Fair use or misuse of Intellectual Property Rights? A debacle uncovered

In our fast pacing, tech-savvy world, every person has the right over creations of their minds- be it inventions, literary and artistic works, or any other commercial activity. Intellectual property (IP) is the product of the human intellect which models creativity concepts[1]. Outlined in the Universal Declaration of Human Rights[2], these rights protect a person’s right to any scientific, literary or artistic productions. However, there is a caveat attached to protecting one’s IP rights, i.e., fair and reasonable use of such rights.

Fair use doctrine states that one can have limited access to copyright material without acquiring permission from the copyright holder. What is fair and reasonable has been set by the Federal Court of the US in many precedents[3]. The factors that are considered vary on a case-to-case basis but judges consider the undermentioned criteria-

  1. The purpose of your copyright use
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion borrowed, and
  4. The effect of such usage on the potentially relevant market.[4]

One of the widely publicised cases, Google, Inc. v. Oracle, Inc., often dubbed as the “copyright case of the century”[5] was recently up against the docks of the US Supreme Court, wherein Google filed a petition asking the court to review the Federal Circuit decisions. The genesis of the case begins with Oracle accusing Google of stealing the code of its Java language for Google’s Android operating system[6] and stating that Google “committed an egregious act of plagiarism” because it did not officially license the computer language. Google states that application-program interfaces (API) should not be copyrightable as it would hamper innovation for future developments in the technological field and would ultimately stifle innovation.  It further claims that it is within the ‘fair use doctrine’. In the litigation that followed, the federal appellate courts have twice sided with Oracle, rejecting Google’s defence[7].

Google filed a petition on Oct 6, 2014, asking the US Supreme Court to review the Federal Circuit’s decision. In May 2016, a jury unanimously ruled in favour of Google that the use of Java APIs was fair use[8]. This decision was once again challenged by Oracle and the decision was reversed by the district court. Google again filed a petition before the Court to rehear the case but was denied by the Federal Circuit in August 2018.

In January 2019, Google filed a petition before the US Supreme Court to review the decision. Google’s argument is dangerous in the sense that if the court rules in its favour, China’s relentless IP theft would not be countered. According to some reports, Chinese IP theft costs the US around $225 billion- $600 billion per year[9]. If the Court gives a pro-Google ruling, the ongoing negotiations between the US and China would exacerbate the problem further. Due to the outbreak of the coronavirus, the Supreme Court has further pushed the dates. If Google wins this monstrous legal battle of ten years, it would hinder creativity and entrepreneurship in the long run and thwart the nation’s attempt to counter China’s IP theft which would be detrimental to IPR globally. The tide that time takes is to be seen now.

[1] What is IPR?, Dubai Customs Services, <https://www.dubaicustoms.gov.ae/en/IPR/Pages/WhatIsIPR.aspx>, assessed on 19th Mar, 2020
[2] Article 27, Universal Declaration of Human Rights, 1948
[3] Hustler Magazine, Inc. v. Moral Majority, Inc., 606 F. Supp. 1526 (C.D. Cal., 1985). Wright v. Warner books, Inc., 953 F.2d 731 (2d Cir. 1991.).
[4] Measuring Fair Use: The Four Factors, Stanford University Libraries, < https://fairuse.stanford.edu/overview/fair-use/four-factors/>, assessed on 19th Mar, 2020
[5] Josh Hammer, Google’s Supreme Court bid to legalize intellectual property theft, New York Post, < https://nypost.com/2020/03/12/googles-supreme-court-bid-to-legalize-intellectual-property-theft/> , assessed on 19th Mar, 2020
[6] Adi Robertson, The Supreme Court will hear Google and Oracle’s nearly decade-long copyright fight, The Verge, < https://www.theverge.com/2019/11/15/20946398/oracle-google-java-copyright-lawsuit-trial-supreme-court-request>, assessed on 19th Mar, 2020
[7] Supra, note 5
[8] Oracle v. Google, Eff Organisation, < https://www.eff.org/cases/oracle-v-google>, assessed on 19th Mar, 2020
[9] Yukon Huang, Jeremy Smith, China’s Record on Intellectual Property Rights Is Getting Better and Better, < https://foreignpolicy.com/2019/10/16/china-intellectual-property-theft-progress/>, assessed on 19th Mar, 2020

Shreya Sahi

Shreya is a student of Symbiosis Law School- Pune and is in her first year of the five year BBA LLB Hons. course.
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