The Relevance of Fair Use Doctrine in the Digital World

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Abstract. Different proposals have been made to restrict the “fair use” exception in a digital context. Digitization provides tools to detect private digital copying of a protected work and to limit it. This may allow title-holders to prevent practices that have been important for educational and scholarly purposes. Given the power conferred by the technology, “fair use” exceptions established by the law may become inapplicable and substantially affect access to information, particularly in developing countries. The protection of databases, as established or proposed in some jurisdictions, may aggravate this problem. The development of new principles for the application in this context of “fair use” needs to be considered, including…show more content…
For that reason, the fair use doctrine consistently creates difficult issues for you and your clients. It is ironic, then, that “fair use” is the copyright issue most likely to confront an average copyright user. Fair use issues arise in a wide variety of everyday contexts, including the classroom, the boardroom, the record industry, the theater, and the movie industry. Typical fair use conflicts likely to arise in practice include: • copying for educational purposes both in the classroom and the boardroom ; • quoting from copyrighted sources in reporting, reviews, and scholarly research ; • uploading or downloading copyrighted material to or from a website; • “sampling” copyrighted material in sound recordings or including copyrighted material as scenery in a motion picture or theater set; and • use of copyrighted material in a parody. 3. Basis of the fair use doctrine The fair use doctrine “creates a limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner’s consent.” It permits unauthorized uses that otherwise would constitute infringement but are deemed noninfringing because they advance the underlying constitutional purpose of copyright law: to promote broad public availability of literature, music, and other forms of creative arts. The constitutional principle
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