The fair use exceptions provided by the ss 107 of the United States Copyright Act are open ended and not limited to certain purposes. Hence they provide a balance between users and creators of material. Fair use allows users to access the copyright material without permission for purposes of classroom use, criticism, news reporting, scholarship, research and comment without infringing the copyright. Thus, it is advantageous to users and the general public because it enhances the utility of copyrighted materials (Landau, 2001, p. 277). To protect creators of materials from users who might be tempted to misuse this exemption and at the same time promote transformation through the use of materials, fair use is applied in consideration of four factors. In a way, these strike a balance between users and creators. While users are allowed by fair use to access copyrighted material, they must show how the use improves knowledge or contributes to the advancement of artwork. The second factor, which is the nature of copyrighted work, brings an equilibrium by protecting facts fixation or particular expressions and not facts or ideas themselves. The third factor limits the extent of material used under protection by fair use by making it less favorable to those who use the whole or a substantial amount of copyrighted work (Landau, 2001, p. 277). For example, in Harper & Row v. Nation Enterprises, the 400 words portion of Presidents Fords memoir which is 200000 words long was considered by the US Supreme Court to weigh against the defendant in consideration of the third factor because the 400 words were the heart of the work. Although this was not considered fair, it protected the creator of the material while allowing its usage. The fourth factor considers whether the use of the material will harm the value of the copyrighted work. For instance, in Sony Corp v. Universal City Studios, Universal, the copyrighter, could not demonstrate how the use of Betamax would suppress their business. This ensures that fair use does not cover practices likely to destroy the creator of the material (Landau, 2001, p. 277).
Although pharmaceutical companies have ultimate patent protection for drugs to enhance research and development of new products, legal difficulties are experienced when the drug is a derivative of a plant that was initially used as herbal medicine. Some people claim that the communities that had been using the herbal form of the drug need to be compensated (Bodeker, 2003, p. 785). Concerns of bio- piracy have increased as pharmaceutical companies invest in exploiting and subsequently patenting substances derived from plants although the said plants had been in use by individual communities as herbal medicine. For example, up to 70 patents were granted to western universities between 1994 and 1999, companies and researchers regarding different pharmaceutical properties of the Neem tree. However, after legal battles by NGOs and India farmers, European Patent Office had to revoke the patents given on the basis that patents did not entail any inventive steps because the locals had prior knowledge about all the properties of the plant (Bodeker, 2003, p. 785). The case of Diamond v. Chackrabarty brought forth the need to distinguish between discovery and invention. The decision of that case held that anything under the sun is patentable except laws of nature, physical phenomena and abstract ideas (Stenton, 2003, p.33). Section 1(2) (a) of the Patent Act 1977 depicts that extraction of processes from traditional knowledge as a discovery which is debated by several people. Although patenting of processing of traditional medicine may be necessary to enhance investment in isolation, identification and clinical trials of extracts for improvements, ethics must be applied to ensure the regular users of the herbal plant benefit (Stenton, 2003, p.37). For instance, pharmaceutical industries might subsidize the price of the processed drug to the communities that had been using the drug in its original form.
Bodeker, G. (2003). Traditional Medical Knowledge, Intellectual Property Rights & (and) Benefit Sharing. Cardozo J. Int'l & Comp. L., 11, 785.
Landau, M. (2001). Has the Digital Millennium Copyright Act Really Created a New Exclusive Right of Access: Attempting to Reach a Balance Between Users' and Content Providers' Rights. J. Copyright Soc'y USA, 49, 277.
Stenton, G. (2003). Biopiracy within the Pharmaceutical Industry: A Stark Illustration of just how Abusive, Manipulative and Perverse the Patenting Process can be towards Countries of the South. Hertfordshire Law Journal, 1(2), 30-47.
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