AIPPI Webinar on Fair Use

16 Jun 2022, 18:00  -  19:00
Online
WEBINAR

Webinar hosted by AIPPI Canada.

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AIPPI Canada is pleased to host three copyright scholars in a 1-hour webinar on fair use, moderated Brian Gray, Barrister and Solicitor at Brian Gray Law, on June 16 at noon EDT (6 pm CEST).

Program:

Jane C. Ginsburg of Columbia Law School, New York, will discuss
Andy Warhol, Transformative Use and Fair Use - Where Are We Going?

The Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both
from its prior caselaw’s generous characterization of artistic reuse as
“transformative,” and from the outcome-determinacy of a finding of
“transformativeness.” The decision suggests both that courts may be applying a more
critical understanding of what “transforms” copied content, and that courts may be
reforming “transformative use” to reinvigorate the other statutory factors, particularly
the inquiry into the impact of the use on the potential markets for or value of the
copied work. The Second Circuit’s decision in Andy Warhol Foundation
v. Goldsmith also addresses the relevance to transformative use of the Supreme
Court’s ruling in Google v. Oracle; the Second Circuit declined to extend the Supreme
Court's fair use analysis beyond the context of functional code far from the “core of
copyright.”

Daan G. Erikson of Husch Blackwell LLP, Boston, will discuss
Fair Use After Google v. Oracle.

In holding Google’s use of Oracle’s software code was fair use as a matter of law, the
U.S. Supreme Court issued its first opinion on fair use since the 1994 decision
Campbell v. Acuff-Rose. Among other notable points in Google v. Oracle, the
majority held that Google’s use was transformative because it used the code “in a distinct and
different computer environment” (to develop smartphones rather than desktops or
laptops), highlighted how much of the code Google did not copy, and focused on the
effect on the market rather than the effect on the potential market. Have lower courts
adopted or ignored these unorthodox aspects of the Supreme Court’s latest edict on
fair use?

Commentary by Ysolde Gendreau of University of Montreal, Canada.

The Supreme Court of Canada consecrated the notion of user rights in its interpretation of the fair dealing exception, the Canadian cousin of US fair use, in its 2004 decision in CCH Canadian Ltd v. Law Society of Upper Canada. This commentary will focus on a comparison of the two exceptions in order to venture how the Warhol case could be decided in Canada if fair dealing were to govern the situation.

 

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