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Fair use and the internet: changes and challenges

The internet has democratized the sharing of information to an unprecedented extent. Every news article, blog post, Tweet or video comes emblazoned with a "Share This" link or button, urging us to forward on our digital chain letters with aplomb.

The ease with which information, ideas and creative or intellectual works can be remixed, reposted, copied or co-opted brings challenges to creators and Intellectual Property holders. Business models such as YouTube's monetization program, which compensates content creators on a per-view basis, have increasingly replaced buy-to-own models – and many creators and rights holders used to the old ways have found it difficult to adapt.

In particular, the concept of fair use has become problematic. Under U.S. law, Section 107 of the Copyright Act allows the reproduction and other uses of copyrighted works for various purposes, including news reporting, criticism, comment and scholarship. The fair use of such works as part of another profit-making work is not disallowed, especially in cases where the derivative work is transformative, adding to the original in a substantial or meaningful way.

On the internet, however, where almost anyone can upload a film review consisting of their commentary on top of the studio’s promotional trailer, disputes have arisen between Copyright holders and content creators over what constitutes fair use – and who gets the advertising revenue.

Whether the concept of Intellectual Property has become devalued in the eyes of the wider public or technological developments have outpaced existing business models, copyright holders have to embrace change and come to terms with the implications of a medium that allows for the instant duplication and distribution of information and ideas. The law is changing to adapt to these new challenges – the Digital Millennium Copyright Act being a notable example – and Copyrights, Trademarks, Patents and other Intellectual Property are still protected from infringement, both on- and offline.

Even on this wild frontier, it’s not impossible to defend your rights as an Intellectual Property holder – just make sure to hire an attorney who understands and embraces technology as your guide.

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