The whole concept of Copyright violation is so fuzzy that it has been creating havoc on the entertainment industry from time to time. Be it the infamous Napster case or the YouTube of today; copyright issue has been at the heart of this industry. It is a very complicated concept. As defined “Copyright is a legal concept, enacted by governments, giving the creator of an original work of authorship exclusive rights to control its distribution for a certain time period, after which the work enters the public domain”. But, there is a problem here, in all countries where the Berne Convention standards apply, copyright is automatic, and need not be obtained through official registration with any government office. As ruled by the US Supreme court, a Copyright, unlike a Patent, gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself. Everyone is free to write about others’ ideas, as long as each expresses the ideas in his/her own way. Further, if there is only one or very few ways of manifestation/expression of an idea, courts should find the idea and its expression to be “merged,” and refuse to protect such expression in order not to grant a monopoly on an idea. So, in essence you cannot copy an author’s description, explanation, illustration, or depiction of a useful art and other ideas.
Now, the cover under which this entire copyright infringement game is played is what is widely known as ‘Fair Use’. Based on U.S. Copyright Office, there are four factors (listed in order of importance) which are considered for deciding whether or not a particular use is ‘Fair Use’. These factors are:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
· Transformation is a criterion for deciding on this factor. A certain use of a work does not infringe its holder's copyright due to the public interest in the usage. It should be 'transformative' and not merely 'derivative'. So, it should serve a different purpose than the original work served for e.g. it could be a parody, a comment, a criticism etc.
2. the nature of the copyrighted work;
· This part refers to a work that is of ‘Public Good’. Hence, it could be something like dissemination of news, scholarly articles, etc. which are ‘factual’ in nature. Fair use does not apply to some works, such as standardized tests, workbooks, and works that are meant to be consumed. Also, the author's rights of first publication may be a factor weighing against fair use if a work is unpublished.
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
· This factor takes into consideration the amount of the original content that is copied. This also considers ‘quality’ and not only ‘quantity’. For example, one cannot copy a part that is claimed to be ‘the heart of the matter’.
4. the effect of the use upon the potential market for or value of the copyrighted work.
· Though, this would be in continuation of the previous point, it deals with it separately. The more the original taken, the more is the negative impact on the market potential of the copyrighted product.
After saying all this, there are a lot of controversies and exceptions in all these points. So, at times, the copied material would lead to increase in positive impact on the market (in case of Radiohead, Dispatch etc.). Now, why don’t the companies go all out against YouTube? Is it because it keeps saying that ‘any material found violating copyrights will be removed’ and if you want to get a clip removed you have to go the whole nine yards to file a case for that video and blah blah blah? Or is it because it is a free publicity source? Or is it because you don’t want it to backfire like it did in case of Napster? Who knows it might just start something completely new, which would be completely out of control. Whatever be the reason, the fact is that YouTube is standing right there smiling and we all know for what reason. It does not validate the ‘purpose’ factor (most of the videos are purely for entertainment and directly copied and for the same purpose) and it does not adhere to the ‘nature’ factor (entertainment videos are in no ‘public good’). But, it does a good deal on ‘portion used’ and ‘market effect’ factors. The portion used is restricted to ten minutes and the quality of a .flv video is for anyone to judge. In fact, this is a ‘disruptive technology’ we all keep talking about all the time. Now, what happens in future is for us to wait and watch but for the time being, let’s just enjoy the bounty of YouTube!
Now, the cover under which this entire copyright infringement game is played is what is widely known as ‘Fair Use’. Based on U.S. Copyright Office, there are four factors (listed in order of importance) which are considered for deciding whether or not a particular use is ‘Fair Use’. These factors are:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
· Transformation is a criterion for deciding on this factor. A certain use of a work does not infringe its holder's copyright due to the public interest in the usage. It should be 'transformative' and not merely 'derivative'. So, it should serve a different purpose than the original work served for e.g. it could be a parody, a comment, a criticism etc.
2. the nature of the copyrighted work;
· This part refers to a work that is of ‘Public Good’. Hence, it could be something like dissemination of news, scholarly articles, etc. which are ‘factual’ in nature. Fair use does not apply to some works, such as standardized tests, workbooks, and works that are meant to be consumed. Also, the author's rights of first publication may be a factor weighing against fair use if a work is unpublished.
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
· This factor takes into consideration the amount of the original content that is copied. This also considers ‘quality’ and not only ‘quantity’. For example, one cannot copy a part that is claimed to be ‘the heart of the matter’.
4. the effect of the use upon the potential market for or value of the copyrighted work.
· Though, this would be in continuation of the previous point, it deals with it separately. The more the original taken, the more is the negative impact on the market potential of the copyrighted product.
After saying all this, there are a lot of controversies and exceptions in all these points. So, at times, the copied material would lead to increase in positive impact on the market (in case of Radiohead, Dispatch etc.). Now, why don’t the companies go all out against YouTube? Is it because it keeps saying that ‘any material found violating copyrights will be removed’ and if you want to get a clip removed you have to go the whole nine yards to file a case for that video and blah blah blah? Or is it because it is a free publicity source? Or is it because you don’t want it to backfire like it did in case of Napster? Who knows it might just start something completely new, which would be completely out of control. Whatever be the reason, the fact is that YouTube is standing right there smiling and we all know for what reason. It does not validate the ‘purpose’ factor (most of the videos are purely for entertainment and directly copied and for the same purpose) and it does not adhere to the ‘nature’ factor (entertainment videos are in no ‘public good’). But, it does a good deal on ‘portion used’ and ‘market effect’ factors. The portion used is restricted to ten minutes and the quality of a .flv video is for anyone to judge. In fact, this is a ‘disruptive technology’ we all keep talking about all the time. Now, what happens in future is for us to wait and watch but for the time being, let’s just enjoy the bounty of YouTube!
