We have to keep in mind that there are situations where parties are able to use another’s intellectual property without infringing any legislation. This is often referred to as fair use. The line between what is fair use and breach of legislation may be difficult to determine. Earlier this year, the German Bundestag (the constitutional and legislative body in Germany) was ammending its intellectual property laws. An early draft of this ammendment saw search engines, such as Google and Bing, paying royalties if they showed a single word from copyrighted text. Clearly the drafters and legislatures recognised the lunacy in such a law being passed and ammended the drafts to allow snippets of text. However, snippets is not defined anywhere in the legislation making the line between fair use and infringement relatively flexible.
In music law we have a similar issue determining how much use is too much by a third party. As far as I can tell, any use of a song for commercial purposes, without the proper royalties and compensation paid, will be too much. However, what about non commercial purposes? If an individual is hoping to use a part of a song in his online video or podcast, how much of the song can he use without infringing copyright? As I understand it the general rule (in the absence of any agreement with the third party and the party holding the intellectual property) is that a song can be used for a maximum of thirty seconds, any more and there is a potential breach of copyright. This clearly can be considered as a rigid area of law.
I believe there are some caviats to this rule in the United States’ legal system. For example if the song is being reviewed by the third party a greater part (if not all) of the song can be played (I think). Ofcourse radio and public broadcasters can play all of the song without having to pay royalties, however as I have mentioned in my previous blog posts, this may soon change.
Regardless of these caviats, the question still remains as to if we should have rigid lines defining the difference between a breach and fair use. The argument may be raised that the line should be more flexible, as is now the case in Germany with the protection of textual intellectual property, and thus the breach should be based on the spirit of the use by the third party.
Ofcourse, I accept that the flexible nature of Germany’s protection of intellectual property will probably change when a dispute is brought into court and the judiciary sets a precedent defining, or narrowing the definition of, “snippet”.
Source:http://techcrunch.com/2013/03/01/germany-passes-new-internet-copyright-law-after-watering-it-down-to-spare-google-from-having-to-pay/
