Fair Use in Patent Applications, Jamaican Copyright Laws, Linking and Framing

Copyright Newsletter

Snippets from issue 2, 2013 volume of The Copyright & New Media Law Newsletter:

On 16 May 2013 and the first hearing in this process— “A Case Study for Consensus Building: The Copyright Principles Project”— Chairman Goodlatte noted, in his opening statement, his wish that the entire process be characterized by civil discourse between those who hold diverse views rather than by rhetoric and “sharp elbows.” Chairman Goodlatte also noted that the broad perspective has been an aspect missing in the previous decades-long copyright work and discussion. In his view, the process must take the necessary time and be of sufficient scope to review, understand, and address important fundamental copyright issues and their connection to the country’s social and economic activities prior to addressing specific issues.

– Editorial by Lesley Ellen Harris

Fair Use in Patent Applications:

Perhaps because of the partial retreat by the publishers insofar as their claims are concerned, the Patent Office is now advancing the argument, in motions for summary judgment, that any copying or distribution that is “necessary and incidental” to the filing and prosecution of a U.S. patent application should be protected as a fair use. In its motions, the Patent Office analyses each of the four statutory factors, arguing that:

(1)  the use being made by the applicants is not commercial and is in any event transformative,

(2)  the works at issue are factual and already published and thus exposed to broader public use,

(3)  although the applicants typically copy the whole of each article, they copy no more than is necessary for a beneficial governmental purpose, and

(4)  the copies made by applicants are not market substitutes for the original articles and requiring the applicants to track down all relevant copyright holders would be unduly burdensome.

Finally, the Patent Office argues that facilitating full disclosure of known prior art will lead to high-quality patents and attendant public benefit.

Will the Patent Office’s “necessary and incidental” analysis eventually rise to the prominence in the fair use discourse that has heretofore been enjoyed by the discussion of “transformative” uses?  Only time, and three district courts, will tell.

– Fair Use in Patent Applications by Kyle Fath and Steve Gillen

Jamaican Copyright Laws:

Nestled in the heart of the Caribbean Sea, the 4,244 square mile island of Jamaica is home to a wealth of culture that has gained the little dot on the globe international recognition.  Showcasing its ingenuity and creativity, Jamaica has opened the ears and hearts of its international counterparts through the production and export of original musical genres such as Ska, Reggae, and Dancehall and internationally acclaimed artists such as Shabba Ranks, Shaggy, Sean Paul, Jimmy Cliff, and the legendary Bob Marley.  Though big in musical voice and impact, Jamaica is but a small developing country.  One may wonder how the copyright laws on this little speck on the globe, with a population of just about 2.8 million, measure up with the rest of the world.  How does Jamaica’s copyright regime compare with that of the more developed nations?  Do our laws sufficiently protect the creative minds we produce?  Do we share the same ideas and concepts in the protection of copyright?  What are the prevailing attitudes towards copyright protection and enforcement?

– Jamaica: A Developing Country in the World of Copyright by Kellye-Rae Fisher

Linking, Framing + Copyright:

Both linking and framing enable a website owner to direct users to third party content.  Given how fundamental these concepts are to the operation of the internet, it seems illogical and detrimental that they could be illegal.  Yet there have been a plethora of cases, in a number of different jurisdictions, that have considered whether the concepts of linking and framing are illegal.

Rightsholders have relied on two exclusive rights provided for by copyright law to argue that linking and framing infringe copyright: the right to make copies and the right to perform a work publicly (in the United States) or to communicate a work to the public (in Canada, the UK, and EU).  Contributory infringement is also relevant.

These rights (to make copies and perform or communicate a work publicly) in relation to linking and framing have been addressed by case law in a haphazard manner— meaning that the law remains unclear in many jurisdictions.  This article reviews the most recent cases in the U.S., Canada, the UK, and the EU before concluding that copyright law is in want of a thorough review.

– Linking and Framing: Fundamental Legal Issues by Iona Silverman

Previous contents of The Copyright & New Media Law Newsletter.

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