Access to Knowledge: a guide for everyone Page: 33
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Most countries have implemented the three step test by enacting piece-
meal copyright exceptions for specific purposes or specific classes of
consumer, such as the educational, library and disability exceptions de-
But there is an alternative approach, first and most famously found in
the copyright law of the United States, which allows for any use of a copy-
righted work that can be described as "fair", considering the purpose and
character of the use, the nature of the work, the amount and substantial-
ity of the portion used, and the effect of the use upon the potential market
for or value of the work.
There are many uses of copyright materials that are allowed under
US law as "fair use", that would not be allowed under the more specific
exceptions of other countries. These include new and innovative uses
of copyright works, such as the production of audio and visual collages
or "mash-ups", as well as more prosaic uses such as transferring music
to an MP3 player, or recording your favourite television show to watch
later. Businesses, too, can benefit from fair use - for example, the way
in which an Internet search engine operates, by providing short excerpts
from Websites and thumbnail pictures of images, relies on this exception.
The fair use exception of US law is not perfect. Because it is by nature
so imprecise, it is difficult to be certain whether a given use falls within
the exception or not (in fact, fair use rights have been more cynically de-
scribed as "the right to consult a lawyer"). However fair use can usefully
operate as a "catch-all" exception, to ensure that consumers do not be-
come unwitting infringers when copyright laws fall behind.
Amongst the other countries that have adopted a fair use exception
modelled on that of the US are Israel and the Philippines, with Malaysia
being expected to adopt one in 2010.
One popular view is that the purpose of copyright is to maximise rev-
enues for copyright industries such as publishers, movie houses and re-
tailers, which makes sense to regulators as a source of growth and foreign
exchange. But, in fact, the purpose of copyright is to encourage creativ-
ity and the diffusion of creative works. Copyright should therefore not be
an industrial subsidy, but a tool for access to knowledge. If copyright law
gets in the way of creativity and access, it is frustrating this purpose.
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Noronha, Frederick & Malcolm, Jeremy. Access to Knowledge: a guide for everyone, text, 2010; Kuala Lumpur, Malaysia. (digital.library.unt.edu/ark:/67531/metadc33297/m1/43/: accessed February 22, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; .