Comments for Fair Use Discussion

Comments for Fair Use Discussion

Reply to

 

TWO
 (at a min but feel free to do more) classmates’ posting in a paragraph of at least five sentences (
150-300 words
) by asking questions, reflecting on your own experience, challenging assumptions, pointing out something new you learned, offering suggestions. These peer responses are 
NOT
 ‘attaboys’. They are 
 NOT
 letters. You do not need to say “Hi” and/or sign your responses.  You should make your initial post by Thursday evening so your classmates have an opportunity to respond before 
Saturday 2359 
when all three posts are due. Your responses should each be on a different day and your OP on a different day so that you are entering the class 3 times at a min during the week. All assignments maybe turned in early if you wish. 

It is important that you use your own words, that you cite your sources, that you comply with the instructions regarding length of your post and that you reply to two classmates in a substantive way (not ‘nice post’ or the like).  Your goal is to help your colleagues write better. Do not use spinbot or other word replacement software. It usually results in nonsense and is not a good way to learn anything. . I will not spend a lot of my time trying to decipher nonsense. Proof read your work or have it edited. Find something interesting and/or relevant to your work to write about.  Please do not submit attachments unless requested.

First Discussion

In my opinion, Fair Use of copyrighted material should be expanded. The primary goal and objective of copyright are to ensure the balance of the authors’ interests and society. This move provides that it rewards the authors while ensuring the availability of their work to society. Hobbs (2018) suggests that the law should provide that it carefully balances such interests because when they concentrate the advantages of comprehensive copyright protection in quite a few people and businesses, the expenses of that protection can be widely spread amongst each potential user of the works protected by copyright, which involves almost the whole population (Burke, 2014).  However, copyright scholarships lament a protectionist bias within the law, but through the expansion of the fair use of copyrighted material, the court can reduce such protectionism.

Copyright guarantees the protection of the author’s original works. Tokizane (2010) found that the law entitles many copyright owners to different types of exclusive rights, such as reproduction, development of derivative works, allocation, as well as performance. Therefore, violating one of these exclusive rights, like importing the protected work copies, can lead to infringement. “Violations often occur when the use is motivated primarily by a desire for commercial gain” (Stim, n.d.).Thus, the expansion of the copyright act ensures a fair use exception for possible infringement uses. Additionally, the copyright statute facilitates fair use for other purposes, including comments, teaching, research, criticism, or scholarship.  Further, this expansion will emphasize on the review of some critical forces that help to identify whether the application of a particular material is or is not fair use.

The first force to consider is the character of applying copyrighted materials like whether it is for nonprofit, commercial, or educational purposes. “For example, quoting or excerpting a work in a review or criticism for purposes of illustration or comment would normally be fair use” (Stim, n.d.). Second, the expansion of the copyright statute will ensure the consideration of the nature of the underlying of the specific copyrighted work.  By reviewing this factor, the Appellate court will be able to determine whether the copyrighted work is fictional or factual and the time investment, creative, and expenses used in work.  The third factor is determining the similarity between the substantiality and amount of the applied underlying copyright work compared to the underlying work in general. The last factor in reviewing is the impact of using the underlying value of the work and its potential market (Tokizane, 2010). By considering these forces, the court of appeal will encourage the owners of the copyright incentive to create copyrightable works. 

Today, most of the appellate courts are considering these forces more liberally. Recent judicial decisions show that by applying these critical factors, the court of laws discovers that the uses are of fair use and not infringing (Burke, 2014). This move is a positive one in helping to balance the interests of society against the increasingly vital monopoly interests of the author of the original work. “In fact, while it initially seems like the public’s benefits comes at a cost of copyright holders, a liberal view of fair use could even benefit copyright holders themselves indirectly” (Burke, 2014). Therefore, the expansion of the fair use of copyright material will benefit both the copyright holders and the public at large.  

Second Discussion

Fair Use laws are in place in the United States of America in order to ensure that there is a transformative work that can occur when it comes to a work, which would include criticism, comments on works, as well as parodies of a work. This would include the law being used without permission from the owner of the copyright.

            Fair Use laws are in place in order to ensure that the copyright system does not limit creativity. It is often the only defense that is in place for copyright infringement, and it can be seen that it has been used quite frequently as well. However, it can be seen that the definition of transformative that has been provided legally, is quite ambiguous, and vague. This would often mean that there have been many lawsuits that have been filed, and millions of dollars have been spent in order to look at copyright infringement. This is often done by works that have been created by artists and other creators. According to Aufderheide, “The creators of these works often find themselves at odds with the corporate owners of the media products they utilize to construct their remixes, and can receive cease-and-desist (C&D) letters from the corporation lawyers, and even be fined or face other legal action” (Aufderheide, 2016). These actions would be incredibly harmful to the creators and would stop the entire process of innovation as well.

A potential issue would be the nature of the idea of fair use. According to Stim, “The unpaid nature of fair use introduces pressures that may distort analysis, particularly of the “transformative” character of the use, and of potential market harm” (Stim, 2017). This is one of the primary reasons that the idea of fair-use and any legislature pertaining to the same would need to be changed, in order to ensure that there is a great deal of innovation that would continue to happen. While it can be said that the social benefits of the law would account for the unpaid nature of the law, the fact of the matter would be that this would need to be changed in order to ensure that innovation continues to happen in the United States of America.

Fair use often also proves as a very unstable defense and is confusing to both the original creator of the content, as well as accused. Alakur says, “Nominative fair use doctrine is both confused and manifestly unfair to speakers who are using trademarks in the context of fully protected speech” (Alakur, 2015). This would mean that fair-use would be ineffective against many defenses, and as the way that it stands, it would not be a proper defense. There have been many suggestions that have been made, including the Rogers approach, to make the fair-use defense less vague.

Thus, I believe that fair use laws should be codified, and expanded on, in order to make them clearer, and in order to ensure that they could work as a better defense. This would help in making the defense less vague, and thus, improving it.