Copyrights and trademarks have protected the rights and privileges of those who created, wrote, sang, published and sold products and works for many years. The growing problem is how these property rights are able or unable to work with the immense amount of intellectual property at our disposal in the digital age. What needs to be examined is the practical use or detriment these management methods have in the case of computer and/or Internet information.

In the article Copyright and Fair Use in the Digital Age, one stated concern is; “copyright law will impede the very process of technological and educational innovation which is the social purpose of copyright as defined in the Constitution: to ‘promote the progress of science and the useful arts’” (Lyman, 1995). This was a burgeoning issue more than 15 years ago; unfortunately, little progress has been made to dispel this concern.

The concept of Fair Use has been interpreted countless ways by lawyers and judges, to the point of ambiguity. At this point the notion should be modified, updated, defined or eliminated. More money has been spent on the arguments than on regained losses. Regarding the loss, how much is actually lost revenue in instances of ‘piracy’? Other than lawyers, who really makes the money from ‘piracy’?

Users of the material and creators of the material pay a price, but the cost of litigation makes the gain inconsequential in the recapture of lost potential revenues (. The Fair Use “doctrines … generate excessive ambiguity and prolong litigation … [the] resulting administrative costs discourage [users] from using trademarks in the first place” (McGevern, 2008). It almost seems that these copyright, trademark and fair use systems are beyond their expiration, especially when it comes to electronic materials.

Intellectual property is a term that is contradictory, as, in essence, thoughts are not actual property unless manifested in a tangible, concrete, state, nor is the conveyance of a thought or idea. As explained in the journal, Educom Review; “Ideas are not property at all; they are created as part of the process of human communication. Only concrete representations of ideas can be treated as property; ideas themselves cannot” (Lyman, 1995).

This rationale raises questions regarding free speech. In the same article is found; “communities are defined by the information they share, the way they learn together, and the information they create….Digital works are works of communication, not industrial commodities. If we begin by defining the network as a communication medium, not as a highway for transportation … we are closer to reality” (Lyman, 1995).

Many industries muddy the fair use waters by attempting place trademarks and copyrights on ordinary descriptive language. Fair Use is designed to “prevent the basic phrases and commonplace expressions of ordinary language from appropriation by individual businesses or organizations … protect the right of competitors to engage in comparative advertising … [and] … protect our right to use a trademark to specifically refer to the trademarked good or service” (Fair Use Network, 2007).

The problem arises with judicial interpretation, in fair use cases, where set laws are pretty much non-existent. There only exists guidelines which are “adapt[ed] … to particular situations on a case-by-case basis” (Stim, 2009).

The guidelines consist of four factors. The first of which, is (1) the purpose and character of use. The criteria are whether the copied material is just a copy of the original, or is it being used to create something new or perhaps been transformed with a new meaning. The second guideline is (2) the nature of the copyrighted work, as copies of factual works tend to be accepted more readily than copying works of fiction or art. Third thing looked at is (3) the amount of work taken, basically, the less that is taken, the more legal leeway exists. The fourth and final guideline is (4) the financial effect. This means, in short, determining “whether your use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work” (Stim, 2009).

The inception of fair use was based on the idea that it would alleviate issues between freedom of expression and copyright law; however it has done anything but. Vague questions arise such as the social benefit of using a copyrighted work, cases of time-shifting, making backup copies of works that have been purchased and the actual purchase itself. According to scholar Shih Ray Ku (2002); “Costs associated with disseminating digital content … are borne by the users of information through the purchase of computer equipment and connections to the Internet. As such the Internet and digital technology eliminate one of the principal problems created by the public good nature of information the public’s failure to internalize the cost of distributing intellectual works. Copyright, therefore, is no longer necessary to create property rights artificially in digital works to eliminate free riding.”

This idea relates to intellectual property in that the question is posed again, is material created and transmitted electronically actually in a tangible medium? Is it concrete?

According to Communication Technology and Social Change; “many have observed that the phrase ‘intellectual property’ is less meaningful than the more specific language of copyrights and patents” (Lipschultz, 2007). Reading further; “Although copyright law protects tangible products, such as writings, music, multimedia and recordings, it does not protect ideas or facts” (Lipschultz, 2007)

Realistically, anything on the Internet could be considered transmitted and therefore copied and thus subject to copyright law. If an idea is posted and available to be seen, the transmission and image on the monitor could be considered a copy, and not paid for by the viewer/listener. Although this may be an extreme and ridiculous scenario, it is logical. If taken in this context, most of the Internet and media is unprotected, networked intellectual property and there is no practical way to enforce infringement laws. This applies to all digital environments. Fair Use has been used and abused from the inception of Intellectual Property, the problem being, those who benefit from it, are usually not the creators anyway.

• Association of Research Libraries: Fair Use in the Electronic Age: Serving the Public

Interest. (2007, July 12). ARL

• Electronic Frontier Foundation | Defending Freedom in the Digital World. (2002, March

21).

• Fair Use Network: Introduction to Fair Use and Other Free Expression Rights. (2007,

June 11). FairUse Network

• Lipschultz, J. (2007). Digital media and fair use. In Atkin, D. J. & Lin, C. A. (Eds.),

Communication Technology and Social Change: Theory and Implications (Leaandapos;S Communication Series) (p243-6). Newark: Lawrence Erlbaum Assoc. Inc..

• Lyman, P. (1995). Copyright and fair Use in the Digital Age. Educom Review,

30(Number 1). Educause

• McGeveran, W. (2008). Rethinking trademark fair use. Iowa Law Review, 94.1, 49.
• Shih Ray Ku, R. (2002). The Creative Destruction of Copyright. University of Chicago

Law Review, 69, 263.

• Stim, A. R. (2009). Stanford Copyright & Fair Use - Copyright and Fair Use Overview

and Resources. Stanford Copyright & Fair Use

• The 'Fair Use' Rule: When Use of Copyrighted Material is Acceptable. (2009).