The Philosophy behind Fair Use: Another Step towards Utilitarianism

• Author: Giovanni Tamburrini/Sergey Butakov
• Pages: 190-202

JICLT

Journal of International Commer cial Law and Technology

Vol.9, No.3 (2014)

190

The Philosophy behind Fair Use: Another Step

towards Utilitarianism

Giovanni Tamburrini

Department of Law, SolBridge

International School of Business,

Daejeon, South Korea

giovanni@solbridge.ac.kr

Sergey Butakov

Information Systems Security

Concordia University College of Alberta,

Edmonton, Canada

sergey.butakov@concordia.ab.ca

Abstract. iParadigms, a company involved in plagiarism detection, was hold not

liable for the unauthorized use and ar chival of students’ papers. Both the District and

Appellate Courts of Virginia, in fact, maintained that the exception of fair use applied to the

copyright infringement action. As the relevant facts represent a novelty in case law, it

might plausible the hypothesis that iParadigms precedent is not going to be followed in

forthcoming cases. This in vestigation is an attempt to appreciate the possibilities that such

an event could happen. In particular, the attention is focused on the special nature of t he

Copyright Act which is simultaneously backed by opposite theoretical backgrounds such as

utilitarianism and moral desert as well as personhood theories, among others. The

prevailing of one theory over another shall depend on h ow liberally or strictly the fair use

doctrine shall be interpreted. Despite findings demonstrate judges have applied the fair use

doctrine according to the correct conceptions of justice, the discussion ends up

recommending a new system of plagiarism detection that drastically reduces th e likelihood

of copyright infringement actions.

1. Introduction

.

The problem of plagiarism is not something new that the digital revolution has brought to education1 and

to many other human activities. Yet, one cannot deny that the digitalization of life has made plagiarism

much simpler: the information is just few clicks away.

There are several categorizations of plagiarism which basically follow what has been plagiarized in a

given case: a song, industrial design, or just text. This paper will be focusing on text plagiarism: the

unauthorized and unreferenced copying of someone’s texts.

Text plagiarism is indeed a burning issue in education. Studies sh ow that the problem is common to

many educational institutions regardless of the socio-economic development l evel of the country2. It is

true: plagiarism detection is a very labour intensive task3 which requires two major steps: 1) narrowing

1 Chandrasoma, R., C. Thompson, and A. Pennycook. (2004). Beyond plagiarism: transgressive and nontransgressive

intertextuality. Journal of Language, Identity, and Education, Volume 3(Issue 3) p. 171–93.

2 Jensen, L.A., Arnett, J.J., Feldman, S.S. & Cauffman, E. (2002). It’s wrong, but everybody does it: Academic

dishonesty among high school and college students. Contemporary Educational Psychology, Volume 27( Issue2), p.

209-228

Teferra, D. (2001). Academic dishonesty in African universities-trends, challenges, and repercussions an Ethiopian

case study. International Journal of Educational Development, Volume 21(Issue2), p. 163–178.

3 Mishra, R.K., & Ramesh R. (2006). IPR, Plagiarism and the Text Data Security Pyramid. Journal of Intellectual

Property Rights, Volume 11, p. 326-329