Pub Date : 2021-01-07DOI: 10.1017/9781108671101.011
Ariel Katz
Eleven decades ago, on December 16, 1911, the Imperial Copyright Act of 1911 received royal assent, codifying fair dealing for the first time, and thus explicitly recognizing it, in the imperial copyright legislation. Ten years later, the same fair dealing provision would appear in the Canadian Copyright Act and would remain the basis of the current fair dealing provisions. Tragically, what was supposed to be an exercise in the codification of a dynamic and evolving common law principle, usually referred to as “fair use,” ended up – with a few notable exceptions – in a hundred years of solitude and stagnation. Misinterpreting the 1911 Act, some courts and commentators in the UK and other Commonwealth countries adopted a narrow and restrictive view of fair dealing. Meanwhile, in the United States, fair use, the same common law concept that English and American courts developed, remained uncodified for most of the twentieth century. When the United States finally codified fair use in 1976, Congress left no doubt that the codification would not alter its common law basis and ought not hinder its flexibility and adaptability. Thus, toward the end of the twentieth century, a noticeable split in Anglo-American copyright law emerged: an open, flexible, and general fair use regime in the United States, and a seemingly rigid and restrictive fair dealing tradition in the Commonwealth countries.
{"title":"Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?","authors":"Ariel Katz","doi":"10.1017/9781108671101.011","DOIUrl":"https://doi.org/10.1017/9781108671101.011","url":null,"abstract":"Eleven decades ago, on December 16, 1911, the Imperial Copyright Act of 1911 received royal assent, codifying fair dealing for the first time, and thus explicitly recognizing it, in the imperial copyright legislation. Ten years later, the same fair dealing provision would appear in the Canadian Copyright Act and would remain the basis of the current fair dealing provisions. Tragically, what was supposed to be an exercise in the codification of a dynamic and evolving common law principle, usually referred to as “fair use,” ended up – with a few notable exceptions – in a hundred years of solitude and stagnation. Misinterpreting the 1911 Act, some courts and commentators in the UK and other Commonwealth countries adopted a narrow and restrictive view of fair dealing. Meanwhile, in the United States, fair use, the same common law concept that English and American courts developed, remained uncodified for most of the twentieth century. When the United States finally codified fair use in 1976, Congress left no doubt that the codification would not alter its common law basis and ought not hinder its flexibility and adaptability. Thus, toward the end of the twentieth century, a noticeable split in Anglo-American copyright law emerged: an open, flexible, and general fair use regime in the United States, and a seemingly rigid and restrictive fair dealing tradition in the Commonwealth countries.","PeriodicalId":424117,"journal":{"name":"The Cambridge Handbook of Copyright Limitations and Exceptions","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114713172","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-07DOI: 10.1017/9781108671101.012
M. Handler, Emily Hudson
{"title":"Fair Use As an Advance on Fair Dealing? Depolarizing the Debate","authors":"M. Handler, Emily Hudson","doi":"10.1017/9781108671101.012","DOIUrl":"https://doi.org/10.1017/9781108671101.012","url":null,"abstract":"","PeriodicalId":424117,"journal":{"name":"The Cambridge Handbook of Copyright Limitations and Exceptions","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122638881","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-07DOI: 10.1017/9781108671101.024
Alice Lee, Brendan Clift
{"title":"From Fair Dealing to User-Generated Content: Legal La La Land in Hong Kong","authors":"Alice Lee, Brendan Clift","doi":"10.1017/9781108671101.024","DOIUrl":"https://doi.org/10.1017/9781108671101.024","url":null,"abstract":"","PeriodicalId":424117,"journal":{"name":"The Cambridge Handbook of Copyright Limitations and Exceptions","volume":"226 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133204363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-27DOI: 10.1017/9781108671101.014
C. Geiger
This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, although long contested, such an approach is now mandated by EU primary law, thus “flexibilizing” significantly the legal framework in this area. It then examines the balancing act between fundamental rights and copyright, with particular attention paid to the weight the judiciary should afford freedom of artistic expression versus copyright law in cases of creative appropriation, in order to comply with the obligations resulting from European, national, and international human rights provisions. Finally, the chapter concludes with a discussion and evaluation of the growing need for legislative reform to render freedom of artistic expression fully compatible with copyright law in the context of creative reuses of protected works.
{"title":"“Fair Use” through Fundamental Rights in Europe: When Freedom of Artistic Expression Allows Creative Appropriations and Opens Up Statutory Copyright Limitations","authors":"C. Geiger","doi":"10.1017/9781108671101.014","DOIUrl":"https://doi.org/10.1017/9781108671101.014","url":null,"abstract":"This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, although long contested, such an approach is now mandated by EU primary law, thus “flexibilizing” significantly the legal framework in this area. It then examines the balancing act between fundamental rights and copyright, with particular attention paid to the weight the judiciary should afford freedom of artistic expression versus copyright law in cases of creative appropriation, in order to comply with the obligations resulting from European, national, and international human rights provisions. Finally, the chapter concludes with a discussion and evaluation of the growing need for legislative reform to render freedom of artistic expression fully compatible with copyright law in the context of creative reuses of protected works.","PeriodicalId":424117,"journal":{"name":"The Cambridge Handbook of Copyright Limitations and Exceptions","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127040211","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-08-31DOI: 10.1017/9781108671101.004
C. S. Yoo
Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts. This Chapter argues that the conventional wisdom is too limited. It offers too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the results of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of the interactions between creativity and personality. Psychologists, aestheticians, and philosophers have underscored how originating creative works can play an important role in self-actualization. When combined with the insight creative works frequently borrow from the corpus of existing works, this insight provides a basis for this insight provides a basis for broadening fair use rights. Moreover, to the extent that works must be shared with audiences or a community of like-minded people in order to be meaningful, it arguably supports a right of dissemination. The result is a theory that values the creative process for the process itself and not just for the artifacts it creates, takes the interests of follow-on authors seriously, and provides an affirmative theory of the public domain. The internal logic of this approach carries with it a number of limitations, specifically that any access rights be limited to uses that are noncommercial and educational and extend no farther than the amount needed to promote self-actualization.
{"title":"Self-Actualization and the Need to Create As a Limit on Copyright","authors":"C. S. Yoo","doi":"10.1017/9781108671101.004","DOIUrl":"https://doi.org/10.1017/9781108671101.004","url":null,"abstract":"Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts. \u0000 \u0000This Chapter argues that the conventional wisdom is too limited. It offers too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the results of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of the interactions between creativity and personality. Psychologists, aestheticians, and philosophers have underscored how originating creative works can play an important role in self-actualization. When combined with the insight creative works frequently borrow from the corpus of existing works, this insight provides a basis for this insight provides a basis for broadening fair use rights. Moreover, to the extent that works must be shared with audiences or a community of like-minded people in order to be meaningful, it arguably supports a right of dissemination. \u0000 \u0000The result is a theory that values the creative process for the process itself and not just for the artifacts it creates, takes the interests of follow-on authors seriously, and provides an affirmative theory of the public domain. The internal logic of this approach carries with it a number of limitations, specifically that any access rights be limited to uses that are noncommercial and educational and extend no farther than the amount needed to promote self-actualization.","PeriodicalId":424117,"journal":{"name":"The Cambridge Handbook of Copyright Limitations and Exceptions","volume":"71 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129901637","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
With the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled in 2013, the international copyright community has shown its willingness to take further steps in the harmonization of limitations and exceptions in the field of copyright. However, the Marrakesh Treaty is only the tip of the iceberg. Its preparation and negotiation took place against the background of a much broader debate over the introduction of so-called “ceilings” in international copyright law: binding rules that set a maximum level of permissible protection. While the Marrakesh Treaty entered into force on September 30, 2016, the bigger project of regulating the ceilings of copyright protection in an international instrument is still pending. Hence, the question arises whether the results of the small step of adopting the Marrakesh Treaty are encouraging enough to take the giant leap of discussing ceilings of copyright protection and establishing a general Copyright Limitations Treaty. To answer this question, the following analysis will first shed light on the peculiar configuration of the Marrakesh Treaty. The Treaty combines both very specific and very open rules on L&Es for blind and print-disabled persons with the abstract criteria of the “three-step test” known from Article 9(2) BC, Article 13 TRIPS and Article 10 WCT. As a result of this treaty architecture, the objective of offering maximum legal certainty in respect of use privileges for blind, visually impaired and print-disabled persons is compromised. The Marrakesh Treaty can lead to a nightmare scenario in which neither the goal of legal certainty nor the advantage of flexibility is realized. However, the Marrakesh Treaty also demonstrates how international norms could be structured to arrive at a sufficiently flexible and sustainable treaty framework for the regulation of limitations and exceptions at the national level. Certain features of the Treaty can serve as a source of inspiration for the development of a dream scenario.
{"title":"A Copyright Limitations Treaty Based on the Marrakesh Model: Nightmare or Dream Come True?","authors":"Martin Senftleben","doi":"10.2139/SSRN.3064823","DOIUrl":"https://doi.org/10.2139/SSRN.3064823","url":null,"abstract":"With the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled in 2013, the international copyright community has shown its willingness to take further steps in the harmonization of limitations and exceptions in the field of copyright. However, the Marrakesh Treaty is only the tip of the iceberg. Its preparation and negotiation took place against the background of a much broader debate over the introduction of so-called “ceilings” in international copyright law: binding rules that set a maximum level of permissible protection. While the Marrakesh Treaty entered into force on September 30, 2016, the bigger project of regulating the ceilings of copyright protection in an international instrument is still pending. \u0000Hence, the question arises whether the results of the small step of adopting the Marrakesh Treaty are encouraging enough to take the giant leap of discussing ceilings of copyright protection and establishing a general Copyright Limitations Treaty. To answer this question, the following analysis will first shed light on the peculiar configuration of the Marrakesh Treaty. The Treaty combines both very specific and very open rules on L&Es for blind and print-disabled persons with the abstract criteria of the “three-step test” known from Article 9(2) BC, Article 13 TRIPS and Article 10 WCT. As a result of this treaty architecture, the objective of offering maximum legal certainty in respect of use privileges for blind, visually impaired and print-disabled persons is compromised. The Marrakesh Treaty can lead to a nightmare scenario in which neither the goal of legal certainty nor the advantage of flexibility is realized. However, the Marrakesh Treaty also demonstrates how international norms could be structured to arrive at a sufficiently flexible and sustainable treaty framework for the regulation of limitations and exceptions at the national level. Certain features of the Treaty can serve as a source of inspiration for the development of a dream scenario.","PeriodicalId":424117,"journal":{"name":"The Cambridge Handbook of Copyright Limitations and Exceptions","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124631284","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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