The Relevance of Fair Use Doctrine in the Digital World

Topics: Copyright, Digital Millennium Copyright Act, Copyright law Pages: 17 (6215 words) Published: June 1, 2012
Different proposals have been made to restrict the “fair use” exception in a digital context. Digitization provides tools to detect private digital copying of a protected work and to limit it. This may allow title-holders to prevent practices that have been important for educational and scholarly purposes. Given the power conferred by the technology, “fair use” exceptions established by the law may become inapplicable and substantially affect access to information, particularly in developing countries. The protection of databases, as established or proposed in some jurisdictions, may aggravate this problem. The development of new principles for the application in this context of “fair use” needs to be considered, including possible approaches to deal, under special rules, with the case of developing countries.

Fair use doctrine provides a set of guidelines pursuant to which researchers, educators, scholars, and others may use copyrighted works without seeking permission or paying royalties. Fair use doctrine does not provide a right to use somebody else's work, but presents a defense against accusations of copyright violation for people who reasonably believed that their use of a copyrighted work was fair use. That means that if your use is challenged, you will have the burden of proving that your use qualified as "fair use". As a general rule, a copyright owner has the legal right to restrict the reproduction of a copyrighted work, and to demand royalties when copyrighted work is reproduced. The penalties for unauthorized reproduction of copyrighted work can be substantial. Accordingly, it makes sense to have a pretty good idea of whether or not you can defensibly copy part or all of somebody else's work without that person's permission, before violating copyright law. Unfortunately, the determination of whether any given use is "fair use" can be complex. When evaluating whether or not the use of a copyrighted work is "fair use", there are four factors which must be considered: 1.What is the character of the use?

2.What is the nature of the work to be used?
3.How much of the work will you use?
4.What effect would this use have on the market for the original or for permissions if the use were widespread? In most cases, if a court determines use to be fair under the first three factors, it will not revisit that determination based upon the fourth. On the other hand, if your use is found not to qualify under any of the first three factors, a court will typically examine the economic impact of your use as part of its ultimate determination. This essentially means that if a use is fair, the economic cost to the copyright holder probably will not shift the balance to render the use unfair, but if a use is not fair the economic impact on the copyright holder becomes a central point of focus for a legal action. The digitization of information and the development of computer networks, such as Internet, are posing a new and far reaching challenge to copyright. The way in which it is finally resolved may have important implications for the access to and the use of information worldwide. The main technological change behind this "new revolution" , are improvements in data storage, manipulation and transmission of data. With digitization, all kinds of data and copyright works may be recorded and compressed in the same, binary, format. While this allows reproducing copies without any degradation (every copy is perfect), developments in software permit to manipulate data, images, voice, make "sampling" and otherwise alter works by interactive techniques . The power of digital technology has transformed the way creators work and how authors and publishers deliver copyright works. It has blurred the lines between copying and reading, sale and reuse, performance and viewing a work . The digitization of works -which are broken down to 0s and 1s- affects the very notion of what constitutes a “copyright...
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