Non-display uses of copyright works: Google Books and beyond

Copyright @ 2011 The AuthorsWith the advent of mass digitisation projects, such as the Google Book Search, a peculiar shift has occurred in the way that copyright works are dealt with. Contrary to what has so far been the case, works are turned into machine-readable data to be automatically processed for various purposes without the expression of works being displayed to the public. In the Google Book Settlement Agreement, this new kind of uses is referred to as “non-display uses” of digital works. The legitimacy of these uses has not yet been tested by Courts and does not comfortably fit in the current copyright doctrine, plainly because the works are not used as works but as something else, namely as data. Since non-display uses may prove to be a very lucrative market in the near future, with the potential to affect the way people use copyright works, we examine non-display uses under the prism of copyright principles to determine the boundaries of their legitimacy. Through this examination, we provide a categorisation of the activities carried out under the heading of “non-display uses”, we examine their lawfulness under the current copyright doctrine and approach the phenomenon from the spectrum of data protection law as could apply, by analogy, to the use of copyright works as processable data

The Lay of the Land: The Geography of Traditional Cultural Expression

Publisher website: http://www.e-elgar.co.uk/DISCLAIMER - this material is copyright protected and for personal use only.This book will appeal to scholars interested in multidisciplinary analyses of the fragmentation of international law in the field of intellectual property and ..

Tristram Shandy and the Limits of Copyright Law; Or, is a Blank Page an Idea?

Australian copyright law does not give copyright protection to ideas. However, depending on the analysis used, certain types of creative outputs can be treated as ideas, rather than the protectable expressions that are given the status of a copyright work. Denial of the status of work will affect the economic right of the creator, and they will also be denied moral rights. This paper explores copyright law's adoption of a Lockean conception of ideas through the 18th century literary property debates, but shows that in the 18th century, the concept of ideas had not hardened into the forms used now. Instead, the law accepted and acknowledged that 'books' or 'compositions' (in their conceptual sense as well as their physical sense) and compositions were literary property. Through the agency of Lawrence Sterne's digressive comic masterpiece, Tristram Shandy, a nine-volume novel published at the height of the 18th century literary property debates, the notion of Lockean ideas, textual sparcity and the concept of the creative process is juxtaposed against the oppositional categories of idea and expression now used in copyright law. It is suggested that the adoption of a concept like 'book' or 'composition' to frame textually or visually sparse creative outputs, could provide a legal recognition for creative outputs now refused copyright protection

Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It

Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay discusses the free speech value of pure copying, from audience interests to speaker interests in self-expression, persuasion, and affirmation of connection with a larger political, religious, or cultural group

Copyright norms and the problem of private censorship

This chapter "Copyright norms and the problem of private censorship" was originally published in Copyright and Free Speech: Comparative and International Analyses edited by Jonathan Griffiths and Uma Suthersanen, 2005, pp. 67-96. Link to OUP Catalog: https://global.oup.com/academic/product/copyright-and-free-speech-978019927604

Reimagining the Public Domain

In a paper included among this collection of works from the Duke Law School’s Conference on the Public Domain, James Boyle kindly credits an early essay of mine, Recognizing the Public Domain, with having contributed initially to the contemporary study of the subject. Boyle quotes a passage from that essay in which I suggested that recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain . . . . Each [intellectual property] right ought to be marked off clearly against the public domain

Facing human rights attributes of copyright in Europe in the context of the EU Digital Single Market

The principle of equality as a fundamental norm in law and political philosophy, Jurysprudencja 8., Wojciechowski B., Bekrycht T., Cern K.M., (eds.), Wydawnictwo Uniwersytetu Łódzkiego, Łódź 2017The project was financed by National Science Centre Poland (decision no. DEC-2012/05/B/HS5/01111)

The relationship between copyright and contract law

Contracts lie at the heart of the regulatory system governing the creation and dissemination of cultural products in two respects: (1) The exclusive rights provided by copyright law only turn into financial reward, and thus incentives to creators, through a contract with a third party to exploit protected material. (2) From a user perspective purchases of protected material may take the form of a licensing contract, governing behaviour after the initial transaction. Thus, a review of the relationship between copyright and contract law has to address both supply- and demand-side issues. On the supply side, policy concerns include whether copyright law delivers the often stated aim of securing the financial independence of creators. Particularly acute are the complaints by both creators and producers that they fail to benefit from the exponential increase in the availability of copyright materials on the Internet. On the demand side, the issue of copyright exceptions and their policy justification has become central to a number of reviews and consultations dealing with digital content. Are exceptions based on user needs or market failure? Do exceptions require financial compensation? Can exceptions be contracted out by licence agreements? This report (i) reviews economic theory of contracts, value chains and transaction costs, (ii) identifies a comprehensive range of regulatory options relating to creator and user contracts, using an international comparative approach, (iii) surveys the empirical evidence on the effects of regulatory intervention, and (iv) where no evidence is available, extrapolates predicted effects from theory

“I Have a [Fair Use] Dream”: Historic Copyrighted Works and the Recognition of Meaningful Rights for the Public

Dr. Martin Luther King wrote and delivered his famous “I Have a Dream” speech more than fifty years ago. When he obtained copyright protection on the speech in 1963, Dr. King (and later his estate) would have expected the copyright to last a maximum of fifty-six years. That fifty-six-year copyright has become a ninety-five-year copyright, thanks to lengthy duration extensions enacted by Congress in the mid-1970s and late 1990s. As a result, the copyright on the “I Have a Dream” speech will not expire until the end of 2058. Because the Estate of Martin Luther King, Jr., Inc. and its affili- ates have closely guarded the speech in a copyright enforcement and li- censing sense, the public seldom sees more than snippets of one of the most highly regarded speeches in history. Greater public exposure to the full speech would serve important purposes of the sort recognized by Congress in the fair use section of the Copyright Act. However, those interested in borrowing from or otherwise using the speech have tended to drop their plans or have obtained a costly license from the King Estate or one of the affiliated entities—even when the users may had have a plausible right under the fair use doctrine to borrow from or use the speech without ob- taining a license. With the copyright on the speech not expiring until the end of 2058, there is a danger that the snippets-only nature of the pub- lic’s exposure to the speech will remain the status quo for more than another four decades. Infringement cases that have not been settled by the parties have yielded judicial rulings on whether the “I Have a Dream” speech was properly copyrighted, but no case has been litigated extensively enough to permit a court to address the defendant’s fair use defense. This Article proposes a fair use analysis appropriate for use by courts in the event that a user of the “I Have a Dream” speech departs from the usual tendency to obtain a license in order to avoid litigation and, instead, rests its fate on the fair use doctrine. The proposed analysis gives a suitably expansive scope to the fair use doctrine for cases dealing with uses of the speech or similarly historic works, given the important public purposes that could be served by many such uses. The Article also develops a test for use in determining whether a work is sufficiently historic, for purposes of the fair use analysis proposed here