Fair use and file sharing in research and education

Wang, Yueyue (2009) Fair use and file sharing in research and education. University of Southampton, School of Law, Doctoral Thesis , 302pp.


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This work was inspired by the well-ventilated current problems around the use of digital file
sharing technologies and their promotion of infringement of copyright leading to the alleged
destruction of entertainment industries. Different legal systems have applied different
analyses to such problems, and there is no clear and coherent answer to the question of
whether file sharing, especially in the form of peer-to-peer (P2P), is legal. The particular
focus of this thesis flows from the realisation that litigation around file sharing has
uniformly explored it from the perspective of users downloading entertainment materials
such as music and videos. Comparatively little attention has been paid to whether research
and educational users have, or should have, rights to use the same digital file sharing
technologies to access copyright materials important to their work. If digital file sharing is
declared illegal by the courts at the behest of the entertainment industries, then what will
happen to research and educational users of these networks?

To explore this key problem, this thesis focuses on how fair use doctrine, the most important
exception and limitation to copyright, has transferred from the traditional copyright
environment into the context of digital file sharing. By undertaking a study of relevant
legislation and cases, such as the well known Napster, Grokster and MP3.com, the “who”
issue, namely, who is the party entitled to benefit from a fair use defence will be highlighted.

Having established that fair use as a defence operates ineffectively in the digital file sharing
environment, the thesis then looks at existing alternative or “fared” use models, and
particularly the disadvantages of “fared” use system in serving research and educational file
sharing. Finally the thesis turns to what is termed the “voluntary model”: a model in which
copyright owners make their works available to academic users for free, via an institutional
repository, the authors gaining non-pecuniary benefits while the commercial publisher being
cut out as a “middleman”. Although future work to develop the details of this approach
would be required, the thesis asserts this is a promising way towards ensuring access to
copyright works in research and education thus benefiting society, whilst at the same time
establishing fair compensation to authors for their efforts.

Item Type: Thesis (Doctoral)
Subjects: M Music and Books on Music > M Music
Q Science > QA Mathematics > QA75 Electronic computers. Computer science
K Law > K Law (General)
Divisions : University Structure - Pre August 2011 > School of Law
ePrint ID: 67657
Accepted Date and Publication Date:
March 2009Made publicly available
Date Deposited: 04 Sep 2009
Last Modified: 27 Mar 2014 18:48
URI: http://eprints.soton.ac.uk/id/eprint/67657

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