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Fair Use in a Digital Age: A Closer Look at the Harry Potter Lexicon Regina Forker University of Connecticut School of Law May 22, 2008.

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Presentation on theme: "Fair Use in a Digital Age: A Closer Look at the Harry Potter Lexicon Regina Forker University of Connecticut School of Law May 22, 2008."— Presentation transcript:

1 Fair Use in a Digital Age: A Closer Look at the Harry Potter Lexicon Regina Forker University of Connecticut School of Law May 22, 2008

2 Overview Reference Works Reference Works What are they? What are they? The Internets Impact The Internets Impact What problems do they pose? What problems do they pose? U.S. IP Origins U.S. IP Origins The U.S. Bundle of Rights The U.S. Bundle of Rights Fair Use Overview Fair Use Overview What is Fair Use? What is Fair Use? Why is it Important? Why is it Important? How is Fair Use Determined? How is Fair Use Determined? Background of the Lexicon Lawsuit Background of the Lexicon Lawsuit

3 Overview Judicial Fair Use Interpretations Judicial Fair Use Interpretations Collectors Guides Collectors Guides Trivia Books Trivia Books Online Movie Previews Online Movie Previews Public Commentary on the Lexicon Public Commentary on the Lexicon Comparative Fair Use Comparative Fair Use How would the Lexicon fare in the U.K.? How would the Lexicon fare in the U.K.? The E.U.? The E.U.? Predictions and Conclusion Predictions and Conclusion

4 Reference Works What are they? Guides, summaries, compendiums, handbooks, dictionaries Guides, summaries, compendiums, handbooks, dictionaries Compilation of information for the purpose of easy reference Compilation of information for the purpose of easy reference US copyright protection is afforded to compilations US copyright protection is afforded to compilations 17 USC § 101 Compilation: a work formed by the collection, assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship 17 USC § 101 Compilation: a work formed by the collection, assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship Can focus on anything from popular movies, books, authors, genres to legal, medical, and historical subjects Can focus on anything from popular movies, books, authors, genres to legal, medical, and historical subjects The sale of such guides is big business The sale of such guides is big business

5 Reference Works Literally thousands of such works are available The Copyright Guide: A Friendly Handbook for Protecting and Profiting from Copyrights The Copyright Guide: A Friendly Handbook for Protecting and Profiting from Copyrights Everyman's Guide to the Mysteries of Agatha Christie Everyman's Guide to the Mysteries of Agatha Christie Star Wars, Episode I What's What: A Pocket Guide to The Phantom Menace Star Wars, Episode I What's What: A Pocket Guide to The Phantom Menace The Lovecraft Lexicon: A Reader's Guide to Persons, Places and Things in the Tales of H.P. Lovecraft The Lovecraft Lexicon: A Reader's Guide to Persons, Places and Things in the Tales of H.P. Lovecraft The Rough Guide to Frank Sinatra The Rough Guide to Frank Sinatra The Regions of Germany: A Reference Guide to History and Culture The Regions of Germany: A Reference Guide to History and Culture It's Not Too Late To Learn Computers: An Easy Reference Guide It's Not Too Late To Learn Computers: An Easy Reference Guide Leonard Maltin's Movie Guide Leonard Maltin's Movie Guide The Complete Idiot's Guide to the World of Narnia The Complete Idiot's Guide to the World of Narnia Chaucer's Pilgrims: An Historical Guide to the Pilgrims in The Canterbury Tales Chaucer's Pilgrims: An Historical Guide to the Pilgrims in The Canterbury Tales

6 Reference Works The Internets Impact on Reference Works Anyone can publish online Anyone can publish online It seems the internet has done nothing but increased the availability of such guides It seems the internet has done nothing but increased the availability of such guides Allows smaller publishers to sell books online Allows smaller publishers to sell books online Allows individuals to create guides and post them on websites Allows individuals to create guides and post them on websites Without a publisher involved, mistakes may be more prevalent; more boundaries may be inadvertently crossed Without a publisher involved, mistakes may be more prevalent; more boundaries may be inadvertently crossed

7 Reference Works What Problems Do They Pose? Line between reference works and unprotectable derivative works is blurry Line between reference works and unprotectable derivative works is blurry Do not want the rights of the copyright holder to be stifled or usurped by creators of reference works Do not want the rights of the copyright holder to be stifled or usurped by creators of reference works BUT we must allow for the fair use of copyrighted works BUT we must allow for the fair use of copyrighted works Do not want to stifle creativity or promote monopolies Do not want to stifle creativity or promote monopolies

8 U.S. Intellectual Property Origins IP rights officially recognized in the U.S. as federal law when the Constitution was adopted in 1787 IP rights officially recognized in the U.S. as federal law when the Constitution was adopted in of the 13 colonies already had copyright statutes 12 of the 13 colonies already had copyright statutes Article 1 Section 8 of the Constitution empowers Congress to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Article 1 Section 8 of the Constitution empowers Congress to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. As of the Copyright Act of 1976, under 17 U.S.C. §106, copyright holders are granted a bundle of exclusive IP rights As of the Copyright Act of 1976, under 17 U.S.C. §106, copyright holders are granted a bundle of exclusive IP rights Includes the right to prepare derivative works Includes the right to prepare derivative works

9 Note on Derivative Works 17 USC § 101 Defines Derivative Work 17 USC § 101 Defines Derivative Work A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work. A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work. Are reference guides actually derivative works? Are reference guides actually derivative works?

10 Fair Use Overview What is Fair Use? 17 USC § 107 – codified in USC § 107 – codified in 1976 The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords…, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords…, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

11 Fair Use Overview Cont. Why is Fair Use Important? The concept of Fair Use allows others to use copyrighted works The concept of Fair Use allows others to use copyrighted works Falls in line with purpose of Article 1 Section 8 to promote the Progress of Science and useful Arts Falls in line with purpose of Article 1 Section 8 to promote the Progress of Science and useful Arts Fair use has been described as a rule of reason balancing an authors right to compensation against the publics interest in the widest possible dissemination of ideas and information Fair use has been described as a rule of reason balancing an authors right to compensation against the publics interest in the widest possible dissemination of ideas and information Without fair use, authors and creators have a virtual monopoly over their works Without fair use, authors and creators have a virtual monopoly over their works

12 Fair Use Overview Cont. Folsom v. Marsh, 9 F.Cas. 342 (1841) Beginnings of the Fair Use common law doctrine Beginnings of the Fair Use common law doctrine The Reverend Charles Upham, the author of a 2-volume Life of Washington, was found to have infringed the copyright of The Writings of George Washington written by Jared Sparks. The Reverend Charles Upham, the author of a 2-volume Life of Washington, was found to have infringed the copyright of The Writings of George Washington written by Jared Sparks. Upham had copied 255 pages of Washingtons letters that were contained in Sparks work. Upham had copied 255 pages of Washingtons letters that were contained in Sparks work. No one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. No one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. It is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy. It is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.

13 Background: The Harry Potter Lexicon Harry Potter is the main character in a widely popular book series about a young orphan boy who discovers that he is a famous wizard Harry Potter is the main character in a widely popular book series about a young orphan boy who discovers that he is a famous wizard Written by British author, J.K. Rowling Written by British author, J.K. Rowling She has published seven Harry Potter books She has published seven Harry Potter books Four movies have been released by Warner Brothers; the rest are in production Four movies have been released by Warner Brothers; the rest are in production Warner is a licensee of Rowling Warner is a licensee of Rowling Dubbed by Forbes as the Billion Dollar Brand Dubbed by Forbes as the Billion Dollar Brand

14 Background: The Harry Potter Lexicon Countless spin-off publications have been published, with and without permission Ultimate Unofficial Guide to the Mysteries of Harry Potter Ultimate Unofficial Guide to the Mysteries of Harry Potter The Complete Idiot's Guide to the World of Harry The Complete Idiot's Guide to the World of Harry The Book of Harry Potter Trifles, Trivias, and Particularities The Book of Harry Potter Trifles, Trivias, and Particularities Fact, Fiction, And Folklore In Harry Potter's World: An Unofficial Guide Fact, Fiction, And Folklore In Harry Potter's World: An Unofficial Guide A The Unauthorized Harry Potter: Everything You Ever Wanted to Know About the Harry Potter Series A The Unauthorized Harry Potter: Everything You Ever Wanted to Know About the Harry Potter Series J.K. Rowling's Harry Potter Novels: A Reader's Guide – Unauthorized J.K. Rowling's Harry Potter Novels: A Reader's Guide – Unauthorized The Pottersaurus: 1,500 Words Harry Potter Readers Need to Know The Pottersaurus: 1,500 Words Harry Potter Readers Need to Know

15 Background: The Harry Potter Lexicon Countless websites revolving around the world of Harry Potter have been created, both sanctioned and not Countless websites revolving around the world of Harry Potter have been created, both sanctioned and not mugglenet.com mugglenet.com

16 Background: The Harry Potter Lexicon The Harry Potter Lexicon In July 2000, Steve Vander Ark started the Harry Potter Lexicon website In July 2000, Steve Vander Ark started the Harry Potter Lexicon website The most amazing and complete reference anywhere to the world of Harry Potter. The most amazing and complete reference anywhere to the world of Harry Potter. Includes things like Includes things like Encyclopedia of Potions Encyclopedia of Potions Visitors Guide to Hogwarts Visitors Guide to Hogwarts Readers Guides Readers Guides Encyclopedia of Spells Encyclopedia of Spells In June 2004, it won J.K. Rowlings Fan Site Award In June 2004, it won J.K. Rowlings Fan Site Award

17 Background: The Harry Potter Lexicon Rowling was openly supportive of the Lexicon and posted about it on her own website: Rowling was openly supportive of the Lexicon and posted about it on her own website: This is such a great site that I have been known to sneak into an internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing). A website for the dangerously obsessive; my natural home. This is such a great site that I have been known to sneak into an internet café while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing). A website for the dangerously obsessive; my natural home.

18 Background: The Harry Potter Lexicon Up until the 7 th Harry Potter book was published, the Lexicon remained a website Up until the 7 th Harry Potter book was published, the Lexicon remained a website After publication, RDR Books, a small independent publisher, contacted Vander Ark about selling the Lexicon in book form After publication, RDR Books, a small independent publisher, contacted Vander Ark about selling the Lexicon in book form Vander Ark eventually agreed and the publication process began Vander Ark eventually agreed and the publication process began They assured him it was a legal endeavor They assured him it was a legal endeavor Included indemnity clause in contract whereby they would represent him and pay damages in the event a suit was filed Included indemnity clause in contract whereby they would represent him and pay damages in the event a suit was filed

19 Background: The Harry Potter Lexicon No contact was initiated with Rowling or Warner before or during publication No contact was initiated with Rowling or Warner before or during publication Rowlings agent saw an online advertisement for the Lexicon in September 2007 which indicated it was to be released in October 2007 Rowlings agent saw an online advertisement for the Lexicon in September 2007 which indicated it was to be released in October 2007 Warner and Rowling contacted RDR and demanded publication be halted; no conclusive response was received and they filed a Complaint Warner and Rowling contacted RDR and demanded publication be halted; no conclusive response was received and they filed a Complaint

20 Background: The Harry Potter Lexicon The Complaint Filed October 31, 2007 Filed October 31, 2007 Alleged copyright infringement, trademark infringement, unfair competition and false designation of origin, false advertising, deceptive trade practices, and unfair competition under New York common law Alleged copyright infringement, trademark infringement, unfair competition and false designation of origin, false advertising, deceptive trade practices, and unfair competition under New York common law Sought a declaratory judgment regarding the copyright infringement, an injunction restraining the manufacture, distribution, marketing, advertisement, promotion or solicitation of the book, as well as various damages including a profit accounting and costs of the suit Sought a declaratory judgment regarding the copyright infringement, an injunction restraining the manufacture, distribution, marketing, advertisement, promotion or solicitation of the book, as well as various damages including a profit accounting and costs of the suit

21 Background: The Harry Potter Lexicon The Complaint There is a significant difference between giving the innumerable Harry Potter fan sites latitude to discuss the Harry Potter works in the context of free-of- charge, ephemeral websites and allowing a single fan site owner and his publisher to commercially exploit the Harry Potter Books in contravention of Ms. Rowlings wishes and rights and to the detriment of other Harry Potter fan sites. There is a significant difference between giving the innumerable Harry Potter fan sites latitude to discuss the Harry Potter works in the context of free-of- charge, ephemeral websites and allowing a single fan site owner and his publisher to commercially exploit the Harry Potter Books in contravention of Ms. Rowlings wishes and rights and to the detriment of other Harry Potter fan sites. Rowling has said she plans to write an authoritative reference guide and donate the proceeds to charity Rowling has said she plans to write an authoritative reference guide and donate the proceeds to charity

22 Background: The Harry Potter Lexicon RDR Books has gotten free legal help from Stanford University Law School's Fair Use Project RDR Books has gotten free legal help from Stanford University Law School's Fair Use Project Bench trial began in New York on April 14 and lased three days Bench trial began in New York on April 14 and lased three days Ruling is expected any day Ruling is expected any day

23 Judicial Fair Use Interpretations Ty, Inc. v. Publications International, 292 F.3d 512 (7th Cir. 2002) Ty, the manufacturer of the once-popular Beanie Baby toys, filed suit against Publications International Limited (PIL) Ty, the manufacturer of the once-popular Beanie Baby toys, filed suit against Publications International Limited (PIL) PIL had published several books about Beanie Babies, including For the Love of Beanie Babies and Beanie Babies Collectors Guide PIL had published several books about Beanie Babies, including For the Love of Beanie Babies and Beanie Babies Collectors Guide The 7 th Circuit reversed the lower courts summary judgment in favor of Ty The 7 th Circuit reversed the lower courts summary judgment in favor of Ty

24 Judicial Fair Use Interpretations Ty, Inc. v. Publications International Cont. Needed more information to determine whether the books were collectors guides, which would constitute fair use, or whether they were unauthorized derivative works Needed more information to determine whether the books were collectors guides, which would constitute fair use, or whether they were unauthorized derivative works Copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, is not fair use. Copying that is complementary to the copyrighted work (in the sense that nails are complements of hammers) is fair use, but copying that is a substitute for the copyrighted work (in the sense that nails are substitutes for pegs or screws), or for derivative works from the copyrighted work, is not fair use. When discussing guides in reference to derivative works, the court noted that guides dont recast, transform, or adapt the things to which they are guides. A guide to Parisian restaurants is not a recasting, transforming, or adapting of Parisian restaurants. When discussing guides in reference to derivative works, the court noted that guides dont recast, transform, or adapt the things to which they are guides. A guide to Parisian restaurants is not a recasting, transforming, or adapting of Parisian restaurants.

25 Judicial Fair Use Interpretations Ty and The Lexicon Should the guides discussed in Ty be analogized to the Lexicon? Should the guides discussed in Ty be analogized to the Lexicon? It seems that a reference guide such as the Lexicon would not be considered a substitute for the copyrighted Harry Potter book It seems that a reference guide such as the Lexicon would not be considered a substitute for the copyrighted Harry Potter book Instead, it seems more to complement the books in that it explains, catalogues and parses out the contents of the books, rather than replaces it Instead, it seems more to complement the books in that it explains, catalogues and parses out the contents of the books, rather than replaces it Would the Lexicon ever be considered a replacement for the Harry Potter books? Would the Lexicon ever be considered a replacement for the Harry Potter books?

26 Judicial Fair Use Interpretations Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132, (2d Cir. 1998) Castle Rock sued Carol Publishing for publication of The Seinfeld Aptitude Test, a trivia book about the popular TV show, Seinfeld Castle Rock sued Carol Publishing for publication of The Seinfeld Aptitude Test, a trivia book about the popular TV show, Seinfeld 2 nd Circuit said: 2 nd Circuit said: By developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work, a copyright owner plainly cannot prevent others from entering those fair use markets. By developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work, a copyright owner plainly cannot prevent others from entering those fair use markets.

27 Judicial Fair Use Interpretations Castle Rock Entertainment, Inc. cont. Surprising decision Surprising decision Court concluded that The SAT unlawfully copied from Seinfeld and that its copying did not constitute fair use and thus was an actionable infringement Court concluded that The SAT unlawfully copied from Seinfeld and that its copying did not constitute fair use and thus was an actionable infringement Later, the Ty court had this to say about the holding: Later, the Ty court had this to say about the holding: The holding [in Castle Rock] seems to rest in part, and very dubiously we must say, on the court's judgment that the book was frivolous…. But the fair-use doctrine is not intended to set up the courts as judges of the quality of expressive works. The holding [in Castle Rock] seems to rest in part, and very dubiously we must say, on the court's judgment that the book was frivolous…. But the fair-use doctrine is not intended to set up the courts as judges of the quality of expressive works.

28 Judicial Fair Use Interpretations Castle Rock and The Lexicon Fair use determinations are not easily predicted Fair use determinations are not easily predicted Warner and Rowling claim that Rowling has always planned to publish companion books to Harry Potter and that the Lexicon precludes Rowlings ability to publish such a work Warner and Rowling claim that Rowling has always planned to publish companion books to Harry Potter and that the Lexicon precludes Rowlings ability to publish such a work Under Castle Rock, such an argument lacks merit Under Castle Rock, such an argument lacks merit

29 Judicial Fair Use Interpretations Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 192 F. Supp. 2d 321 (2002) Video Pipeline (VP) contracted with Disney to format previews and video clips for use in video retail stores Video Pipeline (VP) contracted with Disney to format previews and video clips for use in video retail stores Disney argued that VPs digitization and internet streaming of the in-store trailers and clip previews on VPs website and the copying of Disney trailers constituted copyright infringement Disney argued that VPs digitization and internet streaming of the in-store trailers and clip previews on VPs website and the copying of Disney trailers constituted copyright infringement

30 Judicial Fair Use Interpretations Video Pipeline, Inc. cont. A fair use defense is favored if the copying complements the use of the copyrighted works and serves a transformative purpose, that is, a purpose different than that of the copyright owner. A fair use defense is favored if the copying complements the use of the copyrighted works and serves a transformative purpose, that is, a purpose different than that of the copyright owner. Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied. Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.

31 Judicial Fair Use Interpretations Video Pipeline, Inc. cont. Like the collectors guide in Ty, the clip previews and trailers in this case are informational, as they provide segments of the actual copyrighted movie to inform customers of the movie's story or theme. Unlike Ty, however, the clip previews and trailers, although accumulated on a database, do not add additional or critical evaluative information to the copyrighted works, as they are only truncated versions of the movies, with choice scenes selected and put together. Although the clip previews and trailers in this case are not clear substitutes for the copyrighted works, they do not complement the motion picture rentals or sales by adding information similar to a collectors guide nor do they represent an entirely different product line that consumers of the movie may also be interested in purchasing, as in Ty. Like the collectors guide in Ty, the clip previews and trailers in this case are informational, as they provide segments of the actual copyrighted movie to inform customers of the movie's story or theme. Unlike Ty, however, the clip previews and trailers, although accumulated on a database, do not add additional or critical evaluative information to the copyrighted works, as they are only truncated versions of the movies, with choice scenes selected and put together. Although the clip previews and trailers in this case are not clear substitutes for the copyrighted works, they do not complement the motion picture rentals or sales by adding information similar to a collectors guide nor do they represent an entirely different product line that consumers of the movie may also be interested in purchasing, as in Ty.

32 Judicial Fair Use Interpretations Video Pipeline, Inc. and The Lexicon It could be argued that the entries that make up the Lexicon inform customers of the…story or theme, and are thus analogous to the clips formatted together to form a preview, which the court held to be derivative works It could be argued that the entries that make up the Lexicon inform customers of the…story or theme, and are thus analogous to the clips formatted together to form a preview, which the court held to be derivative works But the Lexicon arguably serves a transformative purpose other than that of the Harry Potter books themselves But the Lexicon arguably serves a transformative purpose other than that of the Harry Potter books themselves It could also be argued that the Lexicon complements the books and is thus more analogous to the protected collectors guides It could also be argued that the Lexicon complements the books and is thus more analogous to the protected collectors guides

33 Public Commentary Popular consensus among scholars is that Rowling has a weak case, if any, and that the Lexicon is protected under the fair use doctrine Popular consensus among scholars is that Rowling has a weak case, if any, and that the Lexicon is protected under the fair use doctrine On the other side, however, are laypeople leaving comments on online articles and blogs; those comments undoubtedly favor Rowling and think the Lexicon should not be published On the other side, however, are laypeople leaving comments on online articles and blogs; those comments undoubtedly favor Rowling and think the Lexicon should not be published

34 Public Commentary William Patry, author of Patry on Copyright and senior copyright counsel for Google William Patry, author of Patry on Copyright and senior copyright counsel for Google I dont see how a list of spells…is anything other than fair use…Regardless of how the Harry Potter suit comes out, the most depressing part is that it was brought at all. Fans will happily buy her book; the only effects of the suit, therefore are negative. I dont see how a list of spells…is anything other than fair use…Regardless of how the Harry Potter suit comes out, the most depressing part is that it was brought at all. Fans will happily buy her book; the only effects of the suit, therefore are negative.

35 Public Commentary Tim Wu, a Columbia Law School professor and freelance writer Tim Wu, a Columbia Law School professor and freelance writer Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesnt. Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesnt. No one would read the Lexicon as a substitute for the Potter books; it is useless unless youve read the original, and that makes all the difference…Giving Rowling what she wants would be like giving Egypt the power to control guides to the pyramids. No one would read the Lexicon as a substitute for the Potter books; it is useless unless youve read the original, and that makes all the difference…Giving Rowling what she wants would be like giving Egypt the power to control guides to the pyramids.

36 Public Commentary User Comments on the William Patry blogs User Comments on the William Patry blogs It is my educated, but inexperienced, opinion that the Compendium [Lexicon] would not constitute a fair use of Ms. Rowling's copyrighted materials. The purpose of the use is commercial in nature and arguably non- transformative. The Compendium - judging by the court filings - is simply an alphabetical re-formatting of Ms. Rowling's creative expression. It is my educated, but inexperienced, opinion that the Compendium [Lexicon] would not constitute a fair use of Ms. Rowling's copyrighted materials. The purpose of the use is commercial in nature and arguably non- transformative. The Compendium - judging by the court filings - is simply an alphabetical re-formatting of Ms. Rowling's creative expression. It comes down to money...this guy saw that the Harry Potter series was a way to make money for him so he decided to try to cash in on it. Should he be permitted to do so, NO. It comes down to money...this guy saw that the Harry Potter series was a way to make money for him so he decided to try to cash in on it. Should he be permitted to do so, NO.

37 Public Commentary User comments on the Slate.com article J.K. Rowlings Dark Mark User comments on the Slate.com article J.K. Rowlings Dark Mark JK should not lose her copyright lawsuit. she is not discouraging individual writers or fan fiction it is simply saying that lexicon should not be able to publish and therefore make money from something that was her original idea and not only that but she will soon be completing her own encyclopedia of Harry Potter JK should not lose her copyright lawsuit. she is not discouraging individual writers or fan fiction it is simply saying that lexicon should not be able to publish and therefore make money from something that was her original idea and not only that but she will soon be completing her own encyclopedia of Harry Potter I actually agree with Rowling... It is her rights. It's fine to be a fan and do all those things out of love, but trying to make money off of someone else's creation sucks. I actually agree with Rowling... It is her rights. It's fine to be a fan and do all those things out of love, but trying to make money off of someone else's creation sucks.

38 Comparative Fair Use: How would the Lexicon fare in the U.K.? Instead of a fair use concept, the UK employs the notion of fair dealing Instead of a fair use concept, the UK employs the notion of fair dealing The idea behind the concept is that if copyright laws are too restrictive, it may stifle free speech, news reporting, or result in disproportionate penalties for inconsequential or accidental inclusion The idea behind the concept is that if copyright laws are too restrictive, it may stifle free speech, news reporting, or result in disproportionate penalties for inconsequential or accidental inclusion UK fair dealing is more restrictive than in the US and applies only to statutorily defined situations UK fair dealing is more restrictive than in the US and applies only to statutorily defined situations

39 Comparative Fair Use: How would the Lexicon fare in the U.K.? Copyright, Designs and Patents Act 1988, Chapter III Acts Permitted in relation to Copyright Works, §29. Fair dealing with a literary work, [other than a database] or a dramatic, musical or artistic work for the purposes of research or private study does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement Fair dealing with a literary work, [other than a database] or a dramatic, musical or artistic work for the purposes of research or private study does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement

40 Comparative Fair Use: How would the Lexicon fare in the U.K.? The Society of Authors and the Publishers Association has issued guidelines regarding fair dealing in the context of criticism and review The Society of Authors and the Publishers Association has issued guidelines regarding fair dealing in the context of criticism and review Defined fair dealing as a single extract of up to 400 words or a series of extracts (of which none exceeds 300 words) to a total of 800 words from a prose work. The words MUST be quoted in the context of criticism or review. Defined fair dealing as a single extract of up to 400 words or a series of extracts (of which none exceeds 300 words) to a total of 800 words from a prose work. The words MUST be quoted in the context of criticism or review. The online Lexicon does not use quotation marks around direct quotations, and it is reported that the print version did not use them either The online Lexicon does not use quotation marks around direct quotations, and it is reported that the print version did not use them either

41 Comparative Fair Use: How would the Lexicon fare in the U.K.? The University of Cambridge has indicated that fair dealing for the purposes of criticism or review may apply if short extracts of copyright material are posted on an intranet or possibly the Internet, but the purpose must be that of criticism or review and not use of the extracts solely for anthologizing or illustrative purposes The University of Cambridge has indicated that fair dealing for the purposes of criticism or review may apply if short extracts of copyright material are posted on an intranet or possibly the Internet, but the purpose must be that of criticism or review and not use of the extracts solely for anthologizing or illustrative purposes The purpose of the Lexicon is essentially to organize and anthologize information in Rowlings books for illustrative purposes" The purpose of the Lexicon is essentially to organize and anthologize information in Rowlings books for illustrative purposes"

42 Comparative Fair Use: How would the Lexicon fare in the U.K.? The UK Intellectual Property Office, official government body responsible for granting IP rights in the UK, said: The UK Intellectual Property Office, official government body responsible for granting IP rights in the UK, said: Fair dealing has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use; where the economic impact is not significant, the use may count as fair dealing. So, it is probably within the scope of the above fair dealing exception to make single photocopies of short extracts of a copyright work for certain purposes, that is, non- commercial research or private study, criticism or review, reporting current events, and so on. Fair dealing has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use; where the economic impact is not significant, the use may count as fair dealing. So, it is probably within the scope of the above fair dealing exception to make single photocopies of short extracts of a copyright work for certain purposes, that is, non- commercial research or private study, criticism or review, reporting current events, and so on.

43 Comparative Fair Use: How would the Lexicon fare in the U.K.? Vander Arks guide admittedly uses a great amount of direct quotations from the Potter books Vander Arks guide admittedly uses a great amount of direct quotations from the Potter books The Lexicon does not fit into the boxes of criticism or review The Lexicon does not fit into the boxes of criticism or review The Lexicon, which comprises hundreds of pages of copyrighted material, hardly seems to fit into the scope of fair dealing in the UK The Lexicon, which comprises hundreds of pages of copyrighted material, hardly seems to fit into the scope of fair dealing in the UK Not likely he would find protection in the UK Not likely he would find protection in the UK

44 Comparative Fair Use: How would the Lexicon fare in the E.U.? All European Union Member States are parties to the: All European Union Member States are parties to the: Berne Convention Berne Convention TRIPS (Trade-related Aspects Of Intellectual Property Rights) TRIPS (Trade-related Aspects Of Intellectual Property Rights) WIPO Copyright Treaty WIPO Copyright Treaty

45 Comparative Fair Use: How would the Lexicon fare in the E.U.? Berne Convention Gives authors the exclusive the right to make adaptations, arrangements, other alterations and collections of the work Gives authors the exclusive the right to make adaptations, arrangements, other alterations and collections of the work Free Use Concept Free Use Concept Permissible to make quotations from a work which has already been lawfully made available to the public, provided it is compatible with fair practice, and the extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries Permissible to make quotations from a work which has already been lawfully made available to the public, provided it is compatible with fair practice, and the extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries It is a matter for legislation in EU countries to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice It is a matter for legislation in EU countries to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice The Lexicon is not for teaching and certainly does more than make quotations from the Harry Potter books The Lexicon is not for teaching and certainly does more than make quotations from the Harry Potter books

46 Comparative Fair Use: How would the Lexicon fare in the E.U.? Pursuant to the European Directive of May 22, 2001 permitted limitations include: Pursuant to the European Directive of May 22, 2001 permitted limitations include: Use for illustration for teaching or scientific research, to the extent justified by the non-commercial purpose Use for illustration for teaching or scientific research, to the extent justified by the non-commercial purpose Press reviews and news reporting; Press reviews and news reporting; Quotations for the purposes of criticism or review; Quotations for the purposes of criticism or review; Incidental inclusion in another work; Incidental inclusion in another work; Caricature, parody or pastiche Caricature, parody or pastiche The widespread copying found in the Lexicon does not seem to comport with any of these permitted exceptions The widespread copying found in the Lexicon does not seem to comport with any of these permitted exceptions

47 Comparative Fair Use: How would the Lexicon fare in the E.U.? TRIPS (Agreement on Trade-related Aspects Of Intellectual Property Rights) Exceptions to exclusive rights, like fair use, must be constrained: 3-Step Test for Exceptions (also found in Berne) Exceptions to exclusive rights, like fair use, must be constrained: 3-Step Test for Exceptions (also found in Berne) Members shall confine limitations and exceptions to exclusive rights to Members shall confine limitations and exceptions to exclusive rights to Certain special cases; Certain special cases; Which do not conflict with a normal exploitation of the work; Which do not conflict with a normal exploitation of the work; And do not unreasonably prejudice the legitimate interests of the rights holder And do not unreasonably prejudice the legitimate interests of the rights holder Does the Lexicon unreasonably prejudice the legitimate interests of Rowling as the author? Does it conflict with normal exploitation of the work? Does the Lexicon unreasonably prejudice the legitimate interests of Rowling as the author? Does it conflict with normal exploitation of the work?

48 Comparative Fair Use: How would the Lexicon fare in the E.U.? WIPO Copyright Treaty Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention Also mandates the three-step restraint of Berne, TRIPS Also mandates the three-step restraint of Berne, TRIPS Provides for protection for compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation Provides for protection for compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation Does not seem the Lexicon would be protected as a compilation since the underlying work in the compilation is all copyrighted

49 Predictions, Comments & Conclusions The internet has made it easy for anyone and everyone to create derivative works, post them online, and benefit from them commercially The internet has made it easy for anyone and everyone to create derivative works, post them online, and benefit from them commercially The outcome of this lawsuit will have an impact on this practice The outcome of this lawsuit will have an impact on this practice The internet has also made it easier for creators of original material to post it online and share it with the world The internet has also made it easier for creators of original material to post it online and share it with the world It is hard to predict how the court will rule It is hard to predict how the court will rule The Judge hearing the case urged the parties to settle, though neither party seems to have taken the advice The Judge hearing the case urged the parties to settle, though neither party seems to have taken the advice

50 Predictions, Comments & Conclusions Based on the fact that unauthorized guides have existed for so long, the Lexicon has a good chance for protection in the US Based on the fact that unauthorized guides have existed for so long, the Lexicon has a good chance for protection in the US If this case was brought in Europe, chances for protection decrease dramatically If this case was brought in Europe, chances for protection decrease dramatically Denying protection would be a big blow to the guide industry and would disappoint many fans Denying protection would be a big blow to the guide industry and would disappoint many fans How realistic is it that such guides would disappear completely How realistic is it that such guides would disappear completely Even if publishers refused to publish them, anyone can post on the internet Even if publishers refused to publish them, anyone can post on the internet Will more infringement suits be brought? Will more infringement suits be brought? Fair Use seems to sufficiently protect the concept of such a guide, perhaps with some modifications Fair Use seems to sufficiently protect the concept of such a guide, perhaps with some modifications


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