Fair Doctrine Research Articles

Fair Use Quotation Licenses: A Private Sector Solution To DMCA Takedown Abuse on YouTube

Part I of this Note covers the history of the fair use doctrine and its interplay with the DMCA, specifically within the context of video-hosting platforms likeYouTube, and examines how recent case law developments concerning the DMCA have fostered an environment that is ripe for abuse. Part II then argues that most content creators on YouTube have little to no recourse if their fair use creations are flagged as infringing content by right holders who request DMCA takedowns. Specifically, YouTube’s copyright policies and the excessive costs of litigation disincentivize users from fighting DMCA takedowns or pursuing legal actions to counteract bad faith behavior. As a consequence, the fair use defense is inaccessible to most YouTube content creators. Finally, Part III proposes the implementation of a quotation licensing scheme as one option to mitigate DMCA takedown abuse on YouTube. In recognizing the value of fair use for incentivizing creation, this scheme would contractually carve out a small exception to infringement, permitting limited appropriation of fellow users’ content on YouTube.

Fair Use As Cultural Appropriation

Over the last four decades, scholars from diverse disciplines have documented a wide variety of cultural appropriations from Indigenous peoples and the harms these have inflicted. Copyright law provides at least some protection against appropriations of Indigenous culture—particularly for copyrightable songs, dances, oral histories, and other forms of Indigenous cultural creativity. But it is admittedly an imperfect fit for combatting cultural appropriation, allowing some publicly beneficial uses of protected works without the consent of the copyright owner under certain exceptions, foremost being copyright’s fair use doctrine. This article evaluates fair use as a gatekeeping mechanism for unauthorized uses of copyrighted culture, one which empowers courts to sanction or disapprove of cultural appropriations to further copyright’s goal of promoting creative production. As codified in the 1976 Copyright Revision Act, the fair use doctrine’s four-part test is supposed to help fact finders determine the reasonableness of an unauthorized appropriation. But, while the fair use test has evolved to address questions about the purpose behind an appropriation, the amount and substance of the work used, and the effects of the appropriation on the market for the work, the vital inquiry about the “nature” of the original work and the impact of unauthorized appropriation on its creative environment has been all but forgotten by lower federal courts. Combining doctrinal analysis, settler-colonial theory, and ethnographic fieldwork involving ongoing appropriations of copyrightable Indigenous culture, this article shows how this “forgotten factor” in the fair use analysis is key to assessing the real impacts unauthorized appropriations have on culturally diverse forms of creativity. Thus, if we are committed to the development of creativity in all of its varieties and natures, a rehabilitation of the forgotten factor is both urgent and necessary.

Fair Use Doctrine in Photocopying Books for Educational Purposes: A Study of Copyright Acts in Indonesia and the United States

Globalization has offered a multitude of opportunities and challenges, mainly when it deals with copyright. The scope of copyright has been broad, encompassing various aspects of life, especially in literature and education. This study aims to analyze Indonesia's copyright issues, particularly regarding the reproduction of books deemed to have lesser protection for authors, dealing with the fair use doctrine. This doctrine considers that work is allowed to a limited extent for use by other parties without the creator or copyright holder's permission to keep it fair. This fair use doctrine permits limited and fair use of literary works for specific purposes without royalty payments and the author's consent. Given the author's more protection, this study then displays a comparative analysis of the U.S. framework on the Copyright Act portrayed into two main discussions. First, this study will discuss photocopying for educational purposes from the lens of Indonesia's Copyright Act. Second, this study considers the possible adjustment to adopt the so-called future concept of restrictions for educational purposes from the U.S. States Copyright Act 1976.
 KEYWORDS: Fair Use Doctrine, Copyright Act, Copyright for Educational Purposes.

Mashups and Fair Use: The Bold Misadventures of the Seussian Starship Enterprise

This amicus brief filed in the Ninth Circuit appeal of Dr. Seuss Enterprises v. ComicMix seeks to rectify and restore the balances underlying the Copyright Act of 1976 — particularly the interplay of the Section 106(2) right to prepare derivative works and the fair use doctrine. The District Court granted the defendants’ motion for summary judgment on the ground that OH THE PLACES YOU’LL BOLDLY GO! — the defendants’ illustrated book combining Dr. Seuss’s OH THE PLACES YOU’LL GO! and other Dr. Seuss books with Star Trek characters and themes — made fair use of the Dr. Seuss works. Based on the works at issue, uncontested facts, and the judge’s factual findings, the brief contends that defendants’ unauthorized derivative work plainly supported a grant of summary judgment for the plaintiff on the fair use defense. The District Court’s conclusory finding that the defendants’ work is “highly transformative,” disregard of the second and third fair use factors, analysis of the fourth factor, and allocation of the burden of proof misapply the standards for fair use analysis. The District Court’s decision destabilizes essential copyright law principles that have long supported markets for collaborations and derivative works. If this decision stands, competitors could flood publishing, television, film, and merchandising markets with unauthorized derivative works merely by “mashing” in other elements. Lucasfilm could produce OH THE PLACES YODA’LL GO! without obtaining a license from Dr. Seuss Enterprises. The developers of the Pokemon series could offer OH THE PLACES YOU’LL Pokemon GO!. Castle Rock Entertainment could introduce OH THE PLACES YOU’LL Yada Yada Yada!. Warner Bros. could freely mash together Bugs Bunny with Marvel Comic’s Iron Man or Sesame Street’s Kermit the Frog. Moreover, anyone could produce and distribute such works. That result contravenes what Congress intended in establishing an exclusive right to prepare derivative works subject to the fair use defense. While mashups can qualify for fair use in particular cases — for example, where they offer parodic or even satirical commentary and insights; or where a fan adapts his or her favorite characters or scenes for a school project — a categorical rule that commercial, non-parodic, non-satirical mashups automatically qualify as “highly transformative” for purposes of fair use analysis goes well beyond the Copyright Act’s regime for promoting expressive creativity. Promoting mashup art beyond the limits set by copyright law’s exclusive rights, limiting doctrines, and fair use analysis may well be a desirable policy reform for the digital age. Such a course, however, is for Congress and not the judiciary.

Protection of Intellectual Property Rights in the Field of Virtual and Augmented Reality

In the paper, the author notes that the development of modern technologies, including artificial intelligence, unmanned transport, robotics, portable and embedded digital devices, already has a great impact on the daily life of a person and can fundamentally change the existing social order in the near future.Virtual reality as a technology was born in the cross-section of research in the field of three-dimensional computer graphics and human-machine interaction. The spectrum of mixed reality includes the real world itself, the one that is before our eyes, the world of augmented reality — an improved reality that results from the introduction of sensory data into the field of perception in order to supplement information about the surrounding world and improve the perception of information; the world of virtual reality, which is created using technologies that provide full immersion in the environment. In some studies, augmented virtuality is also included in the spectrum, which implies the addition of virtual reality with elements of the real world (combining the virtual and real world).The paper substantiates the conclusion that in the near future both the legislator and judicial practice will have to find a balance between the interests of the creators of virtual worlds and virtual artists exclusive control over their virtual works, on the one hand, and society in using these virtual works and their development, on the other hand. It is necessary to allow users to participate, interact and create new forms of creative expression in the virtual environment.The author concludes that a broader interpretation of the fair use doctrine should be applied in this area, especially for those virtual worlds and virtual objects that imitate the real world and reality. However, it is necessary to distinguish between cases where the protection of such objects justifies licensing and those where it is advisable to encourage unrestricted use of the results for the further development of new technologies.

Political Fair Use

During election season, politicians and political campaigns often use pop culture or iconic works, such as viral memes or popular songs, to help convey their political messages — often without authorization from the copyright owners of these works. As politics and politicians become ever more divisive, these unauthorized political uses of copyrighted works can be particularly objectionable to copyright owners. In addition to offending their political or moral inclinations, artists and copyright owners frequently claim that these political uses infringe their copyrights. Politicians and campaigns argue that their right to use copyrighted works for political purposes is protected by the First Amendment, and that such political uses are presumptively fair use. This Article examines unauthorized political uses of copyrighted works under copyright law’s fair use doctrine to demonstrate that, in fact, both sides are correct. Through a series of case studies, this Article identifies a pattern in political fair use decisions: In disputes arising from the unauthorized political uses of copyrighted works, courts appear to implicitly modify their analyses and balancing of the fair use factors under Section 107 of the Copyright Act in order to both accommodate the import of political speech and to respect copyright owners’ dignity and rights to control use of their expressive works. Under the courts’ political fair use analysis, one determination — the nature of the original copyrighted work — seems to exert an outsized influence on the determination of all four fair use factors, permitting certain unauthorized political uses of copyrighted works to appear presumptively fair. This contradicts the Supreme Court’s guidance to courts on not subjecting copyright to independent First Amendment review nor to expand copyright’s fair use doctrine in infringement cases involving political or public figures. It also disregards certain copyright owners’ right to control use of their work, but permits other copyright owners the right to curtail infringing behavior that causes no market harm. This Article highlights these concerns and explores the normative implications of political fair use on litigation certainty and predictability, incentives to create political expressive works, and the balance between respecting creators’ dignity and rights to control use of their expressive works with guaranteeing free and open discussion of politicians and political candidates.

Unwritten Criticism: Audiovisual Forms of Critique as Fair Use

This Note argues that the traditional legal framework for analyzing a work of alleged criticism as fair use is particularly constraining for YouTube reaction videos and other creative audiovisual forms that largely criticize or comment on an original work in a non-verbal, imagistic, or visual manner. It discusses the emphasis that the current fair use jurisprudence places on verbal and written critical elements when undertaking a fair use analysis of a work of criticism, then advocates for a new conception of fair use criticism that incorporates film-specific analytical techniques when analyzing the critical elements of online audiovisual works. Part I discusses the statutory codification of the fair use doctrine in copyright law and how the doctrine has been shaped throughout the years by subsequent judicial interpretation. Part I also discusses the history of YouTube reaction videos as a unique audiovisual format. Part II explores the ways in which courts have recently applied the fair use doctrine to alleged works of audiovisual criticism and the emphasis courts place on verbal and written critical elements. Part III argues that courts assessing online audiovisual works as alleged works of criticism should incorporate analytical tools and interpretive theories commonly utilized in film studies contexts—including an analysis of editing, framing, composition, and camera movement—when parsing alleged works of audiovisual criticism for transformativeness under factor one. Finally, Part IV uses a recently decided fair use case out of the Southern District of New York as a real-life example to explore how a court might apply film-specific analytical tools to more accurately identify and assess the critical elements of a work of audiovisual criticism for fair use purposes.

Transformative Teaching and Educational Fair Use after Georgia State

The Supreme Court has said that copyright’s fair use doctrine is a “First Amendment safety valve” because it ensures that certain crucial cultural activities are not unduly burdened by copyright. While many such activities (criticism, commentary, parody) have benefited from the courts’ increased attention to first amendment values, one such activity, education, has been mired for years in a minimalist, market-based vision of fair use that is largely out of touch with mainstream fair use jurisprudence. The latest installment in the history of educational fair use, the 11th Circuit’s opinion in the Georgia State e-reserves case, may be the last judicial word on the subject for years to come, and I argue that its import is primarily in its rejection of outdated guidelines and case law, rather than any affirmative vision of fair use (which the court studiously avoids). Because of the unique factual context of the case, it stops short of bridging the gap between educational fair use and modern transformative use jurisprudence. With help from recent scholarship on broad patterns in fair use caselaw, I pick up where the GSU court left off, describing a variety of common educational uses that are categorizable as transformative, and therefore entitled to broad deference under contemporary fair use doctrine. In the process, I show a way forward for vindicating fair use rights, and first amendment rights, by applying the transformative use concept at lower levels of abstraction to help practice communities make sense of the doctrine.

Brief of Copyright Scholars as Amici Curiae in Support of the Petitioner

The fair use doctrine requires courts “to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 577 (1994). The Federal Circuit’s rejection of a jury finding of fair use instead embraced a rigid approach that, as a matter of law, would bar any copying of code into a new program, even for a different platform, as non-transformative and unfair. To justify its ruling, the Federal Circuit abandoned a consensus in the lower courts about the broad scope of fair use when dealing with highly functional software elements. It made key mistakes about the fair use factors and their balancing, including inflating the relevance of commerciality, applying an erroneous “no more than necessary” standard for copying, dismissing as insignificant the highly functional nature of computer programs, and conflating the market for Java SE as a whole with the market for individual declarations. Absent these legal errors, it is clear that the jury was at least reasonable in making factual findings that supported a finding of fair use. The extent to which a new work has a new meaning, message, or purpose—transformativeness—is often and rightly prioritized in the fair use analysis. But what constitutes transformativeness is often contentious. Here, the new purpose of Google’s new code implementing the declarations was the creation of a new computing environment in which Java programmers could readily create programs on multiple platforms, which required the use of limited portions of highly functional declarations. This type of purpose has been recognized as transformative because of its role in furthering competition and innovation. A computer interface supports the creation of other creative works, and in such situations, it is important to avoid locking in third parties to specific platforms. Factors two and three of the fair use test help define the boundaries of this type of fair use. In cases such as the one at bar, the highly functional nature of the copied declarations and the limited amount of the overall Java SE work used, consistent with industry practices, are vital considerations supporting the conclusion that Google’s use was a transformative use that served copyright’s basic goal of encouraging creation of new works. By discounting to the point of irrelevance the thinness of protection for highly functional aspects of computer interfaces (factor two) and of the industry practice of treating the amount Google reimplemented as reasonable (factor three), the Federal Circuit distorted its analysis of the other fair use factors, threatening the coherence of fair use doctrine and the ultimate progress of creativity. By downplaying the relevance of the nature of the work and the amount taken, the Federal Circuit fell into the well-known trap of circularity: reasoning that, because Oracle could have charged a license fee for this type of use if fair use were unavailable, Oracle suffered cognizable market harm. Because such claims can be made for any fair use, which by definition is not paid for, this reasoning cannot distinguish fair and unfair uses. But factors two and three can help identify when crediting such claimed market harm would be inconsistent with copyright’s overall balance between past and future creators. Thus, given the limited copying of functional elements here, factors one and four also support fair use, because Google’s purpose was generative of additional creativity by third parties and because Oracle’s claimed market harm goes beyond the legitimate scope of its thin copyright in highly functional declarations. A thin copyright for software, including Java SE, provides software copyright owners with meaningful protection against copying of significant amounts of expression, but meaningful protection does not require the expansive rights that the Federal Circuit granted. Providing a broad scope to highly functional elements of software is unnecessary and dangerous to competition and innovation. Factors two and three enable fair use to implement this distinction between types of works. The Federal Circuit erred in not recognizing this interaction between the fair use factors and instead adopting a rigid rule that would preclude fair use in computer programs.

Appropriation Art, Fair Use, and Metalinguistic Negotiation

Abstract Appropriation art (AA) involves the use of pre-existing works of art with little to no transformation. Works of AA (often) fail to satisfy established criteria for originality, such as creative labour and transformative use. As such, appropriation artists are often subject to copyright lawsuits and defend their work under the fair use doctrine of US copyright law. In legal cases regarding AA and fair use, judges lack a general principle whereby they can determine whether or not the offending party has ‘transformed’ the original work. Further, it is not the case that there is some antecedent fact that could determine the outcome one way or another. I diagnose debates surrounding the transformative nature of works of AA as cases of ‘metalinguistic negotiation’ over what concepts we should attach to terms like ‘copy’, ‘transformative’, and ‘work of art’.

Social Checks and Balances: A Private Fairness

This Essay proposes a private standards and certification system to induce media firms to provide more complete and accurate information. The Essay argues that this new private governance system is a viable response to the channelized flow of information that is exacerbating political polarization in the United States. Specifically, the Essay proposes development of a new private fairness doctrine to replace the standard repealed by the Federal Communications Commission in 1987. A broad-based, multi-stakeholder organization could develop and implement this private fairness doctrine, and the certification process could harness market and social pressure to influence the practices of traditional and new media firms. A growing literature demonstrates how private governance initiatives can perform the functions of government in the environmental, labor, gun control, animal welfare, fair trade, and other areas. The Essay argues that private governance initiatives such as the new private fairness doctrine also can bolster the social checks and balances that support the processes of democratic governance. Any intervention into the flow of information creates risks, but so does inaction, and the private fairness doctrine holds out the possibility of improving the information available for public discourse while limiting the risks of government intervention. In the long term, the concept of private governance also can stimulate creative thinking on interventions to improve other core democratic processes, including campaign finance, voting, ballot security, and others.

Thou Shalt Sample? New Drifts in the Ocean of Sampling

The status quo of the pre-2014 period with respect to musical sampling was that any taking of the whole or a portion of a sound recording (embodying musical compositions and musical performances) might run against the economic – and, in the Continental European droit d’auteur/Urheberrecht systems, the moral – rights of the respective rightholders (authors, performers and/or sound recording producers). The sampler might excuse himself from liability if the unauthorised use can fit into the frames of any limitation or exception, including the fair use doctrine under the laws of United States. Limitations and exceptions cannot provide any shelter for samplers with respect to moral rights. Both U.S. and German practice have continuously applied such potential excuses tightly. In one of the most important sampling decisions ever, the Sixth Circuit has noted in its bright line rule that the prior authorization is a prerequisite to any lawful sampling (“get a license or do not sample”). Similarly, the Sixth Circuit also refused to apply the exception of de minimis for sampling cases in this ruling. In the most important German ‘sampling’ ruling, the German Federal Supreme Court (hereinafter: BGH) similarly excluded the applicability of the concept of de minimis, when it found that the sound recording producers’ rights are infringed by the taking of even the smallest of sound samples. Further, it has been declared as a bright-line rule that the sampler cannot apply the concept of “free use” (“freie Benutzung”) of the German Copyright Act, in a case where he could have been able to record the taken segment individually. Such a limited approach may be dangerous. Sampling has become a fundamental element of modern music industry, especially for hip-hop and electronic musicians. If all samples would require prior authorization, it could chill musical self-expression – an important part of the modern “pop-culture”. Not to mention that a bright-line rule, like the one in Bridgeport, would lead to a de facto monopoly of copyrights, and/or of the rights of sound recording producers, which should not be the ultimate goal of any copyright regime. Naturally, the exact opposite of this argument, namely, that all samplings are to be treated lawfully, is similarly false, and neither will this paper take such a position. This article aims to introduce the post-2014 U.S. and German sampling rulings. According to the chronologic order, the paper starts with the American cases (Part I), followed by the German rulings (Part II). Part III provides for a critical analysis of the latest developments, and discusses the possible outcomes of the pending Pelham ruling of the Court of Justice of the European Union.

Brief of Amici Curiae Mozilla, Mapbox, Medium, Patreon, Etsy, and Wikimedia in Google v. Oracle (Cert. Petition 2019)

This Amicus Brief was filed in the United States Supreme Court in the case of Google v. Oracle in support of Google's 2019 petition for certiorari. Competition and innovation are two principles at the heart of a healthy internet and the field of software development that fuels it. For decades, software engineers have relied heavily on reuse and reimplementation of functional protocols, such as the Application Programming Interfaces (APIs) in this case, to create competing alternatives to incumbent industry players and new markets for development without fear of copyright infringement. In accord with the Supreme Court’s ruling in Baker v. Selden, 101 U.S. 99 (1879), and the plain language of 17 U.S.C. § 102(b) (2012), the software industry has flourished utilizing this approach to make internet and software ecosystems more accessible, affordable, diverse, and robust. By reversing this rule in the context of APIs, the Federal Circuit upended decades of industry practice and the well-established expectations of developers, investors, and consumers. API reimplementation is a common theme among developers of all sizes — from those wishing to create entirely new platforms to those wishing to develop on them. The court below heedlessly unraveled this reasonably predictive rule and set of reliable norms that are critical to software coders for understanding what is appropriate to carry over from one project to another and what is not. This is especially true for individual coders, small startups, or nonprofit software projects, who often lack legal counsel or large financial reserves to defend themselves against unwarranted litigation. In this brief, Amici urge the Court to grant Google’s petition for certiorari in order to correct this misreading of copyright law. Specifically, Amici wish to highlight two fundamental concerns with the lower court’s opinion. First, the court’s dramatic expansion of copyright protection to include APIs, which Amici believe are not copyrightable under U.S. law, stifles innovation and competition by privileging powerful incumbents and creating artificial barriers to entry for new players and innovators where none existed before. Second, the Federal Circuit’s rejection of the fair use doctrine stands to undermine not only reimplementation and reuse of APIs, but also other valuable software engineering practices, such as reverse engineering, interoperability, and the creation of competing platforms, as well as innovations in data analytics, search engines, and many other groundbreaking advancements. Specifically, by creating irreconcilable conflicts with bedrock software fair use principles that have set the norms of engineering practice for over two decades, the Federal Circuit has opened the door to re-litigating many status quo software engineering practices — practices that open source projects and small startups depend on every day to produce new platforms, programs, features, and interfaces. This brief was prepared with the help of NYU Law clinical students Iman Charania and Michael Pizzi under the supervision of Professor Jason Schultz.

The Georgia State Litigation: Literal Copying in Education

AbstractThis case note examines the long‐standing litigation against Georgia State University in relation to the posting, by faculty and library staff, of unauthorised copies of book extracts on the University's electronic reserves and virtual learning environment. The central question in this litigation has been whether these acts of copying fall within the fair use doctrine in US copyright law. In answering this, a key question for the US courts – and one relevant to other jurisdictions with free exceptions for education, such as the UK – has been whether existing and potential licensing activity is relevant to the question of whether an exception applies. This case note discusses how market effect has been analysed in Georgia State, including the recent rejection by the Court of Appeals for the Eleventh Circuit of a strongly empirical approach to market harm.

Tried and True: Fair Use Tales for the Telling

On Thursday, March 1, 2018, the Harvard Library Office for Scholarly Communication hosted “Tried and True: Fair Use Tales for the Telling,” a one-day program celebrating Harvard’s Fifth Anniversary of Fair Use Week. Leading fair use scholars and practitioners shared their stories and engaged in lively discussion about the powerful and flexible fair use provision of the Copyright Act and its applications. Topics included treatment of the fair use doctrine in recent jurisprudence, conflicts over the use of visual works in remixes and mash-ups, academic work and social commentary, filmmaking, controlled digital lending practices in libraries, software preservation, and more. This article discusses the examples and ideas presented during the program and offers resources for further study in the application of fair use.

Sampling Increases Music Sales: An Empirical Copyright Study

The Supreme Court instructs that the most important consideration in analyzing fair use is the effect on the market for the original. Employing music sales data, this article presents evidence of digital sampling's effect on the sales of sampled songs. Our results indicate that a reassessment of fair use in the area of music sampling is needed since sales of sampled songs increased after being repurposed within new songs. These results are robust and highly statistically significant. Findings of this nature favor a judicial determination that sampling constitutes a fair use, even when considering the influence that a new work has on extant licensing markets for sample clearance. This article argues that the current sample–licensing market is a product of aberrant antisampling case law arising from a lack of relevant empirical data and nonutilitarian judicial opinions. As set forth herein, the goal of encouraging creative activity without hindering copyright owners’ capacity to financially gain from their work is served by implementing a limited presumption of fair use for sampling. The findings are further applicable outside of the fair use analysis, as the study is important in the private law when viewed through a law and strategy lens. Forward thinking music firms should reframe their approach by encouraging sampling of their works to secure cost‐free advertising and achieve a competitive advantage.

Public Policies on Broadcast and the Fairness Doctrine: History, Effects, and Implications for the Future

Public Policies on Broadcast and the Fairness Doctrine: History, Effects, and Implications for the Future Jonathan Andrew Stewart Honig Abstract At its most root element, the media as an industry is founded on the principle of the exchange of information, whether it be a one-sided flow or a dialogue between sources. Public policy and its control over this information exchange is critical to the study of the views and opinions that shape our field of inquiry. To continue this line of reasoning would be to conjecture that how people view and interpret their world is the basis of how their everyday life interactions play out. To sum up this sort of abstract reasoning would be that the media wields an inordinate amount of influence on those it touches, connecting them to experiences far outside their realm of experience, while at the same time coloring their day to day interactions.Television itself is merely a different format in which to experience this informational exchange, one which continues to evolve. Originally known as “graphic radio,” the television was the culmination of effort between a great many inventors, and one that took on several different types of amalgamations. But over the years, television has evolved from the black-and-white models, to an ever growing variety of sizes and varieties. Full Text: PDF DOI: 10.15640/ppar.v7n1a1

IMPLIKASI DOKTRIN “FAIR USE” TERHADAP PENGEMBANGAN ILMU PENGETAHUAN OLEH AKADEMISI (DOSEN) ATAU PENELITI DALAM PERSPEKTIF HUKUM HAK CIPTA

In this article the author discusses the fair use (Art. 43-49 Law 28/2014 re. copyright) in relation scientific work performed by lecturers and researchers. This legal discourse in the field of copyright law will be performed using a juridical normative approach. One important finding is that the fair use doctrine allows lecturers and researchers to utilize copyright protected work from others – in the name of scientific progress or educational purposes – without having to obtain prior consent or license. Nonetheless, user of copyright protected works must pay attention to reasonable interest of copyright holder, the meaning of which is left to legal practice.

IMPLIKASI DOKTRIN “FAIR USE” TERHADAP PENGEMBANGAN ILMU PENGETAHUAN OLEH AKADEMISI (DOSEN) ATAU PENELITI DALAM PERSPEKTIF HUKUM HAK CIPTA

In this article the author discusses the fair use (Art. 43-49 Law 28/2014 re. copyright) in relation scientific work performed by lecturers and researchers. This legal discourse in the field of copyright law will be performed using a juridical normative approach. One important finding is that the fair use doctrine allows lecturers and researchers to utilize copyright protected work from others – in the name of scientific progress or educational purposes – without having to obtain prior consent or license. Nonetheless, user of copyright protected works must pay attention to reasonable interest of copyright holder, the meaning of which is left to legal practice.

Defining the Relevant Market in Fair Use Determinations

The fair use doctrine balances the public’s right to make infringing uses of copyrighted works against the owner’s wish to exclude such uses. The effect an infringing use has upon the potential market for the copyrighted work — otherwise referred to as the market harm factor — is one of the most important factors in making that determination. Yet just how can this hypothetical, potential harm be determined? This is the question that courts and commentators alike have struggled with for as long as fair use has been a defense — and a question that has become even more important as recent fair use doctrine begins to move towards market harm as the single most important factor in the fair use analysis. Conventional wisdom says that only the infringer may harm the market— that is, reduce, supplant, or even destroy the consuming public’s demand— for a plaintiff’s copyrighted works. This Article argues, instead, that a copyright holder’s own actions provide the best evidence of plausible market harm. In examples of what I term a copyright owner’s “negative” uses of her own work — using copyright to police non-copyright interests, engaging in holdup strategies, failing to update Copyright Office records, failing to mitigate damages, or using a copyright for litigation value rather than copyright value — there can be no market harm because the copyright holder has either made an efficient market transaction impossible or else actively chosen to forgo a copyright market for her work (opting instead for copyright-as-litigation-damages). By turning the lens away from the infringer’s conduct and towards the actions of the copyright holder, this Article hopes to open up a broader question about whether we can set fair use doctrine — and copyright policy more broadly— in a way that encourages better, more productive uses of copyrighted works not just by would-be infringers, but rather, by the copyright holder, herself.