Semantron 23 Summer 2023

Copyright law

‘Ordinary Observer Test’ is used in the first, second, third and fifth circuits. The ‘ Extrinsic-Intrinsic T est’ is divided into two parts. The first part, using expert evidence, focuses on ‘ objective similarities of the works’ ideas and protectable expressions’ . The second part, prohibiting expert testimony, focuses on the overall concept and feel of the two works. Since the test uses a more holistic and diverse view to treat creative works, it can prevent the court from mechanically dissecting the separate copyright components. This approach will promote creativity since the freedom for an artist to express their creativity will alter the ‘ feeling ’ of the piece and not be restrained by being focused on the technical similarities of the piece. Even though the cost of copyright litigation is unaffordable for the majority of people and the ambiguity of the ‘substantial part’ test may stifle the creativity of authors, the advantage of the protection given by copyright law outweighs the disadvantages. Various options are available to deal with any dispute before legal action has to be taken. When an author discovers that their copyright has been infringed, they can first attempt to come to an agreement with the infringing party. For example, the right can be licensed, sold and marketed, thereby compensating the producer of the work. An agreement can be made for the infringer to desist in their infringing acts. If they cannot reach an agreement on their own, mediation can be the next, more affordable step. Mediators will provide an independent view in order to find a solution that can benefit both parties. Mediation will take place confidentially, making it more suitable for cases that involve documents disclosure and business-related information. The original objective of copyright law was to promote creativity by protecting the effort and work of the author, by allowing them to recover the financial loss including loss of royalties from the copyright infringer. The principle of the law is enhanced by the legal developments in alternative dispute resolutions (ADR). The ability to use the law but not proceed through the court makes a huge difference in copyright development since it will benefit all parties in terms of cost and confidentiality. Thus, the law within the ADR framework promotes creativity to a great extent.

Does the law need modification?

Although copyright law does promote creativity and innovation in general, there are still numerous areas and flaws in the law that should be revised and amended in order to protect the author in a more extensive and comprehensive way; it should also ensure that copyright is not abused and is not used as a blanket to stifle development. Copyright law aims to ensure that citizens of all backgrounds are treated equally and have an equal amount of protection when it comes to their original work and creations. In light of the unaffordable costs associated with litigation and enforcing copyright, it is easy to infer that the law is no longer serving its initial purpose. Copyright cases in courts have now become a contest between corporations, the upper-classes and political parties since infringement may result in a decline in reputation and/or revenue rather than something that serves an artist who has had their work reproduced and sold. Lower to middle-class citizens will not be able to access an equal amount of legal support and knowledge due to the large fees charged by law firms and barristers. When you have such disparity between the parties the outcome of a case is not necessarily just or equitable. The economics of litigation mean that the system of copyright is imbalanced. Both the law and the legal system should be revised to enhance the protection of copyright and serve the initial purpose of the law.


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