it does not cause unjustified damage to the ordinary use of intellectual property or otherwise infringe upon the legitimate interests of the right holders. In addition, Article 1274 of the Civil Code permits free use of the work for informational, scientific, educational or cultural purposes. Consequently, merchandising activity cannot be recognised as infringing the interests of right holders because, based on the systematic interpretation of Articles 1229 and 1274 of the Civil Code of the Russian Federation, a fan reworking does not displace the original work from circulation. The author declares no conflicts of interests.

EDUCATIONAL FAIR USE & DIGITAL LEARNING: COMPARATIVE STUDY BETWEEN INDONESIA & MYANMAR

The utilization of copyrighted works for educational purposes under the doctrine of fair use is globally accepted, however, the limit and the implementation measures are not clearly defined. In the age of digital learning where the creation, utilization, and dissemination of information in general and copyrighted works, in particular, have become borderless, it’s critical to analyze the proper implementation of educational fair use. Using juridical normative approach combined with analytical study and comparative study between Indonesia and Myanmar Copyright Law, this research found that both Indonesia and Myanmar Copyright Law provide important exceptions that are specifically aimed at non-commercial educational purposes and public library archival context, however, the implementing regulations of the educational fair use still non-existence. To optimally and effectively implement the doctrine of fair use for educational purposes in the digital age it’s important to adopt globally accepted official guidelines to determine educational fair use more comprehensively followed by synergy, partnership, and collaboration between government, academics, and libraries in formulating both legal and digital infrastructures to guarantee that the implementation of educational fair use in digital age learning complies with national legislation and compliance with international copyright regulations. Keywords: Copyright Law, Digital Learning, Educational Fair Use.

Merchandise-Activity as an Object of Civil Law and the Doctrine of Fair Use

The article discusses the legal aspects of the phenomenon of fan activity and related issues of protection of intellectual rights. The features of such an object of civil law as merchandise-activity of fans of certain audiovisual or literary works are analyzed. Special attention is paid to the aesthetic theory of J. Dewey about the value of creativity in the context of social communications: repetition and copying can be key components of the learning, creativity and innovation process. According to the results of the study, there is a conclusion about the relevance of the doctrine of conscientious use, according to which the free dissemination of the results of intellectual activity during merchandise-activity, if it contributes to the development of arts and cultural progress.

Fair Use Provisions under the Indian Copyright Act: Awareness Among Librarians of Colleges and Universities in Maharashtra

Indian Copyright Act, 1957 provides a private right in copyright which extensively deals with provisions that guarantee access to knowledge as well. Copyright is an exclusive and assignable legal right given to the author for a particular period for original literary, dramatic, artistic works, and musical work whether published or unpublished. These rights are not absolute but subject to restrictions and limitations imposed by law. Section 52 of the Copyright Act, 1957 is one such provision that restraints the exclusive enjoyment of rights given to the copyright holder. As per Section 52 (1)(o) of the Copyright Act, 1957 a non-commercial library is permitted/allowed to make three copies of a book for library use, provided such books are not available for sale in India. The present article is about the concept of fair dealing which is originated from the Common of laws of England. Although, the concept of fair use and fair dealing are used synonymously, the Indian Copyright Act, 1957 deals with fair dealing under Section 52 of the Copyright Act, 1957. The reproductions of works for research or private study, taking photocopy for research and educational purpose, etc., are covered under the doctrine of fair use. This paper will explain the conceptual framework of the Indian Copyright Act and the empirical reality in libraries of Maharashtra. It attempts to empirically test the usage of fair use provisions under the Indian Copyright Act and the awareness among librarians of Colleges and Universities in Maharashtra. The research methodology used for the present study is both doctrinal and non-doctrinal. It was observed that most of the librarians are aware of Copyright Law and copyright exceptions but when it comes to the implementation librarians also face difficulty and it leads to the infringement of copyright.

PENERAPAN DOKTRIN FAIR USE TERHADAP PEMANFAATAN HAK CIPTA PADA PLATFORM DIGITAL SEMASA COVID 19 DI INDONESIA

The Covid-19 pandemic has resulted in more people doing activities from home, so almost all activities are carried out online, including for educational activities. The problems on this research are how the comparison between fair use regulations in Indonesia and in the United States during the pre-Covid-19 pandemic? How the regulations of the doctrine of fair use to anticipate the occurrence of a new phenomenon regarding the use of copyright on digital platforms during and/or after the Covid-19 pandemic? The method used in writing this law is a normative juridical method. The results of the study conclude that Fair use rules in Indonesia already regulate that fair use will not harm the legitimate interests of creators but does not provide clear parameters regarding fair interests. While the Fair use Arrangements in the United States are regulated in 17 U.S. Code 107. In this regulation, there are 4 factors, namely: the purpose and character of the use, the nature of the copyrighted work, the quantity and importance of the material used, the effect of the use upon potential market or value of the copyrighted work. The Covid-19 pandemic gave rise to fair use cases that had never occurred before the outbreak of Covid-19, e.g. the case of The Internet Archive, it can be observed that there is an encouragement from the public to further relax copyright protection because of the Covid-19 pandemic resulting in the public interest having to be carried out rather than the creators and copyright holders.

ГРАНИЦЫ ИСКЛЮЧИТЕЛЬНЫХ ПРАВ НА ПРОГРАММЫ ДЛЯ ЭВМ

In the article, the author examines time, content and object boundaries of exclusive rights to computer programs. It has been substantiated that the meaningful boundaries of exclusive rights should be established through a closed list of cases of free use. At the same time, the balance sheet doctrine of fair use, supplemented by the concepts of “transformative use”, cannot serve as a tool for establishing such boundaries. At the same time, in order to resolve atypical conflicts of interest arising in relation to a specific object of copyright between a person interested in access to such an object and the rightholder, standards for assessing the behavior of the rightholder should be developed – special (in relation to Article 10 of the Civil Code of the Russian Federation) limits for the implementation of exclusive right. With regard to the object boundaries of rights to computer programs, it was concluded that they are established by means of the “traditional” concept of copyright “protected form – unprotected content” and the doctrine of “essential part”. The principle of exhaustion of rights should not apply to such objects.

ОБМЕЖЕННЯ МАЙНОВИХ АВТОРСЬКИХ ПРАВ В УКРАЇНІ І США: ПОРІВНЯЛЬНО-ПРАВОВИЙ АСПЕКТ

The article compares the American copyright system (from its inception, borrowing the basics of the English system to the establishment of the principle of "fair use") and the Ukrainian system, which provides a specific list of cases allowed as a restriction of copyright (enumerated system) by establishing in national legal acts of the three-stage test provided by the Berne Convention. The article examines not only the legislation of Ukraine and the United States in this area, such as: the Federal Copyright Act of 1790, the second Federal Copyright Act of 1909, the Copyright Act of 1976, the Civil Code of Ukraine, the Law of Ukraine "On Copyright law and related rights" but also the case law of the United States, which is a key element in regulating disputes in the area under discussion. The author analyzes a number of cases through the prism of changing approaches in the US system of property rights restrictions, namely Philpot v. Media Research Center Inc. No. 1: 17-cv-822 dated January 8, 2018; Peteski Productions, Inc. v. Leah Rothman No. 5: 17-CV-00122 dated August 30, 2017; Rosen v. eBay, Inc., No. 2: 13-cv-06801-MWF-E of 16 January 2015 and Corbello v. DeVito No. 2: 08-cv-00867-RCJ-PAL June 14, 2017. As a result of the research, the author determines that the national legislation establishes an exhaustive list of works that are its objects, at the same time, the ways of using the work depend on the type of particular work. Therefore, an exhaustive list of all possible ways to use the works is not provided. U.S. law provides for an exhaustive list of copyrighted works and an exhaustive list of ways to use such works. And the doctrine of "fair use" in the United States provides that in determining whether the use of work in any particular case is fair, there are at least 4 factors to consider. Keywords: the principle of "enumerated system", the system of "numerus clausus", the concept of "exceptions and limitations", US copyright law, the doctrine of fair use, the Agreement on guidelines for copying in non-profit educational institutions, free use of works, three-stage test.

Copyright in Digital Television Broadcasting in Kenya: An Analysis of the Royal Media Services Case

Kenyan superior courts missed an opportunity to discuss and authoritatively settle the law on the nature of copyright in broadcasts and the effect of the must carry rule in digital broadcasting through their decisions in the Royal Media Services case. The Supreme Court, in arriving at its decision, failed to be guided by Kenyan law on copyright in broadcasts and the must carry rule in three key areas. First, the Supreme Court relied on the Philippines’ decision on the definition of a broadcasting organisation without considering the provisions of the Copyright Act (Chapter 130) and the Kenya Information and Communication Act (Chapter 411). Second, the Supreme Court relied on the doctrine of fair use as envisaged in the Philippines copyright regime, yet Section 26 of the Kenyan Copyright Act provides for fair dealing. Third, the Supreme Court relied on the public interest defence without discussing its basis and establishing its parameters, especially since public interest is not provided for in Copyright Act. The Supreme Court erred in determining that rebroadcasting of local broadcasts by subscription television licencees was not an infringement of copyright in broadcast.

Norms-Shifting for Digital and Online Arts Practice: Copyright and Fair Use in the Visual Arts Community

Abstract This study tracks changes in behavior and attitude among visual arts professionals after the development of a code of best practices in the copyright doctrine of fair use. A survey of 2,400 professionals fielded only months after its publication demonstrated broad awareness of the code, informing practice and inspiring efforts to spread awareness. The greatest degree of awareness and change was among editors, several of whose publications altered their copyright policies. Professional and social networks were critical to spreading awareness. Despite a continuing lack of confidence in interpreting the law among individual professionals, the existence of a code contributed to significant change in norms and practices via institutional adoption. This study demonstrates that codes of best practices can affect field behavior, but that change depends on publicity, formal education, continuing support for early adopters, and institutional policy changes.

Web-based Learning: How fair is ‘Fair use’

The word ‘Web-based learning’ sounds good but smells bad when it comes to share the study material online in context of copyright laws. The current problem is that teachers are under the impression that everything they want to share with their students online finds protection under the Doctrine of Fair use under Copyrights law but the unfortunate part is he is totally unaware about the fact that sharing the study material online may not qualify as fair use if the same is shared with students enrolled in an online course outside the campus. The need of the present paper is to make Universities and teachers working there aware about the use of Web based learning without violating the copyright laws of the land. The paper is purely conceptual and only available literatures have been taken in updating the paper following the doctrinal method of study.

Web-based Learning: How fair is ‘Fair use’?

The word ‘Web-based learning’ sounds good but smells bad when it comes to share the study material online in context of copyright laws. The current problem is that teachers are under the impression that everything they want to share with their students online finds protection under the Doctrine of Fair use under Copyrights law but the unfortunate part is he is totally unaware about the fact that sharing the study material online may not qualify as fair use if the same is shared with students enrolled in an online course outside the campus. The need of the present paper is to make Universities and teachers working there aware about the use of Web based learning without violating the copyright laws of the land. The paper is purely conceptual and only available literatures have been taken in updating the paper following the doctrinal method of study.

Web-Based Learning: How Fair is ‘Fair Use’?

The word ‘Web-based learning’ sounds good but smells bad when it comes to share the study material online in context of copyright laws. The current problem is that teachers are under the impression that everything they want to share with their students online finds protection under the Doctrine of Fair use under Copyrights law but the unfortunate part is he is totally unaware about the fact that sharing the study material online may not qualify as fair use if the same is shared with students enrolled in an online course outside the campus. The need of the present paper is to make Universities and teachers working there aware about the use of Web based learning without violating the copyright laws of the land. The paper is purely conceptual and only available literatures have been taken in updating the paper following the doctrinal method of study.

Word N-Gram Based Advice for Word Sense Disambiguation in Telugu Natural Language Processing

The word ‘Web-based learning’ sounds good but smells bad when it comes to share the study material online in context of copyright laws. The current problem is that teachers are under the impression that everything they want to share with their students online finds protection under the Doctrine of Fair use under Copyrights law but the unfortunate part is he is totally unaware about the fact that sharing the study material online may not qualify as fair use if the same is shared with students enrolled in an online course outside the campus. The need of the present paper is to make Universities and teachers working there aware about the use of Web based learning without violating the copyright laws of the land. The paper is purely conceptual and only available literatures have been taken in updating the paper following the doctrinal method of study

Fair Use As Resistance

Making fair use of copyrighted material can, itself, be a form of resistance, upending traditional hierarchies and disrupting the creator/consumer dichotomy that copyright law otherwise presumes. Using the theoretical framework of Mikhail Bakhtin, one may frame the doctrine of fair use as enabling the “carnivalesque,” in which free expression facilitates interaction among disparate groups, eccentric behavior is permitted, participants are considered equal in a way that defies socioeconomic and political expectations, and transgressive or subversive behavior can occur without punishment. Fair use is a right, permitting all to resist the dominance of exclusive rights-holders, and marginalized groups often employ fair use practices to “talk back” to dominant culture and to establish communities of belonging that strengthen their identities and senses of self. However, framing fair use practices as carnivalesque also reveals underlying hierarchies implicit in copyright law. Indeed, discourse surrounding fair use often relies on hierarchical notions of authenticity and power, and fair use jurisprudence often reflects hierarchical assumptions regarding the corporate/personal divide and regarding race, class, and gender. This Article explores the theoretical and discursive implications of framing fair use as a mechanism for resistance.

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

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

The impact of copyright permissions culture on the US visual arts community: The consequences of fear of fair use

As digital opportunities emerge in the visual arts—to produce multimedia art and digital scholarship, publish online, and hold online museum exhibitions—old copyright frustrations have worsened in a field where getting permissions is routine. A national survey of 2828 visual arts professionals, combined with 100 in-depth interviews of visual arts practitioners throughout the United States, explored how visual arts professionals use the US copyright doctrine of fair use. Results showed widespread lack of confidence and misconceptions about fair use; resulting exaggerated risk assessment; personal and social relations within the community that deter reliance on fair use; and consequent delays, deformations, and failure to execute mission.

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

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