Fair Use in Copyright Fiorello Klein

Dad what is gravity. Mom how come stars don’t fall down from heaven Dad what is gravity? Mom how come stars don’t fall down from heaven? How many people live in Europe? Dad what is an atom? What language do they speak Switzerland? Why is the air transparent? Why does the sun set? How far is Moscow?

1 – Go ask your mother!!!

1 – Go ask your mother!!! 2 –  Go ask your teacher!!!

1 – Go ask your mother!!! 2 –  Go ask your teacher!!!   3 – Go to the library to find out!!!

1 – Go ask your mother!!! 2 –  Go ask your teacher!!!   3 – Go to the library to find out!!!   4 – Look it up in the encyclopedia!!!

developments of copyrights The scope of protected works has grown explosively. new layers of protection to the standard reached under the Berne Convention. increasing number of right owners

Art. 2 Berne Convention The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

Preambule WCT The Contracting Parties, Desiring  to develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible,  Recognizing the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention

Development Copyright Limitations Technical Developments

So if there’s nothing wrong about flexible, broad exclusive rights then what is wrong with this system? Inconsistency

Inconsistency unfairness So if there’s nothing wrong about flexible, broad exclusive rights then what is wrong with this system? Inconsistency unfairness

Inconsistency unfairness discrimination So if there’s nothing wrong about flexible, broad exclusive rights then what is wrong with this system? Inconsistency unfairness discrimination

Art. 5 of the Copyright Directive a closed catalogue of 20 carefully-defined copyright limitations But these same limitations have to comply with “the three step test” (abstract criteria which limit the use of these limitations)

3 step test The limitations given by the Directive can ONLY be applied: 1-     in certain special cases, 2-      which do not conflict with a normal exploitation of the work or other subject-matter 3-      and do not unreasonably prejudice the legitimate interests of the rightholder.

4 abstract criteria to take into account: How to restore the balance between the rights of authors and the rights of the larger public interest? Fair use 4 abstract criteria to take into account: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.  

thumbnail Explanation Wikipedia: Thumbnails are reduced-size versions of pictures, used to help in recognizing and organizing them, serving the same role for images as a normal text index does for words. Explanation www.dictionary.com: A reduced image of a graphic or document page, used in order to view multiple images on a screen simultaneously or to download such images more rapidly.

US Court of Appeals for the Ninth Circuit, May 16, 2007, Perfect 10, Inc. vs. Amazon.com. FD3d. : “the significantly transformative nature of Google’s search engine, particularly in light of its public benefit, outweighs Google’s superseding and commercial uses of the thumbnails in this case. In reaching this conclusion, we note the importance of analyzing fair use flexibly in light of new circumstances.”

Landgericht Hamburg, September 26, 2008, case no Landgericht Hamburg, September 26, 2008, case no. 408 O 248/07, section B.I.6.d. “…essential importance for structuring the decentralized architecture of the world wide web, localizing widely scattered contents and knowledge, and therefore, ultimately, for the functioning of a networked society.”

nevertheless: image search not covered by quotation right Landgericht Hamburg, September 26, 2008, case no. 408 O 248/07, section B.I.6.d. “…essential importance for structuring the decentralized architecture of the world wide web, localizing widely scattered contents and knowledge, and therefore, ultimately, for the functioning of a networked society.” nevertheless: image search not covered by quotation right

“…it was the task of the legislator to solve the tension between the strong public interest in efficient access to graphical online information and the economic interests of search engine providers on the one hand, and the interests of authors on the other.”

Slow reaction in case of specific exceptions Germany; quotation right confined to criticism and comment Regional Court Hamburg, September 26, 2008: Google image search not covered Netherlands: broader quotation right including announcements image search not unlikely to be permissible under this standard

Running together with Fair Use: Flexible Limitations Technical Developments Broad exclusive rights