International Copyright Law Research Articles

The Interface of Copyright and Human Rights: Access to Copyright Works for the Visually Impaired

Reproduction of copyright protected material in formats that are accessible to the blind and visually impaired persons constitutes a copyright infringement unless there are specific limitations and exceptions in place. Most countries do not have copyright limitations and exceptions for the benefit of the visually impaired in their copyright laws. This has contributed to the issue of book famine, meaning the unsatisfactory access to copyright protected material for the blind and visually impaired. This thesis examines the claims of the visually impaired for improved access to copyright protected works in the context of the interface of human rights and intellectual property rights. This research demonstrates that insufficient access to copyright protected material is discriminatory against the visually impaired and negatively affects their human rights such as the right to education, information, health, employment, culture, and science. Moreover, the thesis analyses the international and domestic copyright law’s impact on the needs of the visually impaired. In analysing the international copyright law, the thesis evaluates the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities. Highlighting the insufficient consideration for the rights of the visually impaired in domestic and international copyright laws including the Marrakesh Treaty, the thesis proposes adoption of a human rights framework for copyright law to the extent that it affects the human rights of the visually impaired. Such framework requires copyright law to accommodate those human rights of the visually impaired that are dependent on access to copyright protected material. The thesis offers two categories of measures for creation of a human rights framework for copyright to the extent that it affects the human rights of the visually impaired. The measures include optimisation of already available options and adoption of new mechanisms. The first category discusses minimum mandatory copyright limitations and exceptions and the possibility to harmonise them. The second category covers extra measures such as clarifying the implications of different human rights and copyrights in the context of the book famine; ensuring compatibility of human rights and copyright when adopting policy and law; and, regular monitoring of the impact of copyright law on human rights.

‘Strange Rendering:’ Uncle Tom’s Cabin in Yiddish and the Staging of Race at the Turn of the Twentieth Century

‘Strange Rendering:’ Uncle Tom’s Cabin in Yiddish and the Staging of Race at the Turn of the Twentieth Century1 Rachel Rubinstein (bio) While the scholarly literature on Black-Jewish relations continues to expand, its archive has remained remarkably unchanged. Although recent explorations of representations of African Americans in American Yiddish literature and American Hebrew literature have newly revealed the ways in which immigrants in the early twentieth century engaged critically and creatively with race in the United States across languages, much work remains to be done.2 Curiously, while many scholars mention in passing the translations of Harriet Beecher Stowe’s Uncle Tom’s Cabin into Yiddish, very few have elaborated further on the consumption of this iconographic national text among Yiddish readers.3 There is even further silence on the subject of Uncle Tom’s Cabin on the Yiddish stage, first in Yiddish literary and theatrical criticism at the time and consequently in contemporary Yiddish studies scholarship, reflecting historical biases against performances deemed middlebrow or lowbrow and the subsequent gaps in modern scholarly accounts.4 As theater historian John Frick notes, Uncle Tom’s Cabin was not just a popular piece of abolitionist fiction; rather, it became a “cultural, commercial, ideological, and theatrical phenomenon,” arguably super-intending [End Page 35] representations of racial difference and racial justice for a full century to come.5 For this reason, seemingly narrow considerations of Uncle Tom’s Cabin can, in fact, open up broader histories of racialization, racial representations and interracial interactions in American culture. Yiddish performances of Uncle Tom’s Cabin at the turn of the twentieth century received increased attention from drama critics in English, because they coincided with a large-scale theatrical revival of the original 1853 melodrama in Anglophone American theaters, even as bowdlerized Uncle Tom’s Cabin shows were ubiquitous. Even African American newspapers took note of Uncle Tom’s Cabin in Yiddish, with the Freeman noting in 1902: “‘Uncle Tom’s Cabin’ in Yiddish again last Saturday at the People’s Theatre. Big hit.”6 And again, a few weeks later: “Uncle Tom’s Cabin was produced in Yiddish again Saturday 19, at the People’s Theatre. Sherman H. Dudley was in charge of the colored contingent.”7 In this essay, I begin the work of situating the Yiddish versions of Uncle Tom’s Cabin in the context first of the publication history of Stowe’s novel and the many plays that were adapted from it, and then in the context of the broader history of racial performances on the popular stage at the turn of the twentieth century. Taken together, the Yiddish translations and adaptations of Uncle Tom’s Cabin (particularly the discourse in English around Uncle Tom’s Cabin in Yiddish), and black performances of Jewish voices and bodies further illuminate Jewish engagements with American national mythmaking, the positioning of Jews and blacks, and the relationship of language to bodies, in the turn-of-the-century racial imagination. Literary Translations of Uncle Tom’s Cabin While Yiddish literary scholars often cite Yiddish translations of the novel Uncle Tom’s Cabin as evidence of Jews’ “special interest” in the fate of African Americans, the truth is that these translations were belated in comparison to the translation history of Stowe’s novel. In its first year of book publication, translations appeared in French, German, Spanish, Italian, Danish, Swedish, Flemish, Polish, and Magyar. These [End Page 36] translations weren’t meant only for an overseas readership; in the 1850s, both Stowe and her publishers understood that the novel would have to be translated for the roughly 15 percent of American readers who were foreign-born.8 Stowe herself commissioned the first German translation in 1852, understanding that for the novel to wield its full political power, even within the nation, she would have to rely on translation. By 1860, Uncle Tom’s Cabin had been translated into twenty languages and was the most widely circulated work of American literature.9 In fact, American literary scholar Colleen Boggs argues that Stowe’s efforts to control the rapidly proliferating translations and adaptations of her novel helped to form the basis for international copyright law.10 Eastern European...

Toward a Human Rights Method for Measuring International Copyright Law’s Compliance with International Human Rights Law

<p class="p1">States parties to international copyright instruments are required to give effect to their obligations under international copyright law and fulfil their international human rights obligations with respect to striking a balance between the human rights of the authors of intellectual works and human rights of the users of those same works. The High Commissioner of Human Rights has concluded that such balance ‘is one familiar to intellectual property law’. This conclusion assumes that international copyright law is already compliant with international human rights law. However, international copyright law instruments are not clear about how to reach an appropriate balance between these rights and, as a result, different stakeholders in the international copyright community seek and defend varied versions of balance which are not necessarily consistent. Concurrently, international human rights law bodies and scholars have examined the human rights of authors and users of intellectual works through a copyright law lens, missing a chance to articulate a clear human rights principle of balance. A proper human rights balance between authors’ and users’ human rights recognises the limited nature of both sets of human rights, rejects any hierarchy between them, and interprets them in conformity with the notion of the interdependence and indivisibility of human rights.

Are national courts the addressees of the InfoSoc three-step test?

Directive 2001/29/EC (the ‘InfoSoc Directive’) contains an exhaustive list of exceptions and limitations that Member States are free to implement into their own copyright laws (save that the exemption for temporary copies is mandatory). Article 5(5) incorporates the three-step test and mandates that exceptions and limitations shall only be applied in certain special cases that do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder. Unlike the three-step test in international copyright law, it is uncertain whether the three-step test in the InfoSoc Directive is addressed to national courts as well as the legislatures of the Member States.Recent case law of the Court of Justice of the European Union (‘CJEU’) has provided guidance in this respect. Although the Court has held that Article 5(5) of the InfoSoc Directive is not intended to affect the substantive content of the exceptions contained in Article 5(1), (2) and (3) thereof, and hence cannot extend their scope, and has held that, if acts fall clearly within one of those exceptions, then they satisfy Article 5(5), it has also held that those exceptions must be construed in the light of Article 5(5). More significantly, despite holding that Article 5(5) takes effect only at the time that the exceptions are applied by the Member States, the CJEU has also held that the acts of the defendant in question must satisfy the requirements of Article 5(5). As such, it appears from the CJEU’s jurisprudence that the three-step test in the InfoSoc Directive is addressed at national legislators and courts alike.The consequence of this is that, even in those Member States that have not transposed the language of the three-step test into their own legal systems, courts must determine not only whether the acts of the defendant in question are eligible for the application of a certain exception or limitation, but also whether they comply with the cumulative conditions set in the InfoSoc three-step test.

Are national courts the addressees of the InfoSoc three-step test?

Directive 2001/29/EC (the ‘InfoSoc Directive’) contains an exhaustive list of exceptions and limitations that Member States are free to implement into their own copyright laws (save that the exemption for temporary copies is mandatory). Article 5(5) incorporates the three-step test and mandates that exceptions and limitations shall only be applied in certain special cases that do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder. Unlike the three-step test in international copyright law, it is uncertain whether the three-step test in the InfoSoc Directive is addressed to national courts as well as the legislatures of the Member States.Recent case law of the Court of Justice of the European Union (‘CJEU’) has provided guidance in this respect. Although the Court has held that Article 5(5) of the InfoSoc Directive is not intended to affect the substantive content of the exceptions contained in Article 5(1), (2) and (3) thereof, and hence cannot extend their scope, and has held that, if acts fall clearly within one of those exceptions, then they satisfy Article 5(5), it has also held that those exceptions must be construed in the light of Article 5(5). More significantly, despite holding that Article 5(5) takes effect only at the time that the exceptions are applied by the Member States, the CJEU has also held that the acts of the defendant in question must satisfy the requirements of Article 5(5). As such, it appears from the CJEU’s jurisprudence that the three-step test in the InfoSoc Directive is addressed at national legislators and courts alike.The consequence of this is that, even in those Member States that have not transposed the language of the three-step test into their own legal systems, courts must determine not only whether the acts of the defendant in question are eligible for the application of a certain exception or limitation, but also whether they comply with the cumulative conditions set in the InfoSoc three-step test.

Gatsby: The Cultural History of the Great American Novel Beyond Gatsby: How Fitzgerald, Hemingway, and Writers of the 1920s Shaped American Culture So We Read On: How The Great Gatsby Came to Be and Why It Endures

Gatsby: <i>The Cultural History of the Great American Novel</i> <i>Beyond</i> Gatsby: <i>How Fitzgerald, Hemingway, and Writers of the 1920s Shaped American Culture</i> <i>So We Read On: How</i> The Great Gatsby <i>Came to Be and Why It Endures</i>

Gatsby:The Cultural History of the Great American NovelBeyondGatsby:How Fitzgerald, Hemingway, and Writers of the 1920s Shaped American CultureSo We Read On: HowThe Great GatsbyCame to Be and Why It Endures

Gatsby:<i>The Cultural History of the Great American Novel</i><i>Beyond</i>Gatsby:<i>How Fitzgerald, Hemingway, and Writers of the 1920s Shaped American Culture</i><i>So We Read On: How</i>The Great Gatsby<i>Came to Be and Why It Endures</i>

The Marrakesh Treaty For Visually Impaired Persons: Why A Treaty Was Preferable To Soft Law

This paper addresses the debates leading up to the recently adopted international treaty on copyright exceptions for the visually impaired, the Marrakesh International Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. This treaty was successfully adopted by the World Intellectual Property Organization (WIPO) in June 2013. Leading up to the negotiation of this instrument, multiple UN member states pushed for the instrument to be negotiated as soft law instead of a treaty. We argue that making this instrument soft law would have precluded its success. WIPO thus correctly chose to make this international instrument a treaty rather than a joint recommendation. This paper explains the international need for this instrument, to solve a global “book famine” and protect the access rights of visually impaired people. It then outlines the debate that occurred leading up to adoption over whether the instrument should be hard law or soft law. This debate illuminates that discussions of hard versus soft law need to be situated in context. We explore both related human rights law and other international copyright law to explain how they altered the hard law-soft law calculation in this case.The concluded treaty reflects WIPO’s recognition of related copyright law that had been established in other forums. By creating a binding instrument, WIPO has encouraged developing countries to implement the new treaty, towards the goal of assisting those visually impaired persons most in need of an international solution.

Disability, right to culture and copyright: which regulatory option?

Access to knowledge and participation in cultural life for persons with disabilities has always constituted a tough challenge. Recent studies show that only 5% of published works are available in accessible format, and the number plummets to 1% in developing countries. Coupled with the high costs of production and distribution, and the full reliance on public funds and intervention of public or non-profit organizations, copyright has traditionally represented an additional obstacle on the path for a broader availability of accessible works. Recently, the situation has worsened with the tilting in the balance between rights and exceptions caused by the legislative response to digital threats, when the unprecedented opportunities offered by new technologies to foster accessibility have been largely trumped by copyright law. Still, the last decades have witnessed the beginning of a paradigm shift, originating from the human rights arena, and moving towards a new definition of the interplay between authors’ rights and the right to take part in cultural life, both at a general level and with particular regards to persons with disabilities. This article offers a diachronic overview of the path that, from the rediscovery of Article 15 of the International Covenant on Economic, Social and Cultural Rights through its General Comments to Article 30 of the United Nations Convention on the Rights of Persons with Disabilities, has led to the adoption of the Marrakesh Treaty. It then analyses, with a focus on the European Union and its Member States, the national and regional responses to the new human rights obligations, looking at the relations between legislative exceptions and model or collective license agreements. The assessment of the strengths and weaknesses of the two main regulatory options lays the groundwork for proposals of further areas of intervention, necessary to fully comply with the international human rights obligations and to achieve the fullest access to and participation in culture possible for persons with disabilities, by using the tools offered by international and national copyright law.

Testing the HathiTrust Copyright Search Protocol in Germany: A Pilot Project on Procedures and Resources

There are more than 11 million volumes in the HathiTrust Digital Library. The largest group of non-English books � almost 600,000 titles � is in German. For most of these German works, the copyright status is unknown, which means that only the catalogue records can be made publicly available in the digital library, even if a work has passed into the public domain in Germany and could be made available as a full-text scan. To begin to address this problem, a small pilot project was undertaken by a group of students in the Berlin School of Library and Information Science at Humboldt University (the authors), to investigate potential resources for determination of author death dates for HathiTrust books published in Germany. The authors provide observations on the usefulness of certain resources identified with diligent in recent changes to German copyright law passed in response to a 2012 European Union directive on orphan works. They also discuss additional resources not mentioned in the law that might be useful in conducting such searches. Furthermore, they make recommendations for improvement of the HathiTrust Digital Library search protocol for works published outside the United States, particularly in languages other than English. The project findings will be of interest to policy makers, publishers, librarians and others engaged in efforts to identify digitized books that can be made publicly available in accordance with national and international copyright laws and regulations.

"Space Oddities": copyright law and conflict of laws in outer space

As recent events prove, the creation and use of works in outer space give rise to practical issues of copyright law. This article examines whether Earthly copyright law applies to matters that take place in outer space and, if so, which law. First, the principles of space law are compared with those of copyright law established for matters on Earth. Secondly we examine whether the principles of space law affect and limit the scope of copyright law. Next, we address if and how international copyright law determines a national copyright law which governs the creation of works as well as copyright infringements in outer space. We then show that matters in outer space may challenge the application of the lex loci protectionis as well as the principle of territoriality in copyright law. A man with a red T-shirt and a moustache sits at the window...

An analysis of copyright protection in Saudi Arabia

Purpose – This paper aims to explore the copyright laws of Saudi Arabia, illustrating the provisions governing the law. It seeks to outline Saudi Arabia copyright law within the framework of the international copyright protection, which include the Berne Convention and the TRIPS agreement. Design/methodology/approach – The paper is a thorough scrutinizing of the legal provisions of the Saudi Copyright Laws in regard to protected works, author's exclusive rights, lawful use of copyrighted works and the exceptions, mandatory licenses, duration of protection, provisions of infringements and penalties. The highlighted issue is concerning the exceptions in regard to public interest, particularly relating to education purposes. Findings – The paper finds that the Saudi Arabia Copyright Laws have met the requirement of the international copyright laws. The conditions for mandatory license and the 12 exceptions which permit lawful usage of copyrighted work under the copyright law without seeking the permission of the author are also in line with the international copyright laws, as public interest is the paramount consideration in exercising these exceptions. Originality/value – There is lack of study on copyright law in the Saudi Arabia per se. Therefore, this study on the Saudi Arabia copyright laws seeks to fill in this gap and to provoke further discussion on this issue. It should be useful to the academic community, particularly in the Saudi Arabia and the Gulf Cooperation Council countries.

Autorskie prawa osobiste w ustawodawstwach Francji i Republiki Federalnej Niemiec – analiza prawnoporównawcza

Konstrukcja dóbr osobistych twórców jest jednym z najbardziej kontrowersyjnych zagadnień prawa autorskiego, w odniesieniu do którego wprowadzenie jednolitych norm międzynarodowych jest utrudnione, przez wzgląd na tradycyjny podział na państwa tradycji copyright oraz kontynentalne regulacje autorskoprawne. Jakkolwiek, zauważalne jest dążenie do zbliżenia systemów prawnych, m.in. przez wprowadzenie do porządków krajów common law prerogatyw osobistych twórców. Należy jednak podkreślić, że mimo przyjęcia na gruncie ustaw państw kontynentalnych praw osobistych twórców, ich struktura i katalog środków ochrony są wielce zróżnicowane. W artykule została omówiona sytuacja prawnoosobista twórców w porządku prawnym Francji oraz Republiki Federalnej Niemiec. Zasadniczym celem artykułu jest analiza i porównanie konstrukcji i przedmiotu wybranych uprawnień autorskich zawartych w regulacjach krajowych wskazanych państw, jak również wykazanie istnienia wspólnych instytucji jurydycznych, dotyczących autorskich dóbr niematerialnych w poszczególnych reżimach z uwzględnieniem linii wypowiedzi orzecznictwa.

The Editorial Quest for International Copyright (1886–1896)

The establishment of international copyright in the late nineteenth century was not only a legal process. It was also an editorial quest to understand the concrete reality of copyright laws around the world. This essay traces two publishing projects that fundamentally shaped this quest. The first became the most important collection of copyright laws, Lyon-Caen and Delalain’s Lois françaises et étrangères sur la propriété littéraire et artistique . The simultaneous arrival of a specialised journal on copyright, Le Droit d’Auteur , facilitated the modulation and mapping of international copyright laws. The argument in this essay is that these editorial projects were not just representing international copyright, but actually constituting it. Their most immediate and paradoxical effect was that the search for sources of law was converted into the source of international copyright.

Legal protection of computer programs in international and comparative law

The spectacular development of the computer industry and the ever increasing role of the computer in the daily life of the nations, have created an astonishing atmosphere of rivalry and competition between different computer producers in the world. During the last decades of the twentieth century the computer technology evolved with an astronomical speed and brought with itself the information age, which in turn caused more competition in the hardware/software industry production. The hardware and software technology have been the principal medium of IT, while the interaction between these two technology, hardware/software, have raised many legal questions at national and international level. Hardware as a tangible res mobilia could be easily protected but software technology was expensive to develop and cheap to copy. This article analyses how the judiciary in different jurisdictions has tried to litigate the computer programs copyright claims. Whilst at the international level the international authorities have tried to unify different legal norms in the area of international copyright law and international legal protection of computer programs.

The Three-Step-Test Revisited: How to Use the Testts Flexibility in National Copyright Law

The first version of the three-step test emerged at the 1967 Stockholm Conference for the Revision of the Berne Convention. With the inclusion of versions of the test in the TRIPS Agreement of April 1994, the two WIPO “Internet” treaties of December 1996, the more recent Beijing Treaty on Audiovisual Performances of June 24, 2012, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty) of June 27, 2013, the test has taken on the central function of allowing and enabling tailor-made solutions at the national level.The three rather abstract criteria of the test offer room for different interpretations. Various alternative approaches have been developed in the legal literature and applied by national courts, including an understanding of the test’s factors as elements of a global balancing exercise; and a reverse reading of the test starting with the last, most flexible criterion. There are also parallels between factors in Anglo-American fair use and fair dealing legislation and the three step test.The study herein concludes that the three-step test in international copyright law does not preclude flexible national legislation allowing the courts to identify individual use privileges case-by-case and that the three-step test can serve as a source of inspiration for national law makers seeking to institute flexible exceptions and limitations at the domestic level.

Poe and the Remapping of Antebellum Print Culture

Poe and the Remapping of Antebellum Print Culture

How to Overcome the Normal Exploitation Obstacle: Opt-Out Formalities, Embargo Periods and the International Three-Step Test

The three-step test in international copyright law regulates the adoption of copyright limitations and exceptions at the national level. It permits the introduction of use privileges in certain special cases which do not conflict with a work’s normal exploitation and do not unreasonably prejudice legitimate interests of authors and right holders. Given the present need for new limitations and exceptions – for instance, in the area of search engine services, user-generated content, cloud computing and data mining – it is important to have clarity about the room available under the three-step test. An overly restrictive approach, such as the interpretation developed in the WTO panel decision on Section 110(5) of the US Copyright Act, can easily become an obstacle to ongoing innovation in the creation and dissemination of copyrighted works. It will deprive national lawmakers of the breathing space necessary to reconcile copyright protection with freedom of expression and freedom of competition. Against this background, the present article discusses the potential role of opt-out formalities and embargo periods in the enhancement of flexibility under the international three-step test. The traditional focus on the payment of equitable remuneration as a flexibility tool will be explained (section 1) before turning to the problem of remuneration not being taken into account in the normal exploitation analysis (section 2). Given this weakness of the traditional approach, opt-out formalities and embargo periods can serve as important alternative mechanisms to avoid conflicts with a normal exploitation (section 3). The combination of both mechanisms may even allow national policy makers to phase out exclusive rights and replace them with remuneration rights (concluding section 4).

The Divergent Paths of British and American Publishing

The Divergent Paths of British and American Publishing James L. W. West III (bio) Publishing is not ordinary trade. It is gambling. The publisher bets the cost of manufacturing, advertising and circulating a book, plus the overhead of his establishment, against every book he publishes exactly as a turf bookmaker bets against every horse in the race. The author, with his one book, is an owner backing his favorite at the best odds he can get from the competing publishers. Both are gamblers. —G. B. Shaw (1945) Commercialism in American book publishing has a long history. It can be traced back at least to the early nineteenth century, a time when American publishers—undercapitalized and struggling with an inefficient distribution system—subsisted on titles pirated from the British market. Because the United States had no international copyright law, American publishers were free to issue British books without paying royalties to authors or permissions fees to originating publishers. The Chace Act, passed by the U.S. Congress in 1891, established a version of international copyright in this country; but the bill contained a protectionist clause (insisted upon by the printers' unions) that required British books to be typeset, printed, and bound in the United States to qualify for copyright. This clause prevented British publishers from flooding the American market with overruns and remaindered stock. Even after passage of the Chace Act, British publishers remained wary of the U.S. trade. American houses, for their part, bent their energy toward developing their own authors, discovering new readers, and building a more efficient distribution system. This situation persisted through the 1890s and into the early 1900s. The British model of publishing, with low overhead, limited advertising, efficient distribution, and a deep backlist, was viewed by many people in the U.S. trade as a worthy ideal that might be aspired to by a small house but that [End Page 503] would not work for a large operation. The British approach depended too heavily on price control and did not generate a sufficiently rapid cash flow. The American trade took a different course: it became frontlist oriented, with high overhead, large advances, a strong emphasis on advertising, and a pronounced gambling mentality. The period between the First and Second World Wars was a good time for book publishing in the United States. The Great Depression of the 1930s did little damage to the industry; some firms, in fact, grew and prospered. "During the Depression we were sitting in clover," recalls Bennett Cerf in his memoir At Random (1977). "In fact, every year we went a little bit ahead, and there was never one when we went backward." There was a general movement of population into the cities in the 1920s and 1930s, creating concentrated and homogeneous book markets. By 1935 well over 50 percent of American people had settled in urban areas. Public education had increased, illiteracy had declined, and the demand for books of all kinds had grown. The aims of most U.S. houses during this period were to reach middle-class buyers, to expand the reading population, to publish inexpensive books, and to take advantage of developments in printing technology such as the rotary press and electrotype plating. Also important were newly invented methods of distribution. The Book-of-the-Month Club and the Literary Guild, both founded in 1926, used blanket magazine-advertising and home-mail distribution to reach buyers who lived far from bookshops. American publishers viewed book clubs initially with hostility (for their discounts) and sought to throttle them by legal action, but by the late 1930s it was obvious that demographic conditions in the U.S. were ideal for book clubs and that they would flourish no matter what the old-line publishers might do. During the 1920s and 1930s American reprint operations such as Grosset and Dunlap, A. L. Burt, Garden City Books, and the Modern Library leased the plates of popular books from trade houses and published inexpensive reissues in long print runs. These books were distributed through drugstores, tobacco shops, department stores, and other comparable outlets. Modern paperbacks made their appearance in 1939 when Robert de Graff founded Pocket Books with the financial backing...

Book Review: Reclaiming Fair Use: How to Put Balance Back in Copyright

Reclaiming Fair Use: How to Put Balance Back in Copyright. Patricia Aufderheide and Peter Jaszi. Chicago: University of Chicago Press, 2011. 232 pp. $17.00 pbk.When I was an elementary school student, I asked my mother what the little c in a circle meant that I had spotted in some printed material. Her response, It means you can't copy it. I enjoyed a few thrilling private moments of doodling the symbol on a piece of paper to see what would happen if I copied it, and though no omnipotent authorities came after me, I was careful never to behave so rebelliously outside my home.Unfortunately, a similarly naive interpretation and self-censorship pervades the grown-up perception of what that symbol signifies, too. A topic already fraught with fear and avoidance, copyright seems to filled with even more land mines in the current digital environment. Raise the subtopic of the notoriously grey area of the fair use doctrine (section 107 of U.S. copyright law) and responses range from a bewildered shrug to vehement head shaking to reactionary guideline and rule making.The fair use clause allows for limited use of copyrighted material in certain situations without permission. One fair-use championing trial judge describes it as breathing space within the confines of copyright. To the dismay of many, however, the only clear black or white answers to fair use questions beginning with Can I . . . ? are handed down, after the deed is done, by judges. Outside the courtroom, there are only stronger arguments and weaker arguments.In their engaging book, Patricia Aufderheide, an American University School of Communication professor and director of the Center for Social Media, and Peter Jaszi, professor of domestic and international copyright law at American University's Washington College of Law and director of the Glushko-Samuelson Intellectual Property Law Clinic, provide a comprehensive and useful tool in getting one's mind around fair use. In plain language and a well-structured narrative, they situate the issues in the larger context of the morass of copyright while providing user-friendly, as-concrete-as-can-be advice. Readers of this book will find that even in the absence of permanent ink answers, they can and should be empowered rather than frightened to exercise their rights.The authors cover the evolution of fair use punctuated with colorful historical precedents (though fair use case law is in inconveniently short supply) like the copyright protection of a circus poster in 1903 and the 1955 case Benny v. Loew's, wherein Jack Benny was sued for parodying a movie on his TV show. Fair use has gone in and out of the sunlight and shadows over time, and the changing tides often have obvious explanations. The growth of mass media industries from the 1960s to the 1990s shifted the culture in favor of the copyright holder (as opposed to the public and against fair use), with economics holding an exalted and primary place in decision making. The highly restrictive nature of the 1996 Digital Millennium Copyright Act was a galvanizing event that brought fair use back into the light of day after a less fair-use-friendly era. Since then, fair use has benefited from renewed exposure in a variety of venues and formats, and this book goes a long way toward providing the desperately needed education on the topic.The book's central proposition is that we citizens-whether educators or creators of content and culture-are allowed to do more than we think we are without abandoning the law altogether, and without necessarily seeking safe and alternative harbor in countercultural, copyleft communities like the Creative Commons. Both working outside the law in the Commons (though a well-intentioned endeavor) and caving in to artificially constructed guidelines, the authors argue, uphold the unrealistic Romantic-genius view of authorship, where the cultural production-as-property mind-set reigns. …