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The article was a challenge to copyright expansionism, which was just entering its modern phase, and was still largely unquestioned in the United States. It became one of the most widely cited skeptical examinations of copyright. [2] In this piece, Breyer made several points:
Some courts employ "thin copyright", finding that there is a valid copyright of factual works, but that it is afforded only limited protection against "virtual identicality" or "bodily appropriation of copyrighted expression", thus permitting paraphrasing that might be prohibited in other circumstances.
The copyright of the final published version of record may reside with the authors or the publisher depending on the publisher's business model. For journals following a subscription model, where articles are accessed via a paywall, copyright is transferred from author to publisher.
HathiTrust, 755 F.3d 87 (2d Cir. 2014), is a United States copyright decision finding search and accessibility uses of digitized books to be fair use. The Authors Guild, other author organizations, and individual authors claimed that the HathiTrust Digital Library had infringed their copyrights through its use of books scanned by Google.
The 'staple article of commerce' defence is available under Patent law in the United States and it lays down that when an infringing article is capable of 'substantial non infringing uses', it would become a 'staple article of commerce' and therefore, not attract any liability for infringement. Based on this reasoning, it was held
But if the intended exploitation of the work includes publication (or distribution of derivative work, such as a film based on a book protected by copyright) outside the US, the terms of copyright around the world must be considered. If the author has been dead more than 70 years, the work is in the public domain in most, but not all, countries.
The three-step test in Article 9(2) of the Berne does not apply to copyright exceptions that are implemented under other parts of the Berne convention that have a separate standard, such as those in articles 2(4), 2(7), 2(8), 2 bis, 10, 10 bis and 13(1), or the Berne Appendix.
Google's making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs' books without providing the public with a substantial substitute for matter protected by the Plaintiffs' copyright interests in the original works or derivatives of them.