Fair Doctrine Research Articles

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מאמר זה בוחן את מקומו של יסוד ההגינות בחובת האמון בדין הישראלי לנוכח מגמה המזוהה במידה רבה עם בית המשפט הכלכלי - לקלוט, כביכול, מדיני החברות של דלאוור דרישה של מלאה ביישום חובת האמון של נושאי משרה ושל בעלי השליטה בחברה. ניתוח עיוני מצביע על העדיפות המוחלטת במידע שאמונאי (fiduciary) נהנה ממנה כלפי הנהנה וכלפי בית המשפט. עסקות בין אמונאי לבין נהנה, שעשויות להיות יעילות ולעתים הכרחיות, תלויות אפוא בהסכמה תקפה של הנהנה על בסיס גילוי מלא - לאמור, כלל של קנין ולא של אחריות. דיני האמונאות באנגליה ובארצות הברית אימצו גישה זו משכבר והם דבקים בה עד היום, למעט דיני החברות האמריקאיים. בדינים אלה גרמה תאונה משפטית להיווצרות הדוקטרינה של הגינות מלאה, אשר מעטים חולקים על נפסדותה. על רקע זה הדין הישראלי אכן דוחה כל אפשרות לבחון את הגינותה של פעולה של אמונאי כאשר מתעורר חשש שהיא נגועה בהפרת חובת אמון. הדרך היחידה להכשיר פעולה נגועה היא בהסכמה תקפה של הנהנה על בסיס גילוי מלא, ובחברה - באמצעות אורגנים נקיי-דעת המקיימים את חובת האמון שלהם. האווירה המשפטית, המקבלת באהדה את עיקריה המהותיים של דוקטרינת ההגינות המלאה הדלאוורית, מבטאת אפוא מגמה רגרסיבית לא-רצויה. This Article examines the role of the fairness element in the duty of loyalty in Israeli law in the light of a trend that is largely attributable to the Economic Department of the Tel Aviv District Court – to seemingly adopt from Delaware law a requirement of “entire fairness” in implementing the duty of loyalty of directors, officers, and controlling shareholders. A theoretical analysis points to the absolute informational superiority that fiduciaries enjoy vis-a-vis the beneficiary and the court. Transactions between fiduciary and beneficiary, that could be efficient and at times necessary, thus depend on the beneficiary’s valid, fully-informed consent – namely, a property rule rather than a liability rule. The fiduciary laws of England and the United States have adopted this approach long ago and adhere to it to this day, save for American corporate law. In the latter, a legal accident engendered the doctrine of entire fairness, which few dispute its undesirability. Against this backdrop, Israeli law indeed rejects any attempt to examine the fairness of fiduciary action that is suspect of being tainted by breach of loyalty. The only way to validate a tainted action is through the beneficiary’s valid, fully-informed consent. The “legal atmosphere” that favorably accepts the substantive elements of Delaware’s entire fairness doctrine thus represents a regressive, undesirable trend.

Domain Name and Copyright Issues on Internet: A Trans-Jurisdictional Perspective

Domain Name and Copyright Issues on Internet: A Trans-Jurisdictional Perspective

The Fair Use Doctrine in the Contemporary US Copyright Law

The subject of the research is the fair use doctrine in the US copyright law which is the basis for free use of works. Under the doctrine, third parties may freely use copyrighted works through fair use provided that it promotes “progress of science and useful arts” (Article 1 section 8 subsection 8 of the US Constitution).Special attention was given to the analysis of the content of the fair use doctrine beginning withits occurrence in the first cases related to US copyright law. The analysis was conducted on the basis ofcase law and some of the decisions of US courts in recent years. The following methods were used inthe research: legal analysis, legal simulation, legal forecast, comparative law methodology and historical analysis. The major research findings are as follows. The main features of the fair use doctrine inthe contemporary US copyright law have been identified, i.e. the doctrine is based on the four classicevaluation factors (enshrined in the US Copyright Act 1976); the judge may use any other assessmentfactors; alteration of the qualification of some classical assessment factors in comparison with earlierperiods of time; the occurrence of trends in the perception of fair use doctrine essence. The conclusionis made in respect of the unpredictability and spontaneity of the modern system of the US copyright law, based on the fair use doctrine. The conclusion is drawn in respect of insufficient conformity of thefair use doctrine with the requirements of the Berne Convention 1886 and to “three-step” test criteria.The main areas of controversy have been highlighted: the aim of legal regulation, the range of objects subject to regulation, permitted ways to use works.

Evaluating the Benefits of Fair Use: A Response to the PWC Report on the Costs and Benefits of 'Fair Use'

This submission to the Australia Productivity Commission responds to a recently published PricewaterhouseCoopers report on Understanding the Costs and Benefits of Introducing a ‘Fair Use’ Exception, prepared for APRA, AMCOS, PPCA, Copyright Agency | Viscopy, Foxtel, News Corp Australia and Screenrights (“PWC Report”). The PWC Report does not provide a sound evidence base to evaluate the true total costs and benefits that the introduction of a fair use rights would have in Australia. Part I points out how the PWC Report fails to adequately define the nature of the real change being proposed in Australia – which is effectively to subject its existing fair dealing clause to an open list of potentially lawful purposes. Part II provides a survey of a range of benefits that the opening of Australia’s fair dealing clause to resemble the U.S. fair use doctrine may have, drawing from published research on the topic which is not canvassed by the PWC Report. Part III analyses the PWC Report’s evaluation of the costs of adopting fair use, criticizing the Report’s basis for concluding that adopting fair use will lead to massive shifts from licensed to unlicensed use of works, a litigation explosion and the destruction of all collective management organizations in Australia. The diffuse and forward-looking benefits of open exceptions like fair use may be hard to measure, but they are no less real. The PWC’s evaluation of the costs and benefits of fair use are not real. It is full of imagined horror stories that are unlikely to take place in fact and should be disregarded in their entirety.

The Repeal of the Fairness Doctrine and the Irony of Talk Radio: A Story of Political Entrepreneurship, Risk, and Cover

The Repeal of the Fairness Doctrine and the Irony of Talk Radio: A Story of Political Entrepreneurship, Risk, and Cover

Digital scholarly editing within the boundaries of copyright restrictions

One of the great advantages the digital medium has to offer the field of scholarly editing is that it makes its products much easier to distribute. No longer bound to a shelf, the Digital Scholarly Edition has the potential to reach a much wider audience than a printed edition could. To a certain extent, however, the nature of the materials textual scholars are working with dictates the perimeters within which this dissemination can take place. When working with modern manuscripts, for instance, copyright restrictions may limit the extent to which a project can distribute its resources. In an academic climate where open access is not only becoming a standard, but in some cases even a requirement for receiving funding, such limitations may be perceived as problematic. In this article, we argue that even within the boundaries of copyright restrictions there can still be room to produce and distribute the results of textual scholarship. Therefore, the article zooms in on the way in which different Digital Scholarly Editions of copyrighted materials deal with this issue, using the Beckett Digital Manuscript Project (BDMP; www.beckettarchive.org) and Woolf Online (www.woolfonline.com) as case studies. To conclude, we investigate other strategies that may be used to share as much research data as we are allowed to, e.g. by sharing metadata and ancillary data, or by using the fair use doctrine to circumvent the problem. Case studies used for this aspect of the article include ModNets (www.modnets.org), the BDMP Encoding Manual (www.beckettarchive.org/encodingmanual), the Lexicon of Scholarly Editing (http://uahost.uantwerpen.be/lse), and the Finnegans Wake Extensible Elucidation Treasury (FWEET; www.fweet.org).

How Fair Use Can Help Solve the Orphan Works Problem

Many works that libraries, archives, and historical societies would like to digitize are “orphan works,” that is, works for which the copyright holder either is unknown or cannot be located after a diligent search. Due to copyright risk if an owner later shows up, nonprofit libraries and similar institutions have been reluctant to digitize and make these works available, greatly limiting access to important cultural and historical information. While a legislative fix may soon be proposed, this Article argues that legislation is not necessary to enable some uses of orphan works by nonprofit libraries and archives. Instead, U.S. copyright law’s fair use doctrine, which allows certain unpermissioned uses of copyrighted works, provides a partial solution. Though it is an incomplete solution, fair use has some significant advantages over other approaches through which libraries and archives could make publicly beneficial uses of orphan works. Under fair use, there is no need to develop a licensing system, significantly reducing administrative and transactional costs, and eliminating socially wasteful license fees for works that are not on the market, and for which an owner is unlikely to exist. Second, fair use has the flexibility to accommodate change over time as libraries and archives discover the best ways to search for owners, preserve works, and make them available. Finally, allowing fair use of orphans by libraries and archives helps fulfill copyright’s critical purposes of promoting the dissemination of knowledge and supporting speech and free expression. © 2012 Jennifer M. Urban. † Assistant Clinical Professor of Law, University of California, Berkeley School of Law. The author gratefully acknowledges the many thoughtful ideas and helpful comments of Ty Alper, Roxanna Altholz, Michelle Anderson, Michael Donaldson, James Grimmelmann, David Hansen, Edward Lee, Mark Lemley, Saira Mohammed, Pamela Samuelson, Jason Schultz, Christopher Sprigman, and Karen Tani, participants in the Orphan Works & Mass Digitization: Obstacles & Opportunities conference [hereinafter Berkeley Orphan Works Conference], and participants in the 12th Annual Intellectual Property Scholars Conference. This Article is output of the Berkeley Digital Library Copyright Project, generously supported by funding from the Alfred P. Sloan Foundation. More information about the Berkeley Digital Library Project can be found at http://www.law.berkeley.edu/12040.htm. I especially thank Ana Enriquez for excellent research assistance. The thoughts contained in this Article represent my individual academic conclusions and opinions, and should not be attributed to any client I represent or the Samuelson Law, Technology & Public Policy Clinic, which I direct. In addition, the University of California, where I am a faculty member, is a defendant in the Authors Guild, Inc. v. HathiTrust suit; however, I do not represent, and in no way speak for, the University of California or any other party in the case. 1379-1430_URBAN_031013_FINAL (DO NOT DELETE) 3/10/2013 10:36 PM 1380 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 27:1379

Legal Implications of Digital Heritagization

Due to the development of information and communication technologies as well as the influence of the Internet, life and work of the contemporary society take increasingly place in virtual form and the approach towards knowledge and heritage fundamentally altered. The remarkable sign of this continuous process is the emergence of Digital Heritage, understood as the accumulation of computer-based, valuable materials, which constitutes a digital reflection of societal developments. Different “heritage institutions” from the public sector, such as archives, libraries, museums, but also private undertakings became involved in the related process of Digital Heritagization encompassing cultural, scientific and administrative resources. The objective aimed for is the preservation of the named resources in order to enable future generations to access the collective memory of our society by means of electronic records. Since the digitization of analogue resources and the utilization of born-digital content presupposes inter alia the reproduction and duplication of the content in question, the field of intellectual property law gains particular interest. Thereby, the discussion on the national and international level is characterized by the heterogeneous and partly restrictive legal framework. The contribution takes this new environment as opportunity to approach the legal framework of civil law as well as common law jurisdictions related to digital heritage from a copyright law perspective, with particular reference to the legal exemptions and fair dealings doctrine. In order to emphasize the high practical impact of the issue at stake, recent judgments of the ECJ, the Swiss Federal Tribunal and the S.D.N.Y. (Google Books Case) assessing the admissibility of the digitalization and related aspects are considered and critically evaluated. On that basis, the future need of legislative measures in order to balance personal proprietary rights and public interests is discussed.

Gauging the Effect of U.S. Tobacco Control Policies From 1965 Through 2014 Using SimSmoke.

The year 2014 marked the 50th Anniversary of the first Surgeon General's Report. This paper estimates the effect of tobacco control policies in the U.S. after the 1964 Report using the SimSmoke tobacco control simulation model. SimSmoke uses National Health Interview Survey data from 1965 through 2012 on smoking prevalence, initiation, and cessation rates, and incorporates policies implemented since 1965. The model projects smoking prevalence and smoking-attributable deaths (SADs) from 1965 through 2065 and is validated against National Health Interview Survey data. Counterfactual scenarios with policies constant since 1965 and with individual policies are estimated. Analysis was conducted in February 2014. SimSmoke generally validated well during the time period from 1965 through 2012. As a result of all policies, smoking prevalence is estimated to have fallen by almost 55% by 2014, with a total of 2 million SADs averted from 1965 through 2014, increasing to 20.1 million SADs by 2065. The Fairness Doctrine is estimated to have reduced adult smoking prevalence by about 24% by 2014 and averted 10.4 million SADs by 2065, while price increases reduced smoking prevalence by 24% by 2014 and averted 7.3 million SADs by 2065. Smoke-free air laws, cessation treatment, and tobacco control spending individually reduced smoking rates by 3%-5.5% by 2014. By 2014, SimSmoke predicts a 53% reduction in smoking rates and almost 2 million SADs averted due to polices implemented since the 1964 Surgeon General's Report, with most of the health benefit still to occur in future years.

US Fair Use and EU Limitations and Exceptions: Which Model for the Cambodian Educational System?

Copyright and related rights law is designed to promote creative works and cultural development. Copyright law grants both economic rights and moral rights, which provide authors reward for their human endeavor and the recoup of financial investment of their venture. Copyright policy has an impact on socio-economic development, education and technology. Accordingly, each country has a primary concern with the issue of the compliance of their copyright law and policy with international treaties and best practices, with a view of becoming more appealing in the world competitive market, and also with how to ensure that their development objectives a fully met.One goal of copyright law is to allow for the use of copyrighted materials in higher education. In fact, at times, stakeholders face increased difficulty to access copyrighted works for educational purposes, because of the extension of copyright protection, which provides broader rights to the creative work of the author. These authors want to extend copyright protection and obtain broader rights to their creative works.Copyright law often includes limitations and exceptions in order to strike a balance between the interests of individual creators and the public at large, and to facilitate access and dissemination of copyrighted materials. Fair use doctrine is the most important limitation and exception in copyright law and it is supported by economic policy. It negates allegations of copyright infringement and it is flexible in its application based on the facts of the particular case.The Law on Copyright and Related Rights of Cambodia was enacted in 2003 and it includes several limitations and exceptions for the use of copyrighted materials for the purposes of study and research at educational institutions and public libraries.This paper provides a snapshot of the fair use doctrine in United States copyright law, as well as the limitations and exceptions in the European Union . It explores the case law relating to copyright and the fair use doctrine to provide context for the discussion. The goal of the paper is to also provide a critical analysis of the limitations and exceptions provision under the copyright law of Cambodia, and to discuss the policy alternatives available to amend the law, to better implement this important doctrine.

Social Media Definition and the Governance Challenge: An Introduction to the Special Issue

This introduction to a special issue of Telecommunications Policy entitled Governance of Social Media begins with a definition of social media that informs all contributions in the special issue. A section describing the challenges associated with the governance of social media is presented next, followed by an overview of the various articles included in the special issue.While the Internet and the World Wide Web have always been used to facilitate social interaction, the emergence and rapid diffusion of Web 2.0 functionalities during the first decade of the new millennium enabled an evolutionary leap forward in the social component of web use. This and falling costs for online data storage made it feasible for the first time to offer masses of Internet users access to an array of user-centric spaces they could populate with user-generated content, along with a correspondingly diverse set of opportunities for linking these spaces together to form virtual social networks.To define “social media” for our current purposes, we synthesize definitions presented in the literature and identify the following commonalities among current social media services:1) Social media services are (currently) Web 2.0 Internet-based applications,2) User-generated content is the lifeblood of social media,3) Individuals and groups create user-specific profiles for a site or app designed and maintained by a social media service,4) Social media services facilitate the development of social networks online by connecting a profile with those of other individuals and/or groups.Transformative communication technologies have always called for regulatory innovation. Theodor Vail’s vision of “one policy, one system, universal service” preceded more than one-hundred years of innovative regulations aimed at connecting all Americans to a single telephone network. The sinking of the Titanic, caused in part by “chaos in the spectrum” led to the Radio Act of 1912 and the creation of a command and control model designed to regulate broadcast radio. Safe-harbor hours were put in place after a father and son heard George Carlin’s “seven dirty words” routine over the radio in their car. The fairness doctrine and the minority tax certificate program were designed to address inequalities in the broadcast television industry. The Digital Millennium Copyright Act responded to intellectual property concerns raised by a global Internet and the FCC’s 700mhz auction was the result of demand for smarter mobile phones. Now we must consider the role of regulatory innovation in response to the emergence of social media.

Book Review: America’s Battle for Media Democracy: The Triumph of Corporate Libertarianism and the Future of Media Reform, by Victor Pickard

Victor Pickard America's Battle Media Democracy: Triumph of Corporate Libertarianism and the Future of Media Reform. New York, NY: Cambridge University Press, 2015. 247 pp.This book brings together insightful archival historical research about the development of newspapers and radio during a watershed period, particularly during the 1940s, that has far-reaching impact. Pickard, assistant professor at the University of Pennsylvania Annenberg School, guides readers using materials found in archives to shed light on what he refers to as a nascent media reform movement, which set the stage a cluster of progressive court actions and policy interventions (p. 3). 1940s decade begins with the Federal Communications Commission (FCC) chain broadcasting rules and concludes with the Fairness Doctrine public interest standard.Pickard traces regulation through organizational documents, newspaper and journal articles, and editorials to write this historical narrative. He states that his research aligns with Gramsci's theoretical ideology, and the research reveals a critical juncture in history in which activists, intellectuals, and others came into conflict with media industry owners, but corporate libertarianism among media owners was triumphant in influencing media regulatory policymaking (pp. 2, 8).The first four chapters focus on radio industry regulation. Chapters 5 and 6 mainly cover the Hutchins Commission and newspapers. Taken as a whole, America's Battle Media Democracy covers formative years of media policymaking; the book's contents are helpful in providing an historical context to understanding how normative ideas about media in democracy were forged.In The Revolt Against Radio and A Progressive Turn at the Pickard writes about the inception of the FCC, which had a close relationship with media industry owners-including the first four commissioners, all of whom had close prior ties to AT&T or with broadcasting industry corporations. When FCC Commissioner Lawrence (Larry) Fly was appointed in 1939, however, the agency began to take a decided turn (in response to public critics) against commercialism and in support of communities. Furthermore, when many newspaper owners began buying radio which gave rise to the conglomeration of media outlets, the FCC took notice. By the 1940s, the FCC issued an internal report that was published with a blue cover under the title Public Service Responsibility of Broadcast Licensees that came to be called simply the Blue Book (p. 63).America's Battle Media Democracy contains Pickard's meticulous research on the origin and development of the Blue Book that was used by radio broadcast regulators in the FCC a short time. federal government reserved ultimate control over all radio channels and granted licenses for use of such channels, but not the ownership thereof (p. 65). In 1940, licenses were reviewed renewal every 3 years and today are reviewed every 8 years.According to Pickard, Fairness Doctrine was basically a lightweight version of the FCC's 1941 Mayflower decision stemming from a license renewal case station WAAB. Fairness Doctrine gave media industry more control over their programming but mandated that they must devote a reasonable percentage of their broadcasting time to the discussion of public issues of interest in the served by their stations, and these programs [must] be designed so that the public has a reasonable opportunity to hear different opposing positions on the public issues of interest and importance in the community (p. …

Against Fair Use: The Case for a Genericness Defense in Artistic Works

The ever-expanding reach of trademark law and the narrowing strictures of trademark fair use doctrine demand new ways of thinking about defenses in artistic use cases. The present defenses of First Amendment free speech and fair use, as interpreted by courts, acknowledge just two types of expressive use as “fair”: those that target or comment upon the trademarked work itself, and/or those that somehow “transform” the original. Moreover, defending a claim of infringement — even if the use is ultimately found to be protected — is lengthy, fact-intensive, and, above all, expensive, creating a chilling effect on speech. This Article makes a plea for increasing the use of genericide or genericness defenses in expressive use cases. That is, a defendant would argue that the formerly-protectable mark has become generic in a specific market or industry as signifying not the source of the product but a category or genus of product — for example, that Cristal has become, in the rap industry, generic for champagne. Rather than focusing on arguments of transformativeness in the hopes of winning a fair use defense, artists should emphasize that they did NOT use the work as a means of targeting the work itself — that is, anti-transformativeness. Not only does this defense have the advantage of invalidating a trademark once and for all within a specific industry, thus freeing up the mark for all to use, but the mere threat of having one’s mark be found generic also serves as a deterrent to overzealous trademark owners, who may think twice before pursuing blatantly protected uses of their marks. Furthermore, the more we focus on a secondary use’s “transformativeness” or the original mark’s uniqueness, the less fair other types of artistic use which do not recognize a unique original nor the ability of art to transform — for example, satire, pastiche, and appropriation — become. Conversely, the more we focus on the genericity of a mark, the more likely the mark will in fact be deemed generic, as courts often look to expressive uses to determine if a mark has undergone genericide. But our present focus on fitting every expressive use into the fair use defense does art a disservice, by recognizing only one type of expressive use — parody — as “fair.”

Could a fair price rule (or its absence) be unjust?

This paper discusses the relationship between contract law, justice and democracy. In particular, it addresses the question whether the presence or absence of an unfair price rule could make a system of contract law, and thus the society to which it belongs, become unjust. The question is not merely a theoretical one, as recent legislative developments in EU contract law have illustrated. The main argument of the paper is that principles of justice that would be reasonably acceptable to all, as they should be in a society like our own which is characterised by a reasonable pluralism of worldviews, are unlikely either to prohibit or require an unfair-price rule, while the main existing substantive theories of justice that do clearly require such a rule (eg in the name of the virtue of corrective justice) or proscribe it (eg because of the value of liberty), are too partisan (‘too thick’) to be acceptable to citizens holding different reasonable worldviews. This means that a system of contract law can be just independent of whether or not it contains an unfair price rule. As a result, the question of whether our contract law should contain a fair price doctrine remains a matter for the legitimate democratic lawmaker to decide upon, in a debate where controversial worldviews are also admitted. The more procedural (‘thinner’) principles of justice will still require that the law can (and will at some point) be justified in non-sectarian terms, but given that such more neutral grounds are readily available on either side of the debate, both the presence and the absence of a fair price rule is compatible with a legitimate and just contract law regime.

The Future of Fair Use

Despite the warnings of copyright scholars at the turn of the twenty-first century, the future of the fair use doctrine is bright. This essay considers the recent trend of fair use cases and offers specific examples of changes in fair use jurisprudence regarding courts’ use and definitions of transformativeness that belie the earlier doomsday scenarios and suggest instead the promise of further expansion of fair use. These trends should give hope for the future to those who believe a robust fair use doctrine is necessary to keep the proper balance between copyright owners and the public interest.

Fair Use Goes Global

For 150 years, fair use was a solely American doctrine. But in the 1990s and 2000s, the Philippines, Israel, and South Korea all adopted American-style fair use. Since then, debates have erupted over whether or not to introduce fair use into the copyright laws of a half dozen additional countries, including the Netherlands, Canada, the United Kingdom, Japan, and Australia. Why is fair use going global? What do innovators, scholars, and legislators see in the fair use doctrine? And what is tipping the scale in favor of or against fair use? We don't yet know whether the global fair use movement will fizzle out or take over world intellectual property regimes. But looking at the debates over the global spread of fair use, even at this early stage, tells us a lot about digital media's challenge to the regulation of both technological innovation and online expression.

Bring Back the Noise: How Cariou v. Prince Will Revitalize Sampling

In 1988, John Carlin argued in an article in this Journal that fair use should be extended to cover works of appropriation art so as to protect appropriative artists from claims of copyright infringement.1 He wrote that “[a]n extension of fair use to cover artistic use through Appropriation would not compromise either the underlying logic of copyright law, or the intent of Congress in creating a legislative exception to copyright monopoly in the fair use doctrine.”2 In 1992, artist Jeff Koons unsuccessfully argued that one of his sculptures, which borrowed heavily from a photograph he purchased in a card shop, was fair use.3 But in 1994, the Supreme Court ruled that works of appropriation art do not inherently infringe on the original author’s copyright.4 Since then, courts have moved towards embracing Carlin’s view that copyright should encourage appropriation art by accepting such art as fair use, not condemn it by finding such art to be infringement. The most recent development came from the Second Circuit in Cariou v. Prince, where the court of appeals embraced perhaps the most expansive interpretation of fair use of any court yet.5 Up to this point, however, these cases have only involved visual art. This Note seeks to track the progress that courts have made towards accepting appropriation art as fair use and argues that the reasoning from recent cases dealing with visual art can also be applied to music. Specifically, this Note argues that the legal standards for appropriation art in the visual and musical contexts have diverged, and that this should be corrected. Sampling—an integral part of the hiphop genre—is the use of small portions of existing sound recordings to create new musical works. The practice has been the subject of several unfavorable court rulings since the 1990s, which, this Note argues, have imposed undue restrictions on the practice, particularly when compared with contemporaneous rulings in the

Reconstructing the Contours of the Copyright Originality and Idea- Expression Doctrines Regarding the Right to Deny Access to Works

ccess to innovative scientific, literary, and artistic content has never been more important to the public than now, in the digital age. Thanks to the digital revolution carried out through such means as super-computational power at super-affordable prices, the Internet, broadband penetration, and contemporary computer science and technology, the global, national, and local public finds itself at the convergence of unprecedented scientific and cultural knowledge and content development, along with unprecedented means to distribute, communicate, and access that knowledge. This Article joins the conversation on the Access-to-Knowledge, Access-to- Medicine, and Access-to-Art movements by asserting that the copyright restrictions affecting knowledge, innovation, and original thought implicate copyright’s originality and idea-expression doctrines first and fair use doctrine second. The parallel conversation in copyright law that focuses on the proper definition of the contours of copyright as described in the U.S. Supreme Court’s most recent constitutional law cases on copyright—Feist, Eldred, Golan, and Kirtsaeng—interprets the originality and idea-expression doctrines as being necessary for the proper balance between copyright protection and First Amendment freedom of expression. This Article seeks to join together the two conversations by focusing attention on the right to access published works under both copyright and First Amendment law. Access to works is part and parcel of the copyright contours debate. It is a “first principles” question to be answered before the question of manipulation, appropriation, or fair use is contemplated. The original intent of the Copyright Clause and its need to accommodate the First Amendment freedom of expression support the construction of the contours of copyright to include a right to access knowledge and information. Therefore, the originality and idea-expression doctrines should be reconstructed to recognize that the right to deny access to published works is extremely limited if not non-existent within the properly constructed contours of copyright.

Sherlock Holmes and the Case of the Lucrative Fandom: Recognizing the Economic Power of Fanworks and Reimagining Fair Use in Copyright

“Fan” culture in the guise of fan-created works like fanfiction, fanart, and fanvids is often connected in the popular imagination with the Internet. However, “fandom” has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom, long before the age of the Internet. Despite their persistence, fanworks have long existed in a nebulous gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. While paying lip service to a requirement of aesthetic neutrality, such analyses tend to become bogged down in unarticulated artistic judgments that hinge on a court’s personal interpretations of the work in question. One outcome of this emphasis on aesthetic value has been a de-emphasis of the market harm factor of fair use, whose examination has come to be subsumed by courts’ aesthetic judgments. This de-emphasis of the financial aspect of fair use has strong implications for the realm of fanworks. Fanworks have historically been considered to have little aesthetic value by the dominant culture, which can lead to a knee-jerk finding of infringement in an aesthetic-based fair use analysis. However, both old, venerable fandoms like Sherlock Holmes and new works funded by Kickstarters tell us that fanworks can actually enable further creativity by the copyright-holder and increase the value of the original work rather than detracting from it. Shifting the focus of fair use to a market-based approach would prioritize economic returns over artistic opinions. This can correct the imbalance worked by aesthetic value judgments of free works that cause no economic harm, recognizing that fandoms often operate as market facilitators, not market rivals. This Article examines the phenomenon of fandom and its effect on the original works that have inspired it through the medium of both “old” fandoms that pre-date the Internet age and “new” fandoms that have come of age in a digital world. This Article argues that active fandoms producing a large amount of fanworks tend to aid the goals of copyright. It further posits that fair use analyses should be re-focused on ensuring a meaningful examination of the effect on the market factor that avoids the taint of the courts’ aesthetic judgments. A renewed appreciation for the effect on the market factor would result in a more accurate application of the fair use doctrine that would acknowledge the role of fanworks and their participatory culture in supporting the economic incentive motivation of copyright.

Unresolved Textual Tension: <em>Capitol Records v. ReDigi</em> and a Digital First Sale Doctrine

In Capitol Records v. ReDigi, the District Court for the Southern District of New York ruled that the first sale doctrine does not apply when consumers resell copyrighted goods by digital distribution, even if they use software that ensures that the seller's copy is deleted during the transaction. This ruling hinged on the court's interpretation of the word in § 109 of the Copyright Act. The court reasoned that when copyrighted music is downloaded, the specific location on the disk to which it is downloaded is a phonorecord. According to the court, a digital copy is made anywhere else constitutes a reproduction for the purposes of copyright infringement. Because it is impossible for that physical piece of the disk to be transferred via digital transmission, and every digital transmission thus necessarily requires a reproduction, there can be no first sale protection for the distribution of digital goods. Because of the metaphysical differences between physical and digital media, this comment argues that the fair use doctrine cannot be applied in a media-neutral fashion. Digital goods cannot be moved from place to place in the same way that physical goods can be moved, even though the use of forward-and-delete technology (such as the kind ReDigi utilizes) can cause the functional result to be the same: one copy before the transmission, one copy after the transmission. The court's strict demand that the physical substrate where a copyrighted work is fixed must remain identical in order to be considered the same copy (and thus eligible for first sale protection) is at odds with earlier courts' rulings that repaired and restored works are eligible for first sale protection. The court's demand is also at odds with its own conclusion that iPods and other mobile devices containing music can be legally resold. These inconsistencies demonstrate that the phrase particular copy or phonorecord in 17 U.S.C. § 109 (which codifies the first sale doctrine) makes the statute unable to account for digital media and thus unable to apply in a media-neutral fashion. A specific carve-out for digital media is necessary for the law to keep up with the development of technology. Such a change is preferable because media-neutral application of the first sale doctrine permits a secondary market for digital goods to exist, which better serves both ends of copyright-the instrumental goal of rewarding authors and the ultimate goal of providing the public access to creative works-by promoting economic efficiency.