|Judge Denny Chin|
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes [a key consideration here is whether the use is transformative, ie whether the new work merely supersedes or supplants the original creation or whether, instead, it adds something new, with a further purpose or different character. For recent, yet controversial, cases see here and here];
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
|Now that he knows he can do it, |
Frank has decided to launch a Kat
|Invaluable snippet-view of |
Mildred's scanned paws
- Are orphan works a fake problem? At least under US law it would seem so, as there is no mention of them in the decision of Judge Chin.
- Are text and data mining activities something which falls outwith the scope of copyright protection tout court? From what Judge Chin wrote, it would seem so: text and data mining would require neither a licence nor a specific exception. Although US open-ended fair use clause differs from InfoSoc Directive's exhaustive list of exceptions and limitations, Judge Chin did not seem to consider that such activities could infringe exclusive rights of copyright owners. From an EU perspective, if one transferred the interpretation of "commercial" provided in the ruling to this context, it could be argued that most text and data mining activities would be already covered by Article 5(3)(a) of the InfoSoc Directive.