The Issue of Copyright and the Fair Use Rights

It is believed by many that copyright laws are counterproductive and it can hinder the creativity. However, I personally disagree with the idea and believe that the protection as intellectual property is significant to a well-functioning society as it inspires and encourages the production of new ideas and further works. The logic behind the expansion of copyright is straightforward. The television show, movie, newspaper or the music that we listen to, they are all copyrighted. Copyright spread through our lives and still has an impact on our lives, comparably few people, including the lawyers, have sufficient understanding of what copyright is. An interesting point proved by psychologists is that a decrease in creative freedom could yield a better increase in creative production among consumers. Basically, when the human mind is forced to look around their limits and obstacles, it becomes less likely to return to previous solutions. The theory behind this is that human imagination is benefited from bringing a little resistance to the path of least resistance, creativity and freedom often work at cross purposes. The significance of the creative expression in contemporary democratic society cannot be underestimated.

Copyright and control have been weakened as the digital age has profoundly changed the context in which creative works are made or sold and disseminated by the use of technology and the Internet. One of the purposes of copyright is to ensure that creative producers can be guaranteed some income from their output and sales or distribution of their hard work. Without the existence of copyright, the creative artists could be cut off from the income related to the copyright that is earned from the creative activities that they generate. Taking this aspect into account, the absence of copyright would mean the absence of the income for many creative artists, whose only source might be their copyrighted creations. This can imply that the time previously dedicated by the artists in the creation of new works will now be used in non-creative employment. For instance, J.K rowling achieved her success of the series Harry Potter which were made into novels and then film series and were distributed by Warner bros consisting of eight fantasy films.

According to the 2017 Forbes list, she is one of the highest-paid authors who received $95 million with her work. The fact that she achieved this success through inspiration and thus, she was not sentenced according to copyright laws. The question here is, is this inspiration unethical?. "The Harry Potter Lexicon" created by Steven Vander Ark, is a website that collects and organizes all facts of the Harry Potter series and this was highly admired by J.K Rowling stating that this was extraordinarily comprehensive. But even after this, Rowling chose to reject the publishing of Steven’s collection as a book with the title ‘The Harry Potter Lexicon’. Rowling stated in one of her interviews saying "The book violated my copyright and constitutes wholesale theft of 17years of my hard work". This was an inspiration from the Harry Potter series, but using the company’s work for monetary and commercial use was unethical. Protecting the copyrighted work in the digital world is the greatest challenge faced by copyright law because the copyright and its infringements have no territorial boundaries.

What we can interpret from this example is that the series ‘Harry Potter’ shows us that intellectual’s work can be an inspiration to its audience and consumers as long as they are not stealing or pirating the work of others intellectual work. Copyrights are responsible for protecting the intellectual creations from stealing and piracy, but on the other hand they should also not be allowed to become an argument stating that large companies use copyright as an excuse for their own profit.

The history of copyright law in the United States is one of the expansions. In 1790, copyright originally provided the authors with the exclusive right to vend books and maps for 14 years and another 14 years of protection available to them through renewal. At present, copyright can protect all tangible medium of expression and original expressions that includes video games, books, movies and many more. The authors are granted protection and an exclusive right to control almost all the uses of their original idea and expression, even if it is creating a new work based on the original work. Currently, this protection of copyright lasts for the life of the author plus an additional seventy years. The ideology behind copyright is pretty simple, the more protection the authors are provided, the greater the reward; the more the reward, the greater the incentive for creators to create new work.

The most crucial point of the rights of the users is that of fair use. The idea of ‘Fair Use’ in the Copyright Act serves the specific kind of uses of copyrighted works and they are not an infringement of copyright, despite the fact that the use of the work may involve copying, performing or even displaying the copyrighted work. If the work is a type of fair use, the creator of the work has no right to claim payment of a fee for using the work and engaging in any type of use of the work.

This Act mainly lists four of the non-exclusive factors that need to be considered by the courts to determine whether or not it is a fair use of work and not an infringement of copyright. The first one is the purpose of the use, to determine whether it is used for commercial purpose or for a non-profit educational purpose. The second one is related to the nature of the copyright. The third one is about the amount of work that is being used from the original work and the last one is the effect of the copyrighted work in the potential market. For instance-Mr. Webster’s definition of "parody" – "a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule or a feeble or ridiculous imitation." Parodies of songs usually by its nature closely resembles the original work enough for the people to recognise the song, but not to be claimed as an infringement.

Weird Al has created around more than 150 parodies and original songs of his own. He gets permission from each artist that he chooses to make parodies. Even though he takes a sufficient part from the original work to produce a parody, the Supreme court of the U.S has deemed that parodies, as long as they don’t take a major part of the work and it is sufficiently transformative and leads to the production to a whole new work, then the correct analysis would determine that it isn’t copyright infringement and it is completely acceptable under the doctrine of Fair Use. Australia doesn’t have this constitutional mandate, but Australian courts have expressed that US copyright law is consistent with the nature and purpose of copyright law in Australia. Copyright owners frequently invoke the ‘property rights’ argument. The NIEP theory supports the idea of propertarian ideology that treats intellectual property as though it was real property.

The origin of copyright law was the Statute of Anne, enacted in England in 1710. It introduced the concept that the creator of the work is the owner of its copyright and it laid out fixed terms of protection. This Act necessitated the deposit of the copyright works to a specific copyright library and registered in the Stationer’ Hall and that there was no automatic protection for unpublished works. The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886 (Wikipedia). Following the adoption of the treaty by the US in 1998, almost all major countries are covered by this Convention. Till this day, the Berne Convention continues to provide the basis for international copyright law. Apart from the benefits of the Berne Convention for the artists and creators of original works, the entire system of safeguarding the unpublished works remains collapsed internationally. Some states, within their own jurisdiction offers optional registration services, meanwhile some states does not provide any kind of registration at all. This turns out to be problematic because without registration, it can be difficult to judge who is the rightful owner of a copyrighted work.

Art Roger’s photograph in 1980 (Puppies) and Jeff Koons sculpture in 1998 (String of puppies) is one of the most popular examples of copyright infringement. Roger’s copyrighted photograph was imitated by Jeff Koon without his permission and earned him several thousand dollars by using it as one of his own sculpture works. This case was taken into consideration in the court and according to Jeff, he claims that the creation of the sculptures is considered a fair use as well as a new invention because Roger would not come up with the idea of making sculptures. Considering the market potential of the photograph, court disagreed with the claim placed by Jeff Koons. Original works are meant to be an inspiration to the new creators and Koon was supposed to take inspiration from Roger’s art work and not focus on the details and legally Jeff should have asked for Roger’s permission before using his copyrighted work. The decision taken by the court regarding this copyright case is considered different, especially due to the development of the digital era. The Digital Millennium Copyright Act has made it illegal to avoid technological devices and justified it as a means to prohibit unauthorized copying.

The issue of copyright cannot be underestimated and is controversial indeed. In conclusion, dissenters will draw on what they despise in order to criticise it. Every individual has their own right to be proud of their creation and work and wants to be known for their hard work and dedication. In the first case discussed about Harry Potter and J.K Rowling’s work proved that an intellectuals work can be taken as inspiration for others but only to create and generate new work as long as it is admired and not stolen and pirated. In other words, limit is the key to not being filed by a lawsuit, which means the minimal use of the original work in the creation of an inspired work. The second case discussed, shows that the copyright act can also interfere in commercial and financially profit cases.