Analysis of the implications of fair use on online creative content

Yvette V. Perez

College

Ramon V. Del Rosario College of Business

Department/Unit

Accountancy

Document Type

Legal Document

Publication Date

5-31-2017

Abstract

Art has many forms, each form bearing a particular purpose while achieving a wide gamut of responses and impressions, depending on the viewer. In that sense, art is diverse and subjective, and these nuances are inevitable consequences of varying sets of struggles and successes.

In the legal realm, art is intellectual property, which is generally understood as an extension of an entity, or an individual’s identity, or to some extent, an identity of a particular time or a particular culture. The process of artistic creation inevitably changes and inevitably follows different schools of thought: art of art’s sake is one thought; art with functional or social value is another.

In the 16th century, men were able to invent a way to regulate copying and reproduction. It was in this time that copyright was born but the term, copyright, was not born until the 1800s. One of the purposes of copyright is for the progress of the arts and sciences, which is expected to balance with the needs of the public. With this expectation came the birth of the term, fair use. This term did not exist until the 19th century.

The problem arises when the balance gets confusing: if conflicting doctrines exist among court decisions regarding the application of a fair and valid use, artists face the danger of illegally appropriating and being illegally appropriated.

With the rapid expansion of technology and social media websites, almost everyone today is an artist and is a valid holder of a copyright. Copyright vests at the moment of creation, and from that time on, the author has absolute dominion over it. Additionally, copyright need not be registered to be protected. Taking a random photograph makes one an author—instant art that is instantly transferred, reproduced, and viewed. This generation seems to highly depend on the internet, and has somehow made reproduction of any work boundless—copying, in a way, becomes limitless. This behaviour has not been thoroughly evaluated against the traditional standards of fair use.

The author of this paper believes that what this generation risks is incentive for creation, which is one of the purposes of copyright. Unregulated copying from the internet may potentially produce lazy-thinking individuals. Problems seem to outrun the solutions: increase in technological development with little to no increase in protection of the arts.

Innovations continue to challenge intellectual property law and its objectives. The legal profession is expected to keep abreast with the developments of society. Fundamental characteristics and elements of art appropriation must be clearly understood, as products of appropriation run the risk of being the subject of copyright infringement.

One way out of this cul-de-sac is to analyse disarraying principles on copyright and fair use. This paper aims to evaluate the traditional system of fair use against the current platforms of social media. Along with this evaluation, this paper aims to recall the initial intent of copyright and evaluate whether the intent is still achieved or achievable in the development of technology.

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Keywords

Copyright; Copyright—Electronic information resources

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