16:04, January 28 168 0 abajournal.com

2019-01-28 16:04:05
‘Fair use’ doctrine should be consistent and protect copyright owners, ABA House says

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The ABA House of Delegates on Monday approved a resolution encouraging courts to take a consistent approach to the "fair use" doctrine, a defense to copyright infringement that permits use of copyrighted works for free without obtaining a license or permission in appropriate circumstances.

Resolution 104 passed overwhelmingly by delegates at the ABA Midyear Meeting in Las Vegas. It asks that repackaging and distribution of all, or nearly all, of a copyrighted work to the copyright owner’s actual or potential market not be deemed a “transformative” act in favor of fair use, regardless of whether the copyrighted material is delivered more efficiently.

The Section of Intellectual Property Law, which sponsored the resolution, also asks that the copyright owner’s actual or potential market include traditional, reasonable and likely-to-be-developed markets, regardless of whether the owner has already entered them.

Section 107 of the Copyright Act outlines four factors that must be considered to determine whether an alleged infringer has made a case for fair use. This includes whether the new work has transformed the original work by adding something new, without substituting for the original work.

Susan B. Montgomery, a member of the Section of Intellectual Property Law from Massachusetts, spoke in favor of the resolution, contending that it addresses an issue that is faced often by both copyright owners and users.

“The need for 104 now is an example of something that is familiar to many of us—the impact of technological innovation on the law and on our lives,” she said. “Over recent decades, technology and digital innovation have brought about many new ways to create and use. In these recent decades, we have also had courts struggling with that.”

Montgomery said there has been an inconsistency in the way the courts have applied the four-factor test, an issue exacerbated by the fact that it has been nearly 25 years since the Supreme Court offered guidance on fair use.

She added that the resolution will not only help address uncertainty in the courts, but alleviate practical difficulties for attorneys and clients considering whether the fair use doctrine applies in their cases.

A motion to postpone Resolution 104 indefinitely was introduced, but was not seconded.

According to a report that accompanies Resolution 104, it may provide the foundation for an ABA amicus curiae brief to a court considering the interpretation and application of the fair use doctrine.