Context

The desire to protect the rights of creative people to their works has been an ongoing struggle for several centuries beginning with the first copyright law in 1710, the Statute of Anne. This British statute inspired the enactment of the United States’ copyright law, as well as all the copyright laws of countries which enacted these laws, and was meant to be “An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during” a certain period of time. The justification for its enactment was written in its preamble that “authors…and their families” were “too often” financially ruined by those who pirated the written work of authors (“The Statute of Anne”).

Later, in 1787, the newly established United States adopted parts of the British statute into the Constitution with a similar purpose “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (“Copyright Timeline”). These laws established the right of a creative person to protect his or her intellectual property. Intellectual property “refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce,” according to the World Intellectual Property Organization. Intellectual property rights is the broad term for the various forms of protection that guard the rights to this property, these forms are known as copyrights, patents, and trademarks. Violations of these intellectual property rights in copyright are known as copyright infringements. Copyright infringement is often mistakenly thought to be plagiarism. Plagiarism is when a person takes the work of another person and claims it as his or her own. Copyright infringement, on the other hand, refers to the act of making a copy of someone else’s work without their permission. This would include making copies of textbook pages, artworks, quotes, sound bites, etc. (Saunders).

As they originally stood, the Copyright Clause of the United States’ Constitution and the Statute of Anne only protected those whose works had already been published and thus it neglected the rights of students, educators, critics, and reporters as well as future authors and inventors. This is due to the nature of learning as well as human creativity, which is that “all intellectual creative activity,” and intellectual exploration, “is in part derivative.” Humans cannot create from nothing, and so there is “no such thing as a wholly original thought or invention” because in order to create and learn, people must build upon the works of others. This derivative nature of creativity and intellectual exploration presented a major problem for the law, which was then handed off to the courts to solve. It was decided by the British courts that “certain instances of unauthorized reproduction of copyrighted material…would not infringe” on the rights of the copyright holder (Leval). This would become known as “fair use,” which was later expounded upon in America by Justice Joseph Story who “examined the justifiable use of original materials” along with the rest of the Massachusetts Circuit Court in the 1841 Folsom v. Marsh case (“Folsom v. Marsh”).

This approach to the fair use question was later put into legislation and became part of the Copyright Act of 1976, as its 107th Section, better known as the Fair Use Doctrine. In this section it expresses the limitations of copyright holders’ rights in regards to their work and lists four factors that are meant to be used “in determining whether the use made of a work in any particular case is a fair use.” These four factors are, in chronological order, “the purpose and character of the use,” “the nature of the copyrighted work,” how much of the copyrighted material is “used in relation to the copyrighted work as a whole,” and the “effect of the use” has on the “potential market for or value of the copyrighted work.” In addition to these four factors, it specifies in this section of the law that use of copyrighted material “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research” is not infringement (“Section 107”).

However, outside of the “preference for the critical, educational, and nonprofit over the commercial,” the fair use doctrine gives few hints as to the meaning of the first factor, and “no guidance for distinguishing between acceptable and excessive levels” according to Judge Pierre N. Leval, a United States Circuit Judge of the U.S. Court of Appeals for the Second Circuit with a history of dealing with intellectual property rights lawsuits. Judge Leval, in his essay, “Toward a Fair Use Standard,” attempts to clear up this issue by expounding upon the purpose of the Copyright law and the parameters of Fair Use. In this, he proposes a new type of fair use within the first factor, transformative use. In order for a work to exhibit transformativeness, its use of the copyrighted material “must be productive” and “employ the quoted matter in a different manner or for a different purpose from the original” (Leval). A possible definition of transformative use could be that the derivative work should show significant alteration from the original copyrighted work and be distinctly different so as to alter the purpose from that of the original piece. Such “transformative use,” as described by the Judge, recognizes that creative works are derivative of previous, inspiring works, and thus may help to further encourage the promotion of the arts and sciences. The United States Congress should amend the Copyright Act of 1976 Section 107 to include a clear definition of “transformativeness” in the Fair Use Doctrine. Adding a definition of transformativeness to the law, may benefit the United States governmentally, economically, and theologically.

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