Fair Use

The U.S. Digital Millennium Copyright Act (DMCA) criminalizes decryption of "copy protected" digital content, even if the decryption itself serves lawful purposes that do not infringe on copyright. However, temporary exemptions to this prohibition are granted triennially if communities of practice can demonstrate that the encryption ban adversely affects noninfringing uses. This study explores to what degree members of communities with existing exemptions for audiovisual work (1) are aware of the DMCA ban on encryption and (2) are aware of the relevant exemptions, and (3) whether they believe they can use the exemptions with confidence. We find that existing knowledge of DMCA exemptions is low, but that creators may employ the exemption reliably if given the exemption language. This empirical evidence demonstrates creative and productivity costs of narrow exemptions, as well as the importance of education. Results are relevant to discussions about international treaty intellectual property discussions, about the function of exemptions in intellectual property law, and about the consequences of criminalizing decryption.

In this Essay, I sketch out some First Amendment and Due Process issues that arise from recent efforts by the World Intellectual Property Organization (“WIPO”) to revise U.S. copyright law. My focus will be on the WIPO Treaty on Audiovisual Performances (the “AV Treaty” for short). The AV Treaty expands upon other efforts to make it unlawful to reproduce or use nonliteral material having substantial value to another author; display or perform fragmentary content having substantial value to a record company or movie studio; or make a movie or YouTube video by transforming, recasting, or adapting information having substantial value to a corporation. Under WIPO's leadership, U.S. copyright law is moving to transfer more of the social value associated with copyrighted work to the copyright owner, and away from subsequent authors and consumers.

The Essay describes WIPO and its role in expanding copyright-like rights via the AV Treaty and statutes such as the Digital Millennium Copyright Act (“DMCA”). It analyzes key provisions of the AV Treaty for whether they change U.S. law, or merely globalize its existing rules. Article 5 of it states that independently of any economic rights, and even after the transfer of them, a performer has a right as to his or her fixed, live performances, to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations. Article 6 seems to grant a broad new right to restrict the “communication” of unfixed performances not already broadcast, to which right some exceptions “may” be granted, but do not have to be granted. Article 12 contemplates additional royalties to be paid to performers; irrespective of existing contracts relating to performances embodied in movies, songs, television shows, or video games. Article 15 of the AV Treaty could provide legal reinforcement to efforts to utilize digital rights management and technological protection measures so as to restrict the fair use of performances. Article 16 of the AV Treaty requires parties to provide civil remedies against those who negligently facilitate the availability or distribution of a performance, knowing or having reason to know that the credits or terms of use have been omitted.

The Essay describes the threat posed to the First Amendment by the AV Treaty’s proposed changes to U.S. law. The AV Treaty alters the traditional contours of copyright in the United States by introducing moral rights, and outlawing the making available of performances even without distributing them. The Essay analyzes these First Amendment threats using the rubric provided by Eldred v. Ashcroft. It also outlines the Due Process concerns that arise from the AV Treaty’s vague language and arbitrary distinctions. The statutory damages that may be available under U.S. law if ordinary copyright remedies are extended to performance rights will threaten the Excessive Fines Clause of the Eighth Amendment, as well as Due Process. Moreover, the Essay points out that the Trans-Pacific Partnership Agreement may multiply all of the censorial provisions of the AV Treaty, by stating that criminal copyright infringement shall include instances of related rights infringements that have no direct or indirect motivation of financial gain. The AV Treaty may also interact with proposals such as the Stop Online Piracy Act, which would make it easier for corporations or executive agencies to seize web sites that do not themselves infringe copyrights, but that might facilitate acts of infringement.

World Intellectual Property Organization, WIPO, audiovisual, performances, treaty, WCT, WPPT, phonograms, fixation, unfixed, authorship, copyright, fair use, First Amendment, Due Process, YouTube, Facebook, Pinterest, Twitter, eBay, Amazon.com, Google, Yahoo!, Flava, SOPA, moral rights

Copyright literature has been long familiar with the lack of licensing choices in various creative markets. In the absence of lawful licensing alternatives, consumers of works as well as secondary creators wishing to use protected elements of preexisting works are often left with no choice but to either infringe on the copyright or refrain from the use. As the dearth of licensing impedes further creation, it greatly conflicts with the utilitarian foundation of copyright and its constitutional goal to promote creative progress.
Legal scholarship has submitted various recommendations in response to the licensing failure, but none of them has proved to be effective in alleviating copyright’s licensing shortage. This article contributes to the ongoing discourse by introducing the subtle incentive theory of copyright licensing.
The subtle incentive theory encourages rightholders to engage in licensing by considering the lack of licensing alternatives in the market for a particular work as a mitigating factor in the fair use analysis. Specifically, the subtle incentive theory propounds the mirror image of a test that was already mandated in American Geophysical Union v. Texaco in the mid-1990s, but which has since been used exclusively to deny fair use. By so doing, the subtle incentive theory mends a logical error in fair use reasoning and promotes a better creation market by making a zero-cost doctrinal change to ameliorate copyright licensing shortfalls. While the subtle incentive theory avoids aggressive interference in market dynamics and respects rightholders’ proprietorial choices, it does not leave the licensing failure to be repaired exclusively by the market, and adds an important policy statement as to the significance of original and secondary creation alike.

A medida que los derechos de autor se han profundizado (tanto en extensión como en la naturaleza de los derechos monopólicos entregados), e internacionalizado, el debate entorno a las excepciones a dichos derechos ha ido tomando cada vez más relevancia. ¿Qué es el "Fair Use"? El término Fair Use puede traducirse al castellano como "uso justo".

This succinct book articulates a clear framework for remixing and drawing at intermediate and advanced levels. It begins by walking through the ideas of copyright and fair use, providing context, examples, and advice. Mueller directs students through building a collection of sources and influences, leading to the development and analysis of style.

- Available at http://remixinganddrawing.com/

""Artículo que trata las excepciones a la Ley 17 de Copyright, Fair Use y Teach Act, calificadas como limitaciones a los derechos exclusivos del autor, desde la perpectiva de sus implicaciones en la educación a distacia en Estados Unidos y sus territorios.

Presenta, además, las excepciones que permiten, en ciertas condiciones, el uso de una obra para propósitos que contribuyen al bien común manteniendo un balance entre el derecho de autor y las necesidades de los estudiantes y los profesores.""

1. Introducción: la cultura gamer de compartir. Youtubers & streamers.
1.1. ¿Que es un Let´s Play? Live stream, Video on Demand (VOD). Categorías de videos según el contenido: reviews, speedruns, etc.
1.2. Tendencias del mercado de fabricantes de consolas: Mixer y PS Share.Nintendo.
2. Perspectiva de los titulares de derechos intelectuales
2.1. Desarrolladores, estudios, publishers
2.2. Derechos involucrados: derecho de reproducción, public performance.
Infracciones marcarias.
2.3. El elefante en el gameroom: ¿si es una infracción, por qué no se la persigue?
2.3.1. Beneficios publicitarios
2.3.2. Creación de comunidades
2.3.3. Backlash, PR y retaliation: el caso de Persona 5
3. Perspectiva desde el lado de los streamers
3.1. Categoria legal del stream: ¿Obra derivada?
3.2. Monetización de los streamings
3.3. Qué tipos de licencia se conceden para el uso? Panorama regulatorio de los Términos de Servicios (ToS).
3.4. First Sale y principio de exhaustion
3.5. Free speech y Youtubers. La tensión entre propiedad intelectual y libre expresión
3.5.1. El caso de Pew Die Pie
3.5.2. Cómo funcionan los strikes
3.5.3. DMCA y libre expresión
3.6. Fair Use y Youtubers
4. Perspectiva desde la óptica de las plataformas: Twitch y YouTube Gaming
5. Takeaways
5.1. Impacto futuro: regulación de los derechos de distribución sobre e-sports
5.2. Repensar nuestro ecosistema de derecho autoral para que albergue la innovación y recepte las prácticas de las industrias creativas.Negative spaces y regulación

TABLE OF CONTENTS

The commentaries and presentations that are published separately in a Kindle edition represent in size about 40% of the size of this volume of documents. These commentaries and presentations contain about 154,000 words with a 5,740-word synthetic introduction as compared to 443,000 words in this volume of documents. I would advise you to get to this Kindle volume launched on March 15, 2017. This Kindle volume contains a lot of complementary resources on various legal aspects or national systems necessary to assess the future of Copyright in the world.

(P;4 Preliminary Note
P.5 Table of Contents
P.9 Charter of Liberties of Henry I, 1100
P.11 Magna Carta, The Great Charter of English liberty granted (under considerable duress) by King John at Runnymede on June 15, 1215
P.17 Medieval Torture and Punishment
P.29 The 10 Most Gruesome Torture Techniques From Medieval Europe
P.36 THE CHARTER OF KURUKAN FUGA (1235-1236) (By SIRIMAN KOUYATE)
P.39 William Wallace (1272 – 23 August 1305)
P.39 Blind Harry’s Wallace, by William Hamilton of Gilbertfield, introduction by Elspeth King and Illustrations by Owain Kirby, reviewed by Sharma Krauskopf and rated
P.42 UTOPIA, Sir Thomas MORE
P.79 Stationers Company Charter Granted by Philip and Mary and confirmed by Elizabeth I. [1557]
P.82 John STUBBS, The Discovery of a Gaping Gulf Whereinto England is like to be Swallowed by Another French Marriage, if the Lord Forbid Not the Banes, by Letting Her Majesty See the Sin and Punishment Thereof.
P.84 WILLIAM SHAKESPEARE, Titus Andronicus
P.137 The King's Majesty's Declaration to His Subjects Concerning Lawful Sports to Be Used (1633)
P.141 The Petition of Right 1628
P.143 A DECREE OF STAR CHAMBER CONCERNING PRINTING. MADE JULY 11, 1637.
P.153 The Root and Branch Petition (1640)
P.157 June, 1643, An Ordinance for the Regulating of Printing.
P.159 AREOPAGITICA, A SPEECH OF Mr. JOHN MILTON 1644 For the  Liberty of UNLICENC'D PRINTING, To the PARLAMENT of ENGLAND.
P.177 LEVIATHAN (Excerpts) By Thomas Hobbes 1651
P.201 The Declaration of Breda, (1660)
P.202 Charles II, 1662, An Act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Bookes and Pamphlets and for regulating of Printing and Printing Presses.
P.201 Habeas Corpus Act (1679)
P.214 BILL OF RIGHTS (1689)
P.218 The Statute of Anne (1710)
P.221 Witchcraft Act of 1736
P.223 MARRIAGE AND LIFE EXPECTANCY,HARDWICKE’S MARRIAGE ACT 1753
P.227 The Case of JAMES SOMMERSETT, a Negro, on a Habeas Corpus, King's Bench: 12 GEORGE III. A.D. 1771-72.
P.230 Donaldson v. Beckett, Proceedings in the Lords on the Question of Literary Property, February 4 through February 22, 1774
P.251 UNITED STATES DECLARATION OF INDEPENDENCE IN CONGRESS, JULY 4, 1776
P.253 UNITED STATES CONSTITUTION (September 17, 1787)
P.258 UNITED STATES CONSTITUTION, AMENDMENTS 1-10 (December 15, 1791) « Bill of Rights »
P.259 UNITED STATES CONSTITUTION, AMENDMENTS 11-27 (February 7, 1795- May 7, 1992)
P.264 COPYRIGHT IN THE USA, A TIMELINE, SUMMARY AND COMMENT. From 1787 to 2006
P.266 1st Copyright Law of the USA, enacted during the 2nd session of the 1st Congress, May 31, 1790, signed by President George Washington
P.268 THE SCARLET LETTER, 1850, by Nathaniel Hawthorne
P.345 EREWHON, OR OVER THE RANGE, Samuel Butler, 1872
P.422 Copyright Law, By Mark F. Radcliffe and Diane Brinson of DLA Piper Rudnick Gray Cary
P.425 U.S. Code: Title 17 – COPYRIGHTS
P.429 WIPO Copyright Treaty (adopted in Geneva on December 20, 1996)
WIPO Performances and Phonograms Treaty (WPPT) (adopted in Geneva on December 20, 1996)
P.445 Sonny Bono Copyright Term Extension Act. S.505 One Hundred Fifth Congress of the United States of America AT THE SECOND SESSION
P.450 The Campaign Against the Mickey Mouse Act, A sample of reactions
P.459 UNITED STATES SUPREME COURT, ERIC ELDRED ET AL v. JOHN D. ASHCROFT, ATTORNEY GENERAL – CASE N° 01-618
P.504 Copyright Royalty and Distribution Reform Act (2004)
P.524 The Sonny Bono Copyright Term Extension Act – Various Critical Resources
• First Document, Copyright case threatens Disney, David Teather in New York, The Guardian, Wednesday 20 February 2002 02.24 GMT
• Second Document, 10th anniversary of the Sonny Bono Copyright Term Extension Act: Can the good guys overturn it? (October 29th, 2008)
• Third Document, Opposing Copyright Extension, A Forum for Information on Congress's Recent Extension of the Term of Copyright Protection and for Promoting the Public Domain
• Fourth Document, freeculture.org, STUDENTS FOR FREE CULTURE – MANIFESTO
• Fifth Document, Cereal Solidarity brought to you by freeculture.org
• Sixth Document, Lawrence Lessig's Supreme Showdown, STEVEN LEVY, MAGAZINE, DATE OF PUBLICATION: 10.01.02
• Seventh Document, Art History Club, Sonny Bono Copyright Term Extension Act
• Eighth Document, CEPR, Center for Economic and Policy Research, “The Artistic Freedom Voucher: An Internet Age Alternative to Copyrights,” Dean Baker, November 5, 2003
P.541 FAIR USE, Documentary Filmmakers’ Statement of Best Practices in Fair Use (November 2005)
• FIRST APPROACH, WILLIAM F. PATRY – PATRY ON FAIR USE – 2014 EDITION
• SECOND APPROACH, PATRICIA AUFDERHEIDE & PETER JASZI – RECLAIMING FAIR USE – 2011
• THIRD APPROACH, DOCUMENTARY FILMMAKERS

تتناول الدراسة مفهوم الإستخدام العادل Fair use باعتباره واحدا من الموضوعات التى تتمخض عن موضوعات قوانين حقوق التأليف والنشر، وقد عملت الدراسة على التعرف إلى موقف بعض المكتبات السعودية تجاه تطبيق مبادئ الإستخدام العادل وتحقيق الموازنة بين إتاحة مصادر المعلومات وحقوق التأليف والنشر من خلال تطبيق اللوائح والأنظمة بكل منها. وتوصلت الدراسة إلى عدد من النتائج لعل أبرزها أن الإستخدام العادل بمبادئه يلقى العديد من الصعوبات فى التطبيق، وتتشابه المكتبات فى القيود المفروضة على استخدام المصادر الإلكترونية مستخدمة مجموعة من الأنظمة.  ويعانى المستفيد من عدم إعلان هذه الأنظمة كما يعانى من عدم الوعى بمفهوم الإستخدام العادل وحقوق الملكية والموضوعات ذات الصلة. وأوصت الدراسة بالاهتمام بحق المستفيد فى استخدام المعلومات نقلا ونسخا وتحويلا وأوصت بضرورة اهتمام النصوص التشريعية العربية بهذ  الحق على غرار اهتمامه بحق المؤلف لاسيما فى البيئة الرقمية، كما أوصت بالاهتمام بطرح مقررات دراسية تتناول الإستخدام العادل فى البيئة الرقمية من خلال أقسام المكتبات والمعلومات بالجامعات السعودية

Por regla general, los derechos no son absolutos, razón por la cual se ven disminuidos con el fin de garantizar otros de orden general. Para el caso del Derecho de Autor Y Derechos Conexos, esta situación no le es indiferente, toda vez que, las normativas determinan circunstancias por las cuales los derechos patrimoniales deben ceder en procura de otros de interes común, tales como: la educación, la información, asuntos judiciales, uso privado, entre otras. Así entonces, los privilegios y prerrogativas que derivan de la titularidad del derecho de autor, no constituyen de ninguna forma, una excepción a la regla general.

Recently the Japanese government revised its copyright law, and one of the major changes in it is that illegal downloaders in Japan now face up to two years’ imprisonment or a fine of ¥2 million (approximately US$19,265), or a combination of the two for downloading certain kinds of copyrighted content. These momentous changes have triggered backlashes around the country from below, as might be expected. Interestingly, the industrial practices of Japanese content industries have developed certain domestic and foreign copyright-related strategies that tolerate some alleged copyright-infringing fan activities.

This paper argues that, although some of these strategies are incompatible with the current copyright law regime, and specifically the aforementioned revision to Japan’s copyright law, they have unconsciously created unexpected positive outcomes. This paper uses an integrative approach that combines market analysis and comparative law methods — to examine these copyright strategies, and proposes an alternative solution to deal with the copyright problems raised by fan-based activities.

In this paper, a structure (nature under the law) of the Permissible Use, and specific regulations situated in the Chapter III Division 3 of Polish Act on Copyright and Neighbouring Rights were elaborated. Leading positions of the doctrine, formulated at the turn of the 20th and 21th centuries, including works published after the 2015 amendment entry into force, were taken into account.

Celem pracy było omówienie konstrukcji dozwolonego użytku (jego charakteru prawnego) oraz poszczególnych przepisów należących do rozdziału III oddziału 3 ustawy o prawie autorskim i prawach pokrewnych. Uwzględniono wiodące stanowiska doktryny sformułowane na przełomie XX i XXI wieku, w tym prace opublikowane po wejściu w życie nowelizacji z 2015 r.

The developments of science and technology in Tanzania have made copyright protection and exceptions to become of vital importance compared with the ancient period where these changes were not noticeable. A lot of copyrighted information is accessed online through downloading; uploading and many other electronic means without any justifiable limitations; at the same time the owners of the copyrighted materials are trying to total prevent this accessibility of copyrighted materials which at the end affects the balancing between the owner’s rights and user’s rights. It is from this paper distinguish between private rights and public rights on copyrighted material, and how such rights are affected by the development of science and technology are discussed.

Se presentan las diferentes instancias de la propiedad intelectual, con especial énfasis en los derechos de autor y las implicaciones, recomendaciones para la aplicabilidad del uso justo y la protección de los derechos de autor en el ámbito educativo.

This paper argues that Smosh's parody 2005 Pokemon theme song was indeed fair use. This case brings into question the nature and potential purposes of a YouTube video, as well as the legality of elements (such as music) that comprise such videos.  Ultimately my analysis points to the need for fair use to be redefined for this Internet era, adapting to user-generated and user-based online consumption and unprecedented forms of creative media.

noun | cryp.tom.ne.sia | \, krip-,täm-‘nē-zhə\
The presence of phenomena in normal consciousness, which objectively are memories,
but subjectively are not recognized as such.

In an attempt to strike a greater sense of harmony between copyright law and the freedom of expression – and to protect the status quo of the creative process from undue restriction and distortion – this paper proposes that the postmodern philosophy ought be applied to the analysis of non-verbatim artistic appropriation; through United States and European law. The application of the postmodern philosophy will, heretofore, be referred to as “the postmodern approach.” The postmodern approach, as it were, undertakes the “influence view” of creativity – advanced by Wendy Gordon – that “subconscious copying occurs constantly and usually bears valuable fruit.” That is to say, this paper argues that most, if not all, art is in part derivative – as a result of either deliberate appropriation or subconscious appropriation (i.e., cryptomnesia). To that end, the argument propounded is that the status quo of the creative process entails appropriation; and ought to be protected from undue restriction or distortion by doctrines such as the subconscious copying rule – where strict liability is imposed on alleged copyright infringers. This paper will, therefore, use the term “appropriation” in a neutral form to describe the act of taking – but with no intimation as to whether the act of taking is improper, or otherwise unlawful. Further, in light of the influence view of creativity, the postmodern approach posits that whether or not appropriation has occurred is irrelevant – once a sufficient transformation has been made upon that appropriation. In other words, the approach views the evolution of art as a series of building blocks that comprises art works that may occasionally appear to overlap upon one another. Further, this approach encourages the building upon the existing corpus of artwork and disregards such occasions of overlap.

With regard for copyright’s economic foundations, this paper argues that the most important consideration, in determining whether the secondary work is sufficiently transformative, ought to be based on the fourth factor of the United States fair use doctrine: whether the use of the original work in the second work has effected the potential market for or value of the original work. The Supreme Court, in Acuff-Rose, held that unless the second work is a complete verbatim duplication of the original and, therefore, likely to usurp the demand for the original work; the second work, a work of non-verbatim appropriation, may go as far as to suppress the demand for the original and remain lawful. To that end, this paper does not endorse verbatim piracy, illegal-downloading or wholesale illegal distribution of copyrighted works, a practice which, invariably, would not pass the fair use doctrine. However, this paper underlines the dictum, in Feist, that holds that the primary objective of copyright is not to reward the labor of authors but to “promote the Progress of Science and useful Arts.” Therefore, it is argued that rigid, property-based copyright discourse is more likely it is to disincentivize innovative activities and chill speech, rather than incentivize it. To that end, the application of the labor-desert theory (i.e., property-based rhetoric), to intangibles, is demonstrated in the following paper as manifestly incorrect and, in fact, extremely problematic.
Furthermore, with regard for copyright’s creative foundations, this paper argues that for the second work to be considered structurally transformative it must satisfy a different purpose or character. In line with Arthur C. Danto’s claim that there is a palpable difference between imitation and impersonation, this paper will put forward that when considering a non-verbatim second work, as a whole, where there is a sufficient degree of original contribution in addition to the appropriated portion: that second work out to fall within the meaning of the “comment” exception in the fair use doctrine and the “pastiche” exception in the Information Society Directive, in Europe. For the purpose of comparative support, examples of parody will be used to demonstrate the viability of this proposition and flexibility of the definitions of parody and pastiche exceptions,9 through both United States and European case law. Furthermore, this paper argues that the necessary degree of originality to be contributed, by way of transformative comment, ought to be directly proportional to the originality threshold in the relevant jurisdiction to secure copyright protection; in the United States and Europe, the threshold is relatively low. This paper also underlines the importance in considering the fact that, as Pamela Samuelson pointed out, many aesthetic works comprise un-protectable elements weaved together in a creative manner. Indeed, while compositions such as this are duly protected under Feist precedent, the more manifestly un-protectable the elements are that comprise the work – the more “thin” the copyright protection is said to be. Further, this actuality is something that the postmodern approach accounts for and it echoes the sentiments of Samuelson when it posits that the substantial similarity test in the United States has failed to adequately address this matter. This matter will be demonstrated with a particular interest in the Arnstein and Krofft variations of the substantial similarity test. Not merely does this paper posit that the question of discerning similarities, in law, between two works – is manifestly defective but it also argues that un-protectable elements are too often, misunderstood, misconstrued and awarded copyright protection, to the detriment of secondary artists.

Jonathan Griffiths wisely noted that exceptions in copyright law provide insufficient protection for the freedom to create and that it is not enough that copyright legal structure “may” secure its compatibility with the freedom of expression. Therefore, the postmodern approach aims to provide a semblance of a legal structure that invariably will secure copyright and freedom of expression compatibility. Furthermore, the approach secures its final and most valuable prospect of support in Europe’s emerging case law regarding copyright and the freedom of expression, where both copyright and the freedom of expression are afforded fundamental rights status and decisions are made on the basis of the proportionality doctrine and with regard for the public interest. To that end, this papers argues that the progressive postmodern approach finds both historical and contemporary support in United States and European case law for the building of a more harmonious relationship between copyright law and the freedom of expression and a means to protect the status quo of the creative process as it exists for present and – as Gordon encouraged – future artists. The postmodern approach is, in itself, an expression of protection for those cannot speak for themselves.

This article aims to discuss the role humour plays in politics, particularly in a media environment overflowing with user-generated video. We start with a genealogy of political satire, from classical to Internet times, followed by a general description of “the Hitler meme,” a series of videos on YouTube featuring footage from the film Der Untergang and nonsensical subtitles. Amid video-games, celebrities, and the Internet itself, politicians and politics are the target of twenty-first century caricatures. By analysing these videos we hope to elucidate how the manipulation of images is  embedded in everyday practices and may be of political consequence, namely by deflating politicians' constructed media image. The realm of image, at the centre of the Internet's technological culture, is connected with decisive aspects of today's social structure of knowledge and play. It is timely to understand which part of “playing” is in fact an expressive practice with political significance.

Shifts towards the commodification of intangible goods – apart from historical means of economic management based on industrial strategies and the creation and sale of physical goods – have made intellectual property rights critical to capitalist accumulation in an increasingly globalized informational economy. In mainstream policy discourses, intellectual policy rights are advanced as a means to provide incentives for creativity and innovation, and to secure economic rewards for investment in research and development while providing a socially optimal level of creative and technological goods. The broader cultural, political, and social implications of the increasing expansion and extension of intellectual property have attracted heightened attention and concern since the 1990s. A discussion of the historical justifications for intellectual property in Western legal traditions is followed by a consideration of how these laws increasingly shape conditions of culture and communication. We show how the trade-based expansion of intellectual property has reoriented the traditional balance between private property rights and public interests, further entrenching historic inequalities and providing new obstacles to the realization of development and human rights in the global South, while reinforcing the marginalization of non-Western states, peoples, and cultures. The impact of intellectual property on access to medicine, health care, education, agriculture, and the preservation of food security, and biodiversity, illustrates the dangers of expanding intellectual property rights without consideration of public interests or the desirability of securing basic public goods. Responses to these debates demonstrate the need for - and the emergence of – new coalitions of states, activists, and critics able to forge a new politics of intellectual property that better balances private and public rights while furthering human rights and sustainable development.

556 sayılı KHK’nın 5. maddesinin ilk fıkrası, marka olabilecek işaretleri geniş bir şekilde örnekleme yöntemi ile belirtilerek; ayırt ediciliği sağlayabilmesi, çizimle görüntülenebilmesi, benzer biçimde ifade edilebilmesi, baskı yoluyla yayımlanabilmesi veya çoğaltılabilmesi şartları ile her türlü işaretin marka olarak tescil edilebileceğini hüküm altına almıştır. Ancak bu madde ile teşebbüslere sağlanan seçim özgürlüğü, aynı KHK’nın 7. ve 8. maddelerinde yer alan nispi ve mutlak ret nedenleri ile sınırlandırılmaya çalışılmıştır. Ne var ki; bir marka tescil tarihinden önce kullanılmış ve tescile konu mallar veya hizmetlerle ilgili olarak bu kullanım sonucu ayırt edici bir nitelik kazanmış ise yine marka olarak tescil edilebilmesi mümkündür. Teşebbüslere KHK’nın 5. maddesi ile geniş bir şekilde sağlanan marka seçme özgürlüğü ve kullanım sonucu ayırt ediciliği sağlayan işaretlerin KHK’nın red gerekçelerinden kolayca sıyrılabilmesi durumları neticesinde, sahibine inhisari bir tekel hakkı sağlayabilen marka hakkı, diğer kişilerin haklarını sınırlayabilecek bir konuma gelmiştir.

Ayrıca marka hakkı, diğer sınaî mülkiyet haklarından farklı olarak sahibine süre yönünden de sınırsız bir tekel hakkı bahşetmektedir. Şöyle ki, 556 sayılı KHK’ya göre; bir marka tescil edildikten sonra 10 yıllık yenileme sürelerine uyulması şartı ile marka sahibine süre yönünden sınırsız bir şekilde marka hakkını devam ettirme imkânı vermektedir. Bahsedilen bu husus da, markanın kendisinde barındırdığı tekel hakkının üçüncü kişilerin haklarını kısıtlayabileceği bir başka yönünü oluşturmaktadır.

Belirtilen nedenlerle markanın sahibine bahşettiği sınırsız sayılabilecek tekel haklarının, üçüncü kişilerin dürüst kullanımları kapsamında kalmak koşulu ile sınırlanması gerekliliği doğmuştur.

The interactive digital documentary has attracted both enthusiasm and analysis among documentarians, festival programmers and academics, and has been associated with social-action goals of engagement and activism. This article focuses on the claims to interactivity of several interactive documentaries with social-action purposes made between 2008 and 2013, through the lens of navigation. The article considers the implications of simple v. global navigation, the use of metaphor in navigation, and match with interactive objectives. The article concludes that navigation techniques are used that mimic earlier formats, and that user interactivity is currently limited largely to consumer choice, across a range of approaches. The experimental nature of the moment is noted.

What is Copyright?
Copyright is a shield that protects published and unpublished literary, scientific and artistic works. Such works can be in a tangible material form, e.g., an essay, a song, a computer graphic, a computer code, a research article, a dance sequence. Whatever we may hear, see or touch, which may be recorded in any medium like paper, audiotape, and videotape or on computer hard disk, may be covered under copyright. Copyright laws enable the creator or producer of such work exclusively to reproduce, distribute by making copies or otherwise, display, translate, transform and perform publicly. Such activity can be undertaken only by the creator of such work and not by anybody who has an easy access to that work.

Abstract
The notion of copyright has been within us since humankind needed to have protection to its intellectual creativity with an effective method to preserve its continuity. Over the centuries this protection has been widened by the legislations and case laws that tried to determine its scope regarding the legal framework and by the virtue of it, certain exceptions arose to maintain the expression of humankind’s originality through their creativeness and therefore, the notion of “fair use” has been born. However, until its born, and to this day, there are various discussions on how to effectively understand its legal position and in today’s world; with globalization and digitalization, it became even more imperative to obtain a better understanding of this notion. To tackle this highly debated and still evolving term, it is compulsory to start from how did it appear and was established in two major copyright traditions: US and EU copyright law systems, subsequently where it stands in today’s world by case evaluating case law studies and interpreting various regulations around the globe.

Harvard’s Perma.cc offers the solution to linkrot—the phenomenon that citations in academic journals to web materials disappears with the passage of time, resulting in “broken links” and disappearance of material from the Web.

This article will describe Perma.cc and outline the kinds of copyright issues that may arise, including heavy use of copyright statutes and caselaw.  It will examine the kind of preservation use of copyrighted materials, with reference to fair use, and the library prerogatives as exceptions to the exclusive rights of authors of materials found on the Web.  This analysis includes detailed analysis of “transformative use” and the four factors of 17 U.S.C. § 107.  It will consider the liability of Perma.cc and participating libraries and institutions under theories of contributory infringement and vicarious liability, including as modified by 17 U.S.C. § 512(c) and (d), governing takedown notices. 

The article concludes that Perma.cc’s archival use is neither firmly grounded in existing fair use nor library exemptions, that Perma.cc, its “registrar” library and institutional affiliates, and its contributors have some (at least theoretical) exposure to risk, and that current copyright doctrines and law do not adequately address web archival storage for scholarly purposes.  In doing so, it will question what the role of the scholarly Perma.cc citation ought to play—confirmation of scholarly propositions or preservation of and access to web materials.  The material and conclusions in this article are important for legal authors, law review editors, and librarians (especially those who use, support, or are considering partnering with Perma.cc); so that they might better assess copyright compliance, especially when selecting materials for archiving, such as articles from news sites, blogs, and professional and scholarly papers, articles or books.

Since its rise to prominence among hip hop producers thirty years ago, digital music sampling has become a popular method of music production for musicians across multiple genres. Yet case law, copyright laws, and standard music industry practices have produced a legal environment that discourages the creation of sample-based music. Artists who sample must either confront myriad obstacles inherent in obtaining permission to use samples or release unlicensed sample-based works that risk engendering expensive copyright infringement lawsuits. This has brought forth a multidecadal body of scholarship replete with various solutions to the sampler’s dilemma. But after twenty-five years of work highlighting the problems inherent in the legal environment surrounding sampling and the development of comprehensive solutions to address them, the dilemma remains. This paper seeks to explain why such reform has not happened and imagine what would be required to achieve it.

This article makes a theoretical, legal, and moral proposition that fan fiction, a form of derivative writing based on existing media and popular culture, be considered fair use of copyrighted materials under U.S. copyright law. In our discussion, we draw from the U.S. legal system's definition of fair use and significant cases related to copyright in order to make the argument that fan fiction writing constitutes fair use because it is transformative, because it is noncommercial, and, above all, because it is educational. In making this claim, we are taking a stand against corporate attempts to stamp out the creative remixing and distribution practices enabled by new technologies and are positioning ourselves in support of online participatory learning and literacy practices engaged in by youth from around the world.

The issue of fair use has become more relevant in the past few years as consumers are becoming creators through transformative works and remixed content. This is an act in which the consumer takes the presented media source content and then rearranges the audio or visuals to present a new interpretation (Burwell 2013; Coppa 2011). They are seeking ways to interact with the content; presenting their own takes of what the media means to them. And, in turn, these transformative works are becoming a cornerstone in an ever-evolving dialogue between the original creators and their fans. Remixed content is being used to both expose the prominent messages of popular culture (Busse & Lothian 2011) and re-imagine the text in ways that expose the absence of representation, such as certain cultural groups that feel pushed to the outer edges of mainstream culture (Burwell 2013). Through the use of transformative works, these consumer-creators can make their voices heard and bring to the forefront media messages that are often unacknowledged. The ensuing dialogue has the potential to transform the societal messages that media highlights, perhaps inciting change through consumer-creator involvement.

One area where the idea of transformative works has received much interest, and much debate, is in the realm of fan vids. This form of production has been referred to as 'textual poaching' in that it steals commercial products for the purpose of transforming (Lothian 2013). In these types of videos, fans take source content from their favorite media and rework or re-imagine the content to present commentary on what had previously gone unseen, and often are doing so in contradiction to the intended messages set forth by the original creator (Costello & Moore 2007). Vids such as the 2007 “Vogue” by Luminosity, which re-aligns the male gaze in Frank Miller's 300, or T. Jonesy and Killa's well-known 2004 Star Trek vid “Closer”, which looks at the concept of desire (Coppa & Tushnet 2011), are re-appropriating the original text in order to make commentary upon it. By doing so, though, these vidders and others are using visual, and often audio, content that they do not own the copyright to. This brings under scrutiny the question of content ownership and what legal rights these creators hold when presenting transformative works in the form of fan vids. Who holds the overall rights to the transformative works? And what legal allowance do transformative creators have when re-appropriating source content of others?

While fair use is often used by fan vidders as a means of protection for these works against copyright claims by the source content owners, the concept of ownership is often unclear and application of fair use principles conditional to the individual situations in which interpretation is needed. Additionally, the fan vidder's understanding of fair use application is often variable, and some vidders seek to function on the theory of allowance until being told to cease. But functioning on the basis of ignorance until being educated cannot hold fast in the ever-changing media landscape and the legal constraints within which participants must function. With the role of transformative works becoming more prominent in media culture, a more thorough understanding of the legal role of fair use is needed from both the media consumer and media owner's perspective. The two communities must learn how to address the inter-relational exchanges that have emerged as being a rule rather than an exception.

A comparison of the behaviors of two creative populations operating within cross-media environments in the U.S. and Australia tests the comparative effect of the two nations' legal environments on the range of creative expression and on costs of production in increasingly digitized production processes. The US creators have access to the flexible and expansive exception of fair use, while Australian creators' ability to use third-party copyrighted content are far more constrained. While availability of copyright exceptions plays a crucial role, other factors including demographics, disciplinary norms, and social inequality may also be important in creative practices and professions.

Copyrighted works are greatly entwined with the concept of the sharing economy because of their status as informational public goods. Unlike commercial sharing models that address tangible goods such as bikes and houses, the sharing of which is limited by their physical nature, sharing models for intangible copyrighted works such as Google Books and live game webcasting must account for the comparatively unfettered ability for these to be shared. Accordingly, these models are more focused on exploiting such works to their full commercial potential. However, these sharing models are to a large extent based on the unauthorised exploitation of copyrighted works and will be unworkable if the related copyright issues cannot be solved. The interest that copyright owners have in exclusivity must thus be balanced with the public’s interest in further exploitation of copyrighted works. Article 22 of the Copyright Law of China outlines an exhaustive list of copyright exceptions; such a restrictive list is incompatible with the sharing economy. The Chinese courts have realised this problem and have gone beyond the law in their judgments, taking a cue from their US counterparts. However, many of these decisions appear to be inconsistent with one another.

To address the aforementioned problems, this paper examines the latest proposed amendment to the Copyright Law of China and proposes several legislative and judicial actions that could help promote the sharing economy. At the legislative level, enacting legislation based on a refined open-ended fair use model is necessary to promote the development of the sharing economy. At the judicial level, Chinese courts should employ the concept of transformative use to correctly interpret legislation based on the proposed open-ended model. With transformative use as the cornerstone of copyright policy, the public gains the freedom to share others’ works, participate in the innovation process, and create works with new value. Moreover, authors would retain an incentive to create works under such a legal regime because market substitution will not occur if a work is used for a different expressive purpose than that for which the work was originally created. Thus, a balance can be achieved between promoting the sharing economy and protecting the exclusivity of copyright in China.

Increasingly, libraries of all types and sizes are now adding electronic book (ebook) titles to their collections. A survey was used to explore the implications of ebook licensing and interlibrary loan use. Among academic libraries in the United States a widespread preference for handling print books was found along with a need for more information about ebook interlibrary loan rights at one’s own institution and a means to identify format type available from potential lending libraries.

This study, based on a survey of 489 documentary filmmakers, is a case study in copyright policy in and through practice. It assesses the changes in documentary production practice around clearance of copyrighted material since the creation of the Documentary Filmmakers’ Statement of Best Practices in fair use in 2005. Fair use, an exotic and occasional feature of documentary film in 2004, has become well-known and commonly employed. Creative options for filmmakers concerning use of third-party material have dramatically improved with changes in norms after the issuing of the Statement. Attitudes about fair use are strongly associated with free expression and creative opportunity, and vary with experience. Where filmmakers have changed work because of copyright concerns, they themselves rather than any gatekeeper have made the decision to do so. Where change is associated with fair use, risk is a common concern. Newer filmmakers are more likely to support use of copyrighted material to make new work, but less likely to know about fair use, and also more likely to have experienced takedowns online. Both education about and experience with fair use appear to have an effect on practice. Filmmakers continue to lack reliable information on the actual risk landscape, and about fair use on digital platforms.

With the emergence of the digital environment, the issue of “transformative uses” in copyright law has gained renewed interest in legal literature.
While many authors emphasized the challenge that these transformative practices constituted for copyright law, there has been a clear lack of comprehensive study of the extent of copyright law's (in)hospitality to such practices. In addition, too little attention has been paid to possible solutions to resolve this conflict inside the copyright regime.
This paper aims to contribute to fill these two gaps. In this first paper, we will provide a  comprehensive assessment of the status transformative uses in EU, Belgian and French law, informed by a vast body of case law. In a second paper,  we will discuss potential solutions drawing inspiration from Canadian copyright law, which has recently experienced both the introduction of a legal exception for user generated content, and a court-led shift from a traditional closed-list fair dealing system to a broader, semi-open system of exceptions and limitations..

Abstract
Argentina is debating the reform of its copyright act, dating back to 1933, focusing on its opportunity, merit, convenience, and scope. The lack of economic understanding on the part of the actors has led to an unsatisfactory exchange of views and to the radicalization of positions.
In this article, without intending to exhaust the theory of the Economic Analysis of the Law, I propose a series of topics which the Argentine legislator should take into account in making the reform efficient, effective, as well as maximizing society’s total welfare.
The topics include the raison d'être of the regulation of public goods; monopoly’s deadweight loss; measures to reduce transaction costs; the duration of copyright, orphan works and the tragedy of the anticommons; the optimal scope for exceptions and limitation;, the regulation of collecting societies; and the onerous public domain in force in Argentina.

Resumen
Actualmente en Argentina se debate la reforma de la ley 11.723 de derecho de autor(que data de 1933), es decir, su oportunidad, mérito, conveniencia y alcance. La falta de entendimiento de conceptos económicos por parte de los actores ha llevado a un infructífero intercambio de opiniones y a la radicalización de las posiciones.
En este artículo, sin pretender agotar la teoría del Análisis Económico del Derecho, propongo una serie de temas que debiera tomar en cuenta el legislador argentino para que la eventual reforma sea eficiente, eficaz y justa a la vez, maximizando el bienestar agregado de la sociedad.
Son objeto de análisis el origen de la regulación de los bienes públicos, la pérdida neta de bienestar (consecuencia del monopolio), las medidas tendientes a disminuir costos de transacción, la duración del derecho de autor, las obras huérfanas y la tragedia de los anticomunes, el alcance óptimo de excepciones y limitaciones, la regulación de las sociedades de gestión colectiva y el dominio público oneroso vigente en Argentina.

Recommended Citation
Marzetti, Maximiliano (2017) "Análisis Económico del Derecho y reforma del Derecho de Autor: Aporte para un debate ecuánime," The Latin American and Iberian Journal of Law and Economics: Vol. 3 : Iss. 1 , Article 5.
Available at: http://laijle.alacde.org/journal/vol3/iss1/5