#fairdealing

[mykhuranaandkhurana-blog]

Unauthorized Use of Match Highlights on Social Media

IntroductionSports is not left behind in the intellectual property law, especially in the digital age where sporting content can be consumed

The unauthorised use of match highlights on social media has intensified copyright concerns in sports broadcasting. While broadcasters hold exclusive rights over live and recorded content, users often claim protection under fair dealing exceptions.

[joeraetzer]

Navigating the Implied Duty of Good Faith and Fair Dealing in Contracts

Imagine you’ve signed a meticulously prepared contract after extensive due diligence and negotiations. Yet, shortly after, you find that the other party’s actions—while not explicitly breaching the contract—are obstructing your ability to benefit from the agreement. What can you do? This is where the implied duty of good faith and fair dealing comes into play. This duty, recognized in most jurisdictions (albeit with varying scope), requires parties to act reasonably and fairly in performing and enforcing contractual obligations. What is the Implied Duty of Good Faith and Fair Dealing? The implied duty ensures that contracting parties do not act in ways that: - Exploit the other party beyond what the contract explicitly allows. - Undermine the other party’s ability to receive the agreed-upon benefits. While it doesn’t create new rights, it imposes obligations for reasonable and fair behavior. For example, in Texas, this duty arose to address the imbalance of power in specific relationships, such as between insurers and insureds. However, Texas applies this duty narrowly, typically reserving it for contracts involving special relationships. Factors Courts Consider in Breach of Implied Duty Claims When addressing claims of breach, courts may look beyond the explicit terms of a contract to assess implied obligations. Here are some factors courts evaluate: - Express Terms of the Contract - The implied duty complements but cannot contradict the contract’s explicit terms. - Courts may enforce implied obligations to uphold the parties’ intentions and the contract’s purpose but will not impose obligations inconsistent with the agreement. 2. Context and Circumstances - Courts may consider how the contract was negotiated and any prior dealings between the parties. - A history of difficult but compliant behavior by one party may weaken a claim, as the other party could have anticipated challenges. 3. Special Relationships - In Texas, the duty of good faith and fair dealing applies only to contracts involving special relationships, such as: - Insureds and insurers. - Executive rights holders and non-executive mineral interest owners. - Ordinary business transactions typically do not qualify. 4. Employment Context - In Texas, employers are not obligated to act in good faith toward employees. The Texas Supreme Court clarified that the unique vulnerabilities present in insurance contracts don’t apply to employer-employee relationships, as employees can seek alternative employment. 5. Discretionary Power - A breach may occur if one party uses discretionary power in an arbitrary or unreasonable way to harm the other’s contractual benefits. 6. Self-Interest - Acting in self-interest is not inherently a breach unless it violates the agreed-upon terms or undermines the other party’s rights. Establishing a Breach of Implied Duty To succeed in a claim, the following must be proven: - An existing contract between the parties. - The plaintiff fulfilled or was excused from fulfilling their obligations. - The defendant unreasonably interfered with the plaintiff’s contractual benefits, such as: - Preventing performance. - Depriving benefits through deceitful schemes. - Exploiting the agreement in bad faith. 4. The plaintiff suffered damages due to the defendant’s actions. Damages for Breach of Implied Duty Damages for breach may include: - Compensatory damages for actual losses. - Consequential damages for secondary impacts caused by the breach. - Liquidated damages, if specified in the contract. - In certain cases, punitive damages for willful or malicious misconduct. Texas’ Narrow Approach Texas courts strictly limit the implied duty of good faith and fair dealing to special relationships. While this narrow scope may disadvantage parties in ordinary transactions, it highlights the importance of: - Recognizing power imbalances before entering contracts. - Exploring other legal protections for potential vulnerabilities. - Acting in good faith to avoid disputes and litigation, especially in uncertain economic times. Understanding the implied duty of good faith and fair dealing can protect contracting parties from unfair practices and ensure equitable outcomes. Whether negotiating new agreements or addressing issues in existing ones, consulting with legal professionals to assess rights and obligations is critical in navigating these complex dynamics. Raetzer PLLC Read the full article Joseph J Raetzer

[psyther2748-blog]

The Cloak of Fair Dealing in Copyright

Like there are two sides of a coin, copyright also has two faces the good and the bad. On one hand copyright protects the work of an author and ensures that they don’t lose profit unfairly and on the other hand copyright limits the creativity and potential of other equally successful artists. It limits the creation of good material.

Under the protection of Copyright an individual can’t use the creation of another person without the consent of the author. Whereas there are certain exceptions to this rule and one of them is the concept of “Fair Dealing”. Today I will be talking about the concept of Fair Dealing and how people escape from infringing a copyrighted work because of fair dealing.

Fair Dealing can be understood as the copy of a copyrighted material that is used for transformative and limited means. The concept of Fair Dealing permits the usage of copyrighted material in few circumstances without seeking the permission from the creator or without providing payment to the copyright owner. It also includes within its ambit parodies, critiques and commentary. For using the copyrighted work without permission of the creator there are certain requirements that are to be met for the usage to come under the umbrella of fair dealing. Section 30  of the Copyright and Protection Act provides the conditions that must be met to legitimately fair deal a copyrighted work.

Taking parodies into consideration they are humorous comments. Parody can be defined as “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule.” Parodies require mimicking of an original work which is an infringement of copyright but they also require a certain amount of imagination and intellectual creation to make that work comic in nature which allows a person to escape from the liability of copyright infringement. But in case there is a parody created of a song and a huge portion of that song is copied and very less original creativity is put into the parody and as a final outcome the song still sounds like the original version for most of the part, this would be a copyright infringement.

In my opinion I believe that even though parodies, critiques and commentaries may be in line with the copyright act and may not be infringing any copyrighted material but using someone’s hard work just for the sake of making fun of it or giving critical comments about it, it may demotivate the creator or author and may lower his moral down which may result in to a barrier for innovation and invention of new work which is the sole purpose of creation of copyright act. By allowing creativity in parodies we might be limiting the creation of original work. The question here arises that do we need more of parodies or do we need more original work or can parodies be made without playing with the sentiments of the creator?

Sources : https://onlinelibrary.wiley.com/doi/abs/10.1087/20150309

https://uk.practicallaw.thomsonreuters.com/9-625-2313?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

[changinglaw-blog]

YouTube STILL does not care about Fair Use

Hit with a copyright strike, video deleted. Fair Use apparently doesn't mean much. Never thought this nonsense would reach my channel. Twitch live now!: http...

Fair use in theory vs fair use in practice

Real-life example, which shows that for most social/content sharing networks such as Youtube, Facebook and Instagram the first step when receiving a copyright infringement complaint is to take down the content, without giving contributors a chance to respond. 

[webmedia]

Mashup, Remix, and Fair dealing | What you need to know

by Tahlia.

[fairdealing-blog]

Amor

o amor é como uma flor,

nasce, pode começar simples,

mas com o passar do tempo se torna algo grandioso, 

ou como a flor, belo

pode ser cada vez mais intenso, ou cada vez mais amargo,

a rosa pode ter seus espinhos, assim como o amor

tudo é diferente, nenhum amor é comum, 

assim como nenhuma flor é igual, 

mas a escolha de qual flor vai ser seu amor vem de você,

e ai, seu amor é colorido? violeta... rosa.. lilás? 

qual o tipo de amor é o seu?

não se prenda, se liberte, entregue a flor que tem em você, para ao menos poder dizer, eu vivi o amor, e hoje compartilho das minhas flores,

e quando todas elas cairem, quando todas elas ficarem apenas na raiz,

relaxe, as flores brotarão novamente, e tudo recomeça, 

o importante será sempre, escolher a flor, e viver o amor.. <3

[fairuseweek]

Expert Fair Dealing

by Bobby Glushko, Head, Scholarly Communications and Copyright, University of Toronto Libraries

Friday February 22, 2016 was a great day for fair dealing in Canada. 

Last Friday, the Copyright Board of Canada, an administrative body that sets royalty rates for collective licenses, issued a decision on the rate for copying undertaken in K-12 educational settings.  Access Copyright, a collective licensing organization that represents Canadian writers and publishers, had originally proposed a tariff of $15 per student for the initial phase of the tariff.  The Board, after hearing all of the evidence, certified a tariff of $2.46 for the initial phase, dropping to $2.41 after three years.  This was not only a substantial reduction from Access’ request; it was also half of the previous tariff certified by the Board. 

This ruling, came as a welcome confirmation that the Canadian copyright balance has become increasingly user positive.  In recent months Access Copyright has suffered significant defeats as the Board and the courts have become increasingly comfortable with fair dealing and the vital role it plays in Canadian society.  The role of the collectives in facilitating the use of copyrighted works has fallen in importance as a more robust understanding of fair dealing has come to be understood.

Fair dealing has not always been so strong in Canada.  For many years fair dealing had been seen as an affirmative defense to copyright infringement, as a “loophole” that could enable someone to get away with bad behavior.  However, in the 2004 landmark Supreme Court decision CCH Canadian Ltd. v. Law Society of Upper Canada, the Court demolished that theory, stating that

The fair dealing exception, like other exceptions in the Copyright Act is a user’s right.  In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.  As Professor Vaver, supra, has explained, at p. 171:  “User rights are not just loopholes.  Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.”

This ruling, the basis of a newly awakened fair dealing, was resoundingly strengthened by the Court in 2012.  2012 was a big year for Canadian Copyright, as noted academic Michael Geist wrote, the Court “shook the foundations of Canadian copyright law” by issuing five decisions on copyright on one day; these decisions have been called the “Copyright Pentalogy” and showed the Court’s commitment to robust fair dealing.  On the legislative side, 2012 also saw the passage of Bill C-11, the Copyright Modernization Act.  Of particular importance in the Act was the inclusion of “education” as a class of activity that can be seen as fair dealing.  This change, alongside the Pentalogy, led many Canadian colleges and universities to adopt fair dealing guidelines that treated fair dealing like a user’s right.

However, these guidelines were subject to some controversy; fearing an erosion of their influence, Access Copyright sued York University for copyright infringement, stating that their guidelines were “authorizing and encouraging copying that is not supported by the law.”  In Quebec, a similar suit was brought by Copibec, the Quebec author’s collective, against Université Laval as well.  However, with the Board’s latest tariff decision relying so heavily on fair dealing, it seems that a strong culture of fair dealing is here to stay.  As Michael Geist recently stated “the Board Minced no words in explaining the reduction:

‘The main reason for that decrease is the fact that as a result of the decision of the Supreme Court in Alberta v. Access Copyright…This resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair-dealing provisions of the Copyright Act. These copies therefore do not generate remuneration.’”

So where does this leave us?  If you believe, as the Court and Board appear to, that fair dealing is a user right that is vital to the Canadian copyright ecosystem, then you have every right to celebrate this recent decision.  As we continue to celebrate Fair Use/Fair Dealing week we should keep in mind the history and the struggle to define and protect users’ rights and be grateful that we live in a time where the copyright balance is so deftly calibrated.

[fairdealing-blog]

Misterios da vida... part 1

Olho para os lados, sinto que não há ninguém, observo o vazio e vai muito mais além, sei que estou só , não me sinto muito bem, ninguém me nota, ninguém me escuta, ninguém quer saber se está tudo bem, eu fecho os olhos pra descansar, desligando me do meu próprio ser, a cada dia que fecho os olhos, o único desejo é de morrer, não se tem mais esperanças, e para que ter fé? Já desisti a tempos, não sei como a vida é, não dá pra dizer que não lutei, afinal eu até tentei, mas não deu certo então terminei, ela dizia me amar muito, ter um amor que jamais acabaria, e não se passou 2 meses do fim, ela já tinha outra companhia, mas isso não me abalou muito, pois já estava perdido, não contava com namorada, não contava com os pais e nem se quer com meus amigos, já vivi de cidade em cidade, ja vivi de pais em país, mas onde quer que eu ia, nunca me sentia feliz, já tentei viagem sonhos, mas vi que sonhos eu não tenho, não sentia alegria, nem era tão alegre, mas viver é o desafio que eu tenho, sempre busquei a solução, para entender o que eu sentia, e não houve um psicólogo capaz de resolver essa agonia, até que um dia uma garota , simples e comum aos padrões da sociedade, cabelos castanhos, olhos escuros, corpo magro e que tinha muita vaidade, ela era bem menor que eu, mais tinha um imenso coração, seu sorriso era lindo, mudou meu mundo e toda sua afeição, era incrível o novo jeito de olhar a vida, mudou do inferno ao paraíso, essa baixinha de 1,65 era anjo, e tornou meu mundo muito mais incrível.