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Fair Use, Fair Dealing: will they survive?

Published online by Cambridge University Press:  06 June 2016

Rina Elster Pantalony
Rina Elster Pantalony*
Affiliation:
1672 10th Avenue, Brooklyn, New York, NY 11215, USA
*
Email: [email protected]
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Extract

A previous article by this author discussed an emerging phenomenon on the Internet. That is, how the law, by denying copyright protection to certain kinds of digital works, may have restricted access to such works instead of liberating them, as was initially intended by the judiciary. This absurd conclusion has resulted from owners whose works are no longer protected by copyright law, who have resorted to restrictive contractual provisions on-line to control access and use of their works. And in turn, owners of such content are still able to generate revenue by charging a subscription fee for the right to gain access to the information contained therein. The result is particularly troubling to end users of digital content. If copyright law is no longer applicable, then what of the Fair Use/Fair Dealing defences available to users of these works? Does this mean that these defences are not applicable either? Are users of such content completely at the mercy of the owners’ terms and conditions of use as dictated by click-on agreements and Rules of Use posted on Web sites? This article discusses the application of Fair Dealing and Fair Use to Internet-based works, by examining the legislative and judicial responses to the ambiguities in their intellectual property protection which new technologies create.

Type
Research Article
Information
Art Libraries Journal , Volume 26 , Issue 4 , 2001 , pp. 18 - 21
Copyright
Copyright © The Art Libraries Society 2001

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References

2. Pantalony, Rina Elster. ‘The carrot v. the stick: can copyright be used to enhance access to cultural heritage resources in the networked environment?’ Art libraries journal vol. 25 no. 4 2000, p.4–11.Google Scholar
3. For example, an end user on the Internet may be faced with a click-on agreement that may not include licensing terms because there are no interests to license. However, the contractual terms include restrictive provisions that dictate how and for what purposes the content on the web site may be used.Google Scholar
4. Keyes, A. A. and Brunet, Claude. Copyright In Canada – proposals for a revision of the law. Consumer and Corporate Affairs Canada, April 1977, p.7–8.Google Scholar
5. Harris, Lesley Ellen. ‘Editorial’. Copyright & new media law newsletter for libraries, archives & museums vol. 5 2001;Google Scholar
Pantalony, Rina Elster. ‘Options for administration of intellectual property rights in Canadian cultural heritage institutions’ in Zorich, Diane. Managing digital assets: options for cultural and educational organizations. Los Angeles; J. Paul Getty Trust Publications, 1999, p.113.Google Scholar
6. Shapiro, Michael. ‘Not control, progress’. (http://www.aam-us.org/des.htm).Google Scholar
7. Supra.Google Scholar
8. Zorich, Diane. Managing digital assets: options for cultural and educational organizations. Los Angeles: J. Paul Getty Trust Publications, 1999.Google Scholar
9. Supra, footnote 6 and see also US Constitution, Art. I, s. 8, cl. 8.Google Scholar
10. Supra, footnote 6.Google Scholar
11. Howell, Robert. Database protection and Canadian laws. September 17, 1999 (http://strategis.ic.gc.ca/SSG/ip01045e.html).Google Scholar
12. Steiner, Christine. ‘The double-edged sword: museums and the Fair Use doctrine’. (http://www.aam-us.org/des.htm).Google Scholar
13. Supra, footnote 5Google Scholar
14. Supra, footnote 12.Google Scholar
15. Sandburg, Brenda. ‘Sequel to cyber copyright fight’. The Recorder April 5, 2000 (http://www.law.com).Google Scholar
16. Supra.Google Scholar
17. Rosenthal, Robert and Dalickas, Gail. ‘Copyrighted material on the Internet’. March 10, 2000 (http://www.law.com).Google Scholar
18. It is interesting to note that practitioners have commented that, traditionally, copyright statutes would have relied upon the Fair Use defence. See Loomis, Tamara. ‘2nd Circuit asked to draw cyberspace copyright boundaries’. April 30, 2001 (http://www.law.com).Google Scholar
19. Supra.Google Scholar
20. Hamblett, Mark. ‘2nd Circuit weighs DVD copying’. May 2, 2001 (http://www.law.com).Google Scholar
21. Kaplan, Carl S. ‘Does an anti-piracy plan quash the First Amendment?’ New York Times on the Web April 27, 2001 (http://www.nytimes.com).Google Scholar
22. Blair, Jeffrey. ‘Professor opts against presentation on foiling music security’. April 27, 2001 (http://www.law.com).Google Scholar
23. Supra, footnote 17; 77 F. Supp. 2d 1116.Google Scholar
24. Supra.Google Scholar
25. Weingart, Jeffrey and Richman, Monica B. Richman. ‘Copyright law: Fair Use and the Internet’. National law journal, September 29, 2000 (http://www.law.com).Google Scholar
26. 92 F. Supp. 2d 349 (SDNY).Google Scholar
27. Supra, footnote 17.Google Scholar
28. At its peak, Napster had over 20 million subscribers.Google Scholar