[Air-l] re:Response to Thomas Koenig - Part I

[Dan L Burk]

On 25 May 2004, Charles Ess wrote:

> > Charles, you wrote...
> > "2. The central question then becomes - what counts as a recording or
> > registration of publicly observable behavior?
> > Part of the difficulty here is making an analogy between offline
recordings
> > (via cameras, video and audio tape recorders, etc.) and what is now a
> > publicly available archive of USENET postings.
> > It seems to me that there is a strong analogy. Recordings/registrations
> give
> > us an enduring and publicly accessible source of information for
subsequent
> > analysis - and certainly the publicly accessible archive of USENET
postings
> > does the same thing."
> > 
> > Now I am confused.
> > 
> > I see the publicly available archive of USENET and the information
> available
> > on websites
> > as a library.
> > One doesnt ask permission from every source of information used in a
> library
> > when conducting 
> > a study, does one?
> 
> As Dan Burk's post made clear, I thought - the situation depends on the
> "fair use" or equivalent guidelines for the use of copyrighted material. 
I
> don't know what the situation in Australia is - but then we have the
further
> interesting question of what to do with a resource that is almost by
> definition international. The Berne convention should apply, as Dan makes
> clear - but whose "local" rules for fair use (if any) apply?
>  
> cheers,
> charles ess

Charles is generally correct here, although Berne (and/or WTO TRIPs) does
not apply of itself -- it mandates certain standards for national laws. 
Application of national law will depend on conflict of law principles,
considering 1) where the user is located, 2) where the author of the
materials was located when the materials were created, 3) the nationality
of the author, and possibly 4) where the server housing the materials is
located.
  
Eero's analogy fails, first, because as far as copyright is concerned,
USENET archives are *not* a library in the same way that print materials
are.  Using print materials does not entail making copies.  Accessing
USENET archives does -- at a minimum, as I said previously, making RAM
copies.

As Charles suggested, in the US, the creation of such copies may be fair,
and/or allowed by implied license, for certain purposes.  Other countries
have reached different results.  And even if you believe some uses are fair
and/or licensed, those priveleges will not extend to all possible uses of
the materials.

Some further background is available at
http://elj.warwick.ac.uk/jilt/intprop/98_2burk/default.htm
-- getting a bit dated, but the general analysis still applies.  DLB 



Dan L. Burk
Oppenheimer, Wolff & Donnelly Professor
University of Minnesota Law School
229 19th Avenue South
Minneapolis, MN 55455 USA
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