Category Fair Use

Creation is Not a Closed Book Exam: Developing the Best Practices in Fair Use for Open Educational Resources

[Will Cross and Meredith Jacob] You can learn a lot from which questions people ask you, and which they don’t. As educators and advocates for building openly-licensed textbooks and other open educational resources (OER), we spend a lot of our time at conferences and workshops talking about how to understand and use Creative Commons licenses. As we’ve done presentations over the past few years, however, we noticed that attendees generally listened politely to our presentation and then spent the entire question and discussion period asking pointed questions about how fair use fits in.

Fair Use Jurisprudence 2019–2021

[Jack Lerner, Luke Hartman, and Jordin Wilcher] We are excited to celebrate Fair Use Week with a new report from the UC Irvine School of Law’s Intellectual Property, Arts, and Technology (IPAT) Clinic: Fair Use Jurisprudence 2019–2021: A Comprehensive Review... At the UCI Intellectual Property, Arts, and Technology Clinic, we work with independent filmmakers to make sure that when they do need to make fair use, they can do so responsibly, appropriately, and safely. Over the past couple of years, our Filmmaker Counseling team began to hear of a rising number of fair use opinions coming out of the federal courts, and we decided to embark on an exhaustive study of recent fair use decisions in copyright infringement cases. In total, we identified and analyzed seventy-two opinions issued by federal courts and made available on Westlaw or Lexis between January 1, 2019, and February 25, 2021. In our report, we provide abstracts of 72 opinions along with some commentary on selected cases.

Taking Access Seriously

[BJ Ard] Abstract: Copyright is conventionally understood as serving the dual purposes of providing incentives for the creation of new works and access to the resulting works. In most analysis of copyright, however, creation takes priority. When access is considered, it is often in the context of how access relates back to the creation of new works. Largely missing is an account of the value of access on its own terms. So what is the place of access in copyright law and policy? A set of cases dealing with copyright owners’ attempts to enjoin the markets created by new playback and distribution technologies is instructive.

Fair Use in Practice: South Korean Film Directors’ Copyright Understanding

[Yoonmo Sang, Patricia Aufderheide, Minjeong Kim] Abstract: This study, based on a survey of 100 South Korean film directors, investigates their understanding and employment of fair use. South Korean film directors are largely unaware of this law that could improve their capacity to create work more effectively and at lower cost. Furthermore, they engage in self-censorship, which can limit their creative choices. Many such choices inhibit the exploration of South Korea’s vigorous popular culture and its history. These obstacles largely lie not with the law, but with knowledge and norms in the field.

12 South African Civil Society Groups Demonstrate for COPyright Reform on UN International Human Rights Day

On December 10, International Human Rights Day, twelve South African civil society groups called on the government to modernize its copyright law. The groups led a march from the Department of Trade and Industry to the Union Buildings and delivered a memorandum demanding the passage of copyright reform to protect vital rights.

Copyright Law and the Creative Industries – QUT Faculty of Law – 29 October 2020

[Research Symposium, QUT Faculty of Law, 29 October 2020] This event focused upon copyright law and the creative industries. It brought together legal scholars, policy-makers, and practitioners; creative artists from an array of disciplines; as well as theorists of new media and digital technologies. The event considered the origins of copyright law, policy, and practice. Speakers explored their recent historical work about the foundation and evolution of copyright law and policy.

SOUTH AFRICA’S COPYRIGHT AMENDMENT BILL – 5 YEARS ON

[Denise Nicholson] ... On 16 June 2020, the President elected to refer the Bill back to Parliament on the grounds of “constitutional concerns”. What is very disappointing and surprising is that the President ignored a Senior Counsel’s Opinion on the Bill, sent to his office, as well as hundreds of submissions, letters, messages, and public presentations in favour of these exceptions throughout the legislative process. Instead, and perhaps under pressure, he sent the Bill back based purely on one submission to Parliament made by a Senior Counsel on behalf of his client, the Copyright Coalition of South Africa. He failed to give his own presidential reasons or opinion as to why issues raised were likely to be "unconstitutional”.

South Africa Parliament Moves Up Copyright Hearing to Tuesday, August 18

[Sean Flynn] South Africa’s Portfolio Committee on Trade and Industry, (National Assembly), announced to stakeholders today that it is moving the scheduled briefing on the Copyright and the Performers’ Protection Amendment Bills to Tuesday August 18 at 9:00-12:00, via a virtual meeting platform. The meeting is scheduled to include briefings by the Department of Trade, Industry and Competition and by the Parliamentary Legal Advisor on the remitted Copyright and of the Performers’ Protection Amendment Bills. According to the Portfolio Comittee’s announcement, the presentations will discuss “the constitutionality of specific clauses and procedural deficiencies and on the process forward.”

ON A KNIFE EDGE? SOUTH AFRICA’S NEW COPYRIGHT LAW

[EIFL] The Copyright Amendment Bill [B13B - 2017] had been sitting on the desk of President Cyril Ramaphosa for over a year waiting to be signed into law. In June 2020, when Blind South Africa issued a legal challenge over the delay, the President acted. But instead of signing the Bill that had been approved by the legislature, the President used his prerogative to return it to parliament citing constitutional concerns with certain aspects, including new exceptions for libraries, education and persons with disabilities. The President’s rejection of the Bill is widely seen as the result of pressure by copyright industries, and the threat of trade sanctions and reduced future investment from the United States and the European Union.

How Far Can Regulations Go? A South African Public Law Perspective on the Potential Response through Regulations to Legitimate and Genuine Issues in the Copyright Amendment Bill, B-13B of 2017

[Jonathan Klaaren] Abstract: This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in the Presidency as part of a section 79 process. This working paper addresses several issues in South African law relevant to determining whether and to what extent regulations may address genuine problems in the Copyright Amendment Bill [CAB]. Regulations are of course not yet drafted for this Bill and the Bill remains a Bill and is not yet an Act. Indeed, as discussed further below, the Bill is currently under consideration in Parliament as part of a section 79 process. In addition to its focus on the CAB, this paper identifies a set of emerging South African public law issues associated with similarly situated legislation.

MEP Pospíšil Asks Why the European Commission Intervened in the South African Copyright Amendment Bill

Last March, the European Commission sent a letter to the South African government warning that its proposed Copyright Amendments Bill carried a "significant legal uncertainty, with negative effects on the South African creative community in general and on foreign investment, including European investment." In May, MEP Jiří POSPÍŠIL asked who from the Commission sent the letter and why they did so. He noted that the Bill "was the result of a consultation involving representatives of all sectors of South African society, and it concluded that it was the best option available and that it was expected to bring positive effects for South African society." He also asked which multinational companies the Commission had communicated with about the Bill.

South African President’s Reservations to Copyright Bill Not Supported by Law

The President of South Africa recently exercised his power to return the long considered Copyright Amendment Bill back to Parliament because of reservations about its constitutionality. Specifically, the South African President declared unconstitutional the provisions in the bill that would require contracts with creators to include royalty payments, the reversion of ownership rights back to creators, and the introduction into South Africa of a fair use right and other common exceptions to copyright. The move was immediately heralded by representatives of collecting management organizations, multinational publishers and music labels as a win for creators. In fact, the provisions declared unconstitutional by the President serve the interests of individual creators vis a vis these well-heeled intermediaries who lobbied extensively against the bill. This note analyzes the specific constitutional reservations given by the President for his referral and concludes that all of them are acutely unsupported.