The trial ended on April 16, 2008 with a main issue for Judge Patterson’s deliberation – whether the defendant’s can claim fair use for having used Rowling’s copyrighted material in Vander Ark’s Lexicon.
Justice Holmes in White-Smith Music Publishing Co. v Appollo Co provided a classic definition which included the following significant elements of copyright –An abstract expression, which possesses a right to exclude others from interference. Under Article I Clause 8 of the constitution, the justification of copyright is that it promotes learning and culture for public welfare, by the grant of exclusive rights to the authors, for a limited time. However, such a monopoly needs to have a positive effect by allowing the creation of other competitive works. Thus, the question is whether the Lexicon is a competitive work protected by the Fair Use doctrine or is it ‘wholesale copying’ unworthy of the protective status.
Section 107 of the Copyright Act, 1976 provides the four factors of fair use as follows:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes.
2. The nature of the copyrighted work
3. The amount and substantially of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
Though in the closing arguments, stress was laid on the chronology of factors as being all important, Sec. 107 of the Copyright Act gives no indication how each of the factors should be weighed.
Justice Holmes in White-Smith Music Publishing Co. v Appollo Co provided a classic definition which included the following significant elements of copyright –An abstract expression, which possesses a right to exclude others from interference. Under Article I Clause 8 of the constitution, the justification of copyright is that it promotes learning and culture for public welfare, by the grant of exclusive rights to the authors, for a limited time. However, such a monopoly needs to have a positive effect by allowing the creation of other competitive works. Thus, the question is whether the Lexicon is a competitive work protected by the Fair Use doctrine or is it ‘wholesale copying’ unworthy of the protective status.
Section 107 of the Copyright Act, 1976 provides the four factors of fair use as follows:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes.
2. The nature of the copyrighted work
3. The amount and substantially of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
Though in the closing arguments, stress was laid on the chronology of factors as being all important, Sec. 107 of the Copyright Act gives no indication how each of the factors should be weighed.
Some interesting issues I will explore are:
- is the Lexicon transformative and thus useful, to entitle it protection
- could the Lexicon have embraced brevity and still supplied the same level of usefulness
- what is going to be the impact of finding fair use in this case on authors and their permitting use by fan sites in the future.
Stay tuned for more.
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