Fair use and file sharing in research and education

Abstract

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.

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