The U.S. Supreme Court in Sony Corporation of America v. Universal City Studios fended a
fork in the fair use road. The Court there upset the longstanding expectation that uses would
rarely, if ever, be fair when the whole of a work was copied. In the aftermath of that
decision, lower courts have rendered a plethora of decisions deeming the copying of an
entire work (even with no additional authorship contribution) a fair use, and therefore “free”
in both senses of the word. A perceived social benefit or some market failure appears to
motivate these decisions. This is because fair use is an on/off switch: either the challenged
use is an infringement of copyright or it is a fair use, which section 107 declares “is not an
infringement of copyright.” As a result, either the copyright owner can stop the use, or the
user not only is dispensed from obtaining permission, but also owes no compensation for
the use. I contend that fair use for free should be available only where a second author
copies in the creation of a new work (instances which I will call productive uses). By
contrast, when the entire work is copied for essentially distributive purposes, courts and
legislatures should sometimes allow the use, but subject it to an obligation to compensate
authors and rights holders. This is not a radical idea: the United States is in fact an outlier in
the broader international landscape of copyright exceptions. Many countries have permittedbut-paid
regimes for various uses, including those by libraries, educational institutions, and
technologies. Indeed, the United States has some as well, particularly respecting new
technological modes of dissemination. For many authors and other members of the creative
communities, while their works stoke the engines of others’ enterprises, the Internet age has
proffered more rags than riches. Creators should be compensated for the non-creative reuse
of their works.
The U.S. Supreme Court in Sony Corporation of America v. Universal City Studios fended afork in the fair use road. The Court there upset the longstanding expectation that uses wouldrarely, if ever, be fair when the whole of a work was copied. In the aftermath of thatdecision, lower courts have rendered a plethora of decisions deeming the copying of anentire work (even with no additional authorship contribution) a fair use, and therefore “free”in both senses of the word. A perceived social benefit or some market failure appears tomotivate these decisions. This is because fair use is an on/off switch: either the challengeduse is an infringement of copyright or it is a fair use, which section 107 declares “is not aninfringement of copyright.” As a result, either the copyright owner can stop the use, or theuser not only is dispensed from obtaining permission, but also owes no compensation forthe use. I contend that fair use for free should be available only where a second authorcopies in the creation of a new work (instances which I will call productive uses). Bycontrast, when the entire work is copied for essentially distributive purposes, courts andlegislatures should sometimes allow the use, but subject it to an obligation to compensateauthors and rights holders. This is not a radical idea: the United States is in fact an outlier inthe broader international landscape of copyright exceptions. Many countries have permittedbut-paidregimes for various uses, including those by libraries, educational institutions, andtechnologies. Indeed, the United States has some as well, particularly respecting newtechnological modes of dissemination. For many authors and other members of the creativecommunities, while their works stoke the engines of others’ enterprises, the Internet age hasproffered more rags than riches. Creators should be compensated for the non-creative reuseof their works.
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