The Fair Use code provides courts with a legal basis to override antiquated copyright laws as so they align with the public’s interest, amidst the development of new technology. Unfortunately, the courts have interpreted Fair Use in such a manner that it has not been extended to provide the same protection to music it offers other intellectual works. Fair Use provides four criteria to determine whether or not the unauthorized use of copyrighted work constitutes fair use. The first two criterion of Fair Use would not support music sampling. But the third guidance tends to favor derivative works which only employ a small portion of the original copyrighted work. This is further reflected in the de minimus standard, which should support music sampling in some instances, especially those in which music sampling is so minimal the original copyrighted work is unrecognizable. The third criterion directly counters a number of court rulings, which insist that it is within the sole right of the copyright owner to reproduce a work. The fourth and final determination set forth by Fair Use, determines the impact a work bears on the potential market for an existing copyrighted work. If a work stood to replace copyrighted material, it would negatively impact the value of that material. As often is the case in music sampling, copyrighted work is only profitable through its use in derivative works, which automatically constitutes an effect on its potential market. I believe the fourth factor could be interpreted in a manner that would sanction music sampling, through indirect profit. For instance, music sampling revived the career of George Clinton, although Clinton never received any royalty payments.
The fair use doctrine sets forth guidelines for determining whether a particular use of a copyrighted material is fair use. The four factors of fair use are analyzed when determining a fair use, including the purpose and character of the use, as well as the effect of the use upon the potential market or value of the copyrighted work.
RealDVD creates a single backup copy for owners of DVDs. While this should not have any effect of DVD sales, it does remove the market for digital downloads offered with DVD purchases for a nominal price.
Chapter 1 of the Copyright Law deals with the subject matter and scope of copyright. Specifically, Section 102 addresses what constitutes copyrightable works. In general, copyright law protects "original works of authorship fixed in a tangible medium of expression." This includes, for example, literary works, sound recordings, dramatic works, and others. Section 105 addresses United States Government works and their ineligibility for copyright protection. Simply stated, any work produced by the government cannot be protected by copyright law. Finally, Section 107 discusses fair use as a limit on exclusive rights. The fair use doctrine states that copying "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." To determine whether such copying is actually fair use, four factors must be analyzed:
1. The purpose and character of the use (commercial or nonprofit education purposes?)
2. The nature of the copyrighted work.
3. The amount and substantiality of the portion used relative to the whole copyrighted work.
4. The effect of the use on the market for the copyrighted work.
Each of these sections is pertinent to the role of copyright in serving the public interest. First, the fact that copyright law protects original works of authorship suggests that, besides fair use exceptions, any work that meets the criteria for protection deserves such protection regardless of its impact on the public interest. However, Section 105 acknowledges that government works do not get copyright protection. The language does not specify the reason behind such a particularity, but it can be inferred that governmental works are of public interest, and the people deserve access to them. This section of United States Copyright Law suggests that copyright is intended to serve the public interest and although it should protect authors' originality to encourage progress and development, those concerns are trumped by concerns of the public interest when it comes to state and government affairs. Finally, the far use doctrine specifically says that news reporting is an exemption of fair use, provided that the instance is analyzed in terms of the four factors and still deemed to be exempted from copyright infringment. News reports tend to transform the original work for the purpose of delivering information to the public, a non commercial purpose, and they most often only use enough footage, language, etc. to properly convey such information. Being of a different purpose, reports do not tend to effect the market for the copyrighted work. Thus, the use of copyrighted works for the purpose of reporting news serves the public interest and is acknowledged by copyright law to be exempt. It can also be argued that campaigns and political speech fall under the category of news reporting since such speech relays information to the public for the purpose of democratically participating in government and state affairs. It seems that the public interest is intrinsically incorporated into copyright law, thus supporting the side of the argument that holds that copyright helps the public interest.