Fair use of Intellectual property--论文代写范文精选

正如许多知识产权法律的解释,从而导致对各种法规的辩论。了解知识产权法律，即使是律师负责维护。许多问题在围绕版权和所有权是否被侵犯。下面的essay代写范文进行详述。

Abstract
Due to a major proliferation in the modes of publishing creative works and the access the average individual has to them, protection has become more difficult. The Internet and globalization have played a major part in the distribution of copyrighted and other intellectual material worldwide. The effect of the World Wide Web has been to allow people from countries around the world to access intellectual content that may be copyright protected. Many of these countries do not have strictly enforced IP laws, and it may be difficult for the work's owner to find out when someone across the world is using the work. Contrary to popularly held belief, a lot of the material on the Internet is not in the public domain. 

A subtle distinction exists here: material is available for the public to view, but should not be copied or used in any manner. Similarly to buying a book, you can read it, but you cannot copy it or control the rights to its content. As with many laws, IP laws are open to multiple interpretations, which can lead to debate on various statutes. Understanding IP laws can be complicated not only for lay people, but even for lawyers and those charged with upholding them. Many questions surround the ownership of copyright and whether it has been infringed. The creator of the original work is generally regarded as the owner, but this may not be true in cases where the authorship of the work was undertaken as part of employment. In this case, the employer retains the rights to the IP. In the case of work for hire, which means the employee works under contract specifically for the creation of the work, rights of authorship and ownership usually go to the employer. If the work is created outside the scope of employment, the employee retains all rights. 

Since all protected work is typically meant for publication in some form -- for example, the Internet, books, research databases, or magazines -- most of these publishers demand some rights over the work in exchange. The author of the work can trade in the rights of the IP via licensing or selling and typically reach some sort of settlement with the publishing party. Thus, a work may have more than a single owner, and different parties can have different rights over it. It follows from this statement that the concept of owner and author are distinct. One important difference is that, while an owner may claim economic right over the work, the author retains moral right. Economic rights imply that all commercial proceeds from the use of the work accrue to the owner in the form of royalties. Moral right is intrinsic; it accrues to the author by virtue of creation, acknowledges the author, and protects the integrity of the work. Moral right prevents unauthorized distortion of the work in ways not intended by the author at the time of creation. These rights are treated differently in every country, however, making jurisdiction extremely difficult at times. The main organizations that monitor, control, manage, license, and promote the organized sharing of IP rights are the U.S. 

Copyright Office, the WIPO, the U.S. Patent and Trademark Office, and the Copyright Clearance Center. Due to the slightly ambiguous nature of many of the IP laws and the frequent changes in technology and science, establishing clear boundaries can sometimes prove problematic. The issue is two pronged: (1) who owns the copyright (or disputes regarding ownership) and (2) has it been infringed by an outside party using the work? The letter of the law is at times unclear or lacking in complete definition, and to compound this issue, progress in technology opens up new viewpoints and loopholes that cause the area of IP to be murky. The Supreme Court has ruled that pure facts are not subject to copyrighting attempts and that work has to be completely original to be protected by copyright (Moal-Grey, 2000). 

Courts are frequently used to decide IPrelated disputes, due to different interpretations by legal counsel. The court has the job of balancing the rights of the owner or author along with the interests of the public. The public has a "right to know" and must not be denied the right to knowledge for too long a period. For instance, if an author publishes a work at the age of thirty and dies at sixty, the law indicates the copyright protection over the work will continue for the next seventy years after the author's death, effectively keeping the work out of the public domain for a hundred years. A question arises: is this fair to the public and does the public need access to this knowledge for important reasons? 

One of the main arguments against the long period of protection is that new authors need access to older research work to create new works and encourage the progress of science, technology, and the human condition. So how vital is the protected content and how much is the new researcher willing or able to pay for it? If a new author does not have funds to pay for the materials or to file and win a court case, does this limit the amount of research in that field of study? We must encourage and reward creativity, but how much reward is enough? These are issues thrown up in the debate. Resorting to the courts is a retrospective remedy, and the legislative system seeks to ensure that the issues are adequately addressed in order to reduce the amount of litigation. 

Copyright infringement is a serious crime, carrying a fine from $200 to over $150,000, and it can include prison time. So it is essential to take measures to ensure that one's work does not challenge the rights of another party. Generally, when work is copied or used by individuals for personal use, the owner is likely to take a lenient view and not pursue legal recourse. Economic benefit is an entire other matter, however. While many educators feel they do not personally benefit from the use of copyrighted material, if it is used in a paid program of any type, it is enriching the course curriculum for which the student is ultimately paying. Therefore, it is of economic benefit to the university and may be counted as infringement of the copyright.

What is fair use? 
While the right to frame laws protecting the creative works of inventors is endowed to Congress by an authority no less than the Constitution, the same national document qualifies that right by ensuring that these rights are meant "to promote the progress of science and useful arts." This clearly indicates that IP laws must work for the ultimate good of society and the American people. Lawmakers have been striving to reach a balance between the interests of the two parties -- the creator and the public -- and from this effort was born the fair use doctrine. It is absolutely critical to understand the concept of fair use, especially in the context of education. Far too many educators view almost any material as fair game, simply because it is being used in an educational setting. Yet, this is clearly not the meaning of fair use. 

In 1851, a well-known magazine, The Economist, echoed this widely held public view: "The granting [of] patents 'inflames cupidity,' excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits…The principle of the law from which such consequences flow cannot be just" (Economist 2005). About a hundred years before this time, Adam Smith is said to have referred to patents as necessary evils and claimed they should be handed out cautiously and scarcely. Economists of the time and many educators and detractors since have argued against protection of IP as providing a temporary monopoly to the creator or owner of the work. The Legislature struggles to define what is fair for both sides, and the judicial doctrine of fair use, codified under Section 107 of the U.S. 

Copyright Act, is the source for all interpretation. The doctrine is worded fairly loosely, but allows for limited uses of material that is protected by IP laws, without obtaining the permission of the owner. Fair use attempts to establish certain uses that, in specified and limited ways, are justifiable in order to achieve a greater good. One of the problems is that fair use has not been defined in the Section, but the determining factors of whether the doctrine applies have been codified. The four factors of determining fair use are: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work (Nemire, 2007). 

Although educators rejoice in the fair use doctrine and frequently misunderstand or misinterpret it, the factors above clarify that it gives restricted and limited access only to certain works. Fair use has continued to be the best defense in IP-rights infringement battles since it was first used successfully in Foison v. Marsh in the Supreme Court in 1841. But an educator should never look at the doctrine of fair use as a loophole, because that is not its intention. It is instead an allowance given by the law to use material in ways that would otherwise be considered infringement, and it is intended to be used only in conjunction with a clearly defined educational objective. The objective and the need to use the material need to be identified and outlined in the curriculum in order for the use to be fair.（essay代写)

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