DoctrineDoctrine, from Latin doctrina, (compare doctor), means "a body of teachings" or "instructions", taught principles or positions, as the body of teachings in a branch of knowledge or belief system. The Greek analogy is the etymology of catechism.
Often doctrine specifically connotes a corpus of religious dogma as it is promulgated by a church, but not necessarily: doctrine is also used to refer to a principle of law, in the common law traditions, established through a history of past decisions, such as the doctrine of self-defense, or the principle of fair use, or the more narrowly applicable first-sale doctrine.
In matters of foreign policy, a doctrine is a body of axioms fundamental to the exercise of a nation's foreign policy. Hence, "doctrine,' in this sense, has come to suggest a broad consistency that holds true across a spectrum of acts and actions. Doctrines of this sort are almost always presented as the personal creations of one particular political leader, whom they are named after. Examples include the Monroe Doctrine, the Stimson Doctrine, the Truman Doctrine, the Eisenhower Doctrine, the Brezhnev Doctrine, and the less catchy Bush administration doctrine of military preemption, and the Kirkpatrick doctrine.
In the US it has become something of a tradition for each President to have his own doctrine. See list of US Presidential Doctrines.
Sometimes 'doctrine' is an ambitious word for a mere slogan: the slogan 'Peace through strength' is termed a 'doctrine' at Wikipedia.
The term also applies to the concept of an established procedure to a complex operation in warfare. The typical example is tactical doctrine in which a standard set of maneuvers, kinds of troops and weapons are employed as a default approach to a kind of attack.
Examples of religious doctrines include:
- Christian Trinity and virgin birth
- Roman Catholic transubstantiation and immaculate conception
- Pentecostal Jesus-Only doctrine
- Calvinist predestination
- Methodist Prevenient Grace
- Mormon doctrine of the Heavenly Mother
See also the Roman Catholic Congregation for the Doctrine of the Faith.
Examples of military doctrines include:
- Blitzkrieg of World War II
- Hit-and-run tactics
- Mutually assured destruction of the Cold War
- Shock and Awe
See also Hallstein Doctrine.
Many more examples can be found at Wikipedia by searching doctrine
- (doctrine and an asterisk).
The term indoctrination came to have awkward connotations during the 20th century, but it is necessary to retain it, in order to distinguish it from education. In education one is asked to stand as much as possible outside the body of accumulated knowledge and analyse it. In indoctrination on the other hand, one stands within the body of knowledge and absorbs its teachings. Compare theology and comparative religion for examples, of which many could be drawn.
Catechism
A catechism is a summary or exposition of doctrine, traditionally used in Christian religious teaching. Catechisms are doctrinal manuals often in the form of questions followed by answers to be memorized, a format that has sometimes been used in non-religious or secular contexts as well. [http://www.ourroots.ca/e/viewpage.asp?ID=282489&size=2]
Catechesis is an elementary form of religious instruction, typically oral, and traditionally under the guidance of a parent, pastor or priest, religious teacher, or other individuals in church roles (including a deacon, religious brother or sister, or nun) who poses set questions and prompts students (or disciples) toward understanding the answers given. Catechetics is the practice of this kind of instruction, or the study of it, including training in such instruction. [http://www.dict.org/bin/Dict?Form=Dict2&Database=
- &Query=catechetics] A catechist is one who engages in such religious instruction.
Traditional Format
Catechisms have, historically, typically followed a dialogue or question-and-answer format. This format calls upon two parties to participate, a master and a student (traditionally termed a "scholar"), a parent and a child. The famous 19th century Roman Catholic Baltimore Catechism is an example:
1. Q. Who made the world?
A. God made the world.
2. Q. Who is God?
A. God is the Creator of
heaven and earth, and of all things.
3. Q. What is man?
A. Man is a creature composed of
body and soul, and made to the
image and likeness of God.
Early Christian history
Borrowed from the , the term catechesis originally meant simply the oral transmission from teacher to student, instruction by dialogue. The word comes from a Greek word associated with the theater or agora; it means "to make resound, as with an echo." As with many things in Christian custom, the practice of catechizing was adapted from a similar style of instruction in the Jewish synagogues and rabbinical schools. The rabbis had the dialogue method, and the Greeks had the Socratic method, both of which informed Christian catechesis. Unlike both of these precursor influences, the Christian emphasis from the beginning was to pass on articles of faith, or definitions of belief. It is beginning with faith that Christians expected obedience to follow.
Christian tradition holds that Catechetical schools were established almost immediately by the apostles themselves. One of the most important of these schools is held by tradition to have been established by Mark the Evangelist, in Alexandria, Egypt. In his Ecclesiastic History, Eusebius recounts the legend that Mark came to Egypt during the first or third year of the Roman Emperor Claudius, and he returned to preach and evangelize in Alexandria, between 61 and 68 A.D. This is the school of theology where Clement of Alexandria and Origen were teachers. Some modern scholarship favors the theory that the four written Gospels of the New Testament were products of Catechetical schools founded by the apostles or disciples of the apostles.
Through schools such as this, summaries of doctrine were produced with a view to carefully and methodically hand down the teaching of the Church. As a summary of what must be believed, the Nicene creed was taught in the Greek churches, and the Apostles' Creed was dominant in the Latin churches; the Lord's Prayer was taught as the model of how to pray; and, the Ten Commandments were the summary of how to live. At various times and places, special chapters were added to the manuals, for instruction on the sacraments, the Athanasian Creed, the Te Deum, and other elements of the Liturgy. Lists of sins and virtues also became a common part of catechesis, in the monastaries and the churches. In the case of adult converts, this instruction preceded baptism; in the case of baptized infants, it followed baptism, and in the West culminated in their confirmation and the first communion. Baptized infants in the East were also chrismated (confirmed) almost immediately after baptism, and shortly after began receiving communion; catechism came later, often during the teenage years.
Cyril of Jerusalem left sixteen books of instructional sermons, explaining the Creed to families seeking baptism, which became standard in the Greek speaking churches. The same Cyril also has five books of instruction attributed to him, concerning the sacraments of Baptism, Confirmation in the Christian Faith, and Eucharist, for the benefit of those who have recently received one of these sacraments. In the Latin churches, St Augustine's treatise on catechizing (De catechizandis rudibus), written for teachers, came to dominate, together with his work on the basics of doctrine and prayer (Enchiridion). A good idea of what the tradition of instruction had been, can be derived from comparing these relatively early works.
After the Edict of Milan, catechesis became an increasingly greater challenge which sometimes fell into neglect, especially in the frontiers of the Empire. In 829, a council in Paris records the bishops' alarm over the neglect of catechetical instruction. Very simple instructional manuals survive, from the St Gall monks Kero (720) and Notker (912), and Otfrid of Weissenburg (870). Gerson's tract, De Parvulis ad Christum trahendis, gives another picture of what late medieval instruction was like. In 1281, the English Council of Lambeth made it a canonical rule of Church practice, for parish priests to instruct their people four times a year in the principal parts of Christian doctrine.
The best known modern catechisms of the Orthodox and Catholic traditions are not meant to be memorized. Rather, they are massive compendia of detailed explanations of doctrine. The Jerusalem Catechism of Orthodoxy is a work primarily designed for refutation of error—in the tradition of Irenaeus's Against Heresies. There are many Orthodox catechisms without obvious official authority, some of which appear to be designed for the instruction of converts especially from Protestantism. The Orthodox Faith is a four volume series that sets forth the basics of Orthodoxy. It is written by Father Thomas Hopko, dean of St. Vladimir's Seminary (Orthodox Church in America); the full text is also available [http://www.oca.org/pages/orth_chri/Orthodox-Faith/index.htm online].
Catholic catechisms
The Catechism of the Catholic Church (see below) is the catechism is most widespread use among Catholics today.
The term catechist is most frequently used in Catholicism, often to describe a lay catechist or layperson with catechetical training who engages in such teaching and evangelization. This can be in both parish church and mission contexts.
Roman Catechism
The Roman Catechism was first published in 1566 under the authority of the Council of Trent. It is unusual in that it was written as a guide for priests rather than for instruction of children or neophytes.
See the separate article: Roman Catechism.
Baltimore Catechism
Various editions of the Baltimore Catechism were the de facto standard Catholic school text in America from 1885 to the 1960s.
See the separate article: Baltimore Catechism.
Catechism of the Catholic Church
The Catechism of the Catholic Church is a work of remarkable organization and breadth, containing articles of elegant reasoning and historical insight, arranged on the classical topics, but it is not a work adapted to the capacity of the untaught, and it is not in a question and answer format.
Protestant catechisms
The catechism's question-and-answer format, with a view toward the instruction of children, was a form adopted by Protestant Christians almost from the beginning of the Reformation.
Among the first projects of the Protestant Reformation, was the production of catechisms self-consciously modelled after the older traditions of Cyril and Augustine. These catechisms showed special admiration for Chrysostom's view of the family as a "little church", and placed strong responsibility on every father to teach his children, in order to prevent them from coming to Baptism or the Lord's Table ignorant of the doctrine under which they are expected to live as Christians.
Luther
Luther's Large Catechism (1530) typifies the emphasis which the Protestants placed on the importance of knowledge and understanding of definitions, or articles of faith. Primarily intended as instruction to teachers, especially to parents, the Catechism consists of a series of exhortations on the importance of each topic of the Catechism. It is meant for those who have the capacity to understand, and is not meant to be memorized but to be repeatedly reviewed so that the Small Catechism could be taught with understanding. For example, the author stipulates in the preface:
: Therefore it is the duty of every father of a family to question and examine his children and servants at least once a week and to ascertain what they know of it, or are learning and, if they do not know it, to keep them faithfully at it.
A catechism, Luther wrote, should consist of instruction in the rule of conduct (Ten Commandments), the rule of faith (Apostles' Creed), the rule of prayer (Lord's Prayer), and the sacraments (Baptism and Communion). Luther adds:
: However, it is not enough for them to comprehend and recite these parts according to the words only, but the young people should also be made to attend the preaching, especially during the time which is devoted to the Catechism, that they may hear it explained and may learn to understand what every part contains, so as to be able to recite it as they have heard it, and, when asked, may give a correct answer, so that the preaching may not be without profit and fruit.
Luther's Small Catechism, in contrast, is written to accommodate the understanding of a small child or an uneducated person. It begins:
A. The First Commandment
You must not have other gods.
Q. What does this mean?
A. We must fear, love, and trust God more than anything.
Reformed
Calvin's 1545 preface to the Genevan catechism begins with an acknowledgement that the several traditions and cultures which were joined in the Reformed movement, would produce their own form of instruction in each place. While no effort should be expended on preventing this, Calvin argues, he adds:
: We are all directed to one Christ, in whose truth being united together, we may grow up into one body and one spirit, and with the same mouth also proclaim whatever belongs to the sum of faith. Catechists not intent on this end, besides fatally injuring the Church, by sowing the materials of dissension in religion, also introduce an impious profanation of baptism. For where can any longer be the utility of baptism unless this remain as its foundation — that we all agree in one faith?
: Wherefore, those who publish Catechisms ought to be the more carefully on their guard, by producing anything rashly, they may not for the present only, but in regard to posterity also, do grievous harm to piety, and inflict a deadly wound on the Church.
The scandal of diverse instruction, is that it produces diverse baptisms and diverse communions, and diverse faith. However, forms may vary without introducing substantial differences, according to the Reformed view of doctrine.
Genevan Catechism
John Calvin produced a catechism while at Geneva (1541), which underwent two major revisions (1545 and 1560). Calvin's aim in writing the Catechism of 1545, was to set a basic pattern of doctrine, meant to be imitated by other catechists, which would not affirm local distinctions or dwell on controversial issues, but would serve as a pattern for what was expected to be taught by Christian fathers and other teachers of children in the Church. The catechism is organized on the topics of Faith, Law, Prayer and Sacraments.
1. Master. What is the chief end of human life?
Scholar. To know God by whom men were created.
2. M. What reason have you for saying so?
S. Because he created us
and placed us in this world
to be glorified in us. And
it is indeed right that our life,
of which himself is the beginning,
should be devoted to his glory.
3. M. What is the highest good of man?
S. The very same thing.
Heidelberg Catechism
After Protestantism entered into the Palatinate, in 1546 the controversy between Lutherans and Calvinists broke out, and especially while the region was under the elector Otto Heinrich (1556-59), this conflict in Saxony, particularly in Heidelberg, became increasingly bitter and turned violent.
When Frederick III, came into power in 1559, he put his authority behind the Calvinistic view on the Lord's Supper, which denied the local presence of the body of Jesus Christ in the elements of the sacrament. He turned Sapienz College into a school of divinity, and in 1562 he placed over it a pupil and friend of Luther's colleague, Philipp Melanchthon, named Zacharias Ursinus. In an attempt to resolve the religious disputes in his domain, Frederick called upon Ursinus and his colleague Caspar Olevianus (preacher to Frederick's court) to produce a Catechism. The two collaborators referred to existing catechetical literature, and especially relied on the catechisms of Calvin and of John Lasco. To prepare the Catechism, they adopted the method of sketching drafts independently, and then bringing together the work to combine their efforts. "The final preparation was the work of both theologians, with the constant co-operation of Frederick III. Ursinus has always been regarded as the principal author, as he was afterwards the chief defender and interpreter of the Catechism; still, it would appear that the nervous German style, the division into three parts (as distinguished from the five parts in the Catechism of Calvin and the previous draft of Ursinus), and the genial warmth and unction of the whole work, are chiefly due to Olevianus." (Schaff, in. Am. Presb. Rev. July 1863, p. 379). The structure of the Heidelberg Catechism is spelled out in the second question, and the three-part structure seen there is based on the belief that the single work of salvation brings forward the three persons of the Trinity in turn, to make God fully and intimately known by his work of salvation, referring back to the Apostles' Creed as an epitome of Christian faith. Assurance of salvation is the unifying theme throughout this catechism: assurance obtained by the work of Christ, applied through the sacraments, and resulting in grateful obedience to the commandments and persistence in prayer.
Lord's Day 1.
1. Q. What is thy only comfort in life and death?
A. That I with body and soul,
both in life and death,
am not my own, but
belong unto my faithful Saviour Jesus Christ;
who, with his precious blood,
has fully satisfied for all my sins,
and delivered me
from all the power of the devil;
and so preserves me that
without the will of my heavenly Father,
not a hair can fall from my head;
yea, that all things must be subservient to my salvation,
and therefore, by his Holy Spirit,
He also assures me of eternal life,
and makes me sincerely willing and ready,
henceforth, to live unto him.
2. Q. How many things are necessary for thee to know,
that thou, enjoying this comfort,
mayest live and die happily?
A. Three;
the first, how great my sins and miseries are;
the second, how I may be delivered from
all my sins and miseries;
the third, how I shall express
my gratitude to God for such deliverance.
The Heidelberg Catechism is the most widely used of the Catechisms of the Reformed churches.
Westminster Catechisms
Together with the Westminster Confession of Faith (1647), the Westminster Assembly also produced two catechisms, a Larger and a Shorter, which were intended for use in Christian families and in churches. These documents have served as the doctrinal standards, subordinate to the Bible, for Presbyterians and other Reformed churches around the world. The Shorter Catechism shows the Assembly's reliance upon the previous work of Calvin, Lasco, and the theologians of Heidelberg. It is organized in two main sections summarizing what the Scriptures principally teach: the doctrine of God, and the duty required of men. Questions and answers cover the usual elements: Faith, the Ten Commandments, the Sacraments, and Prayer.
Q. 1. What is the chief end of man?
A. Man’s chief end is to glorify God,
and to enjoy him forever.
Q. 2. What rule hath God given
to direct us how we may glorify
and enjoy him?
A. The Word of God,
which is contained in the Scriptures
of the Old and New Testaments,
is the only rule to direct us
how we may glorify and enjoy him.
Q. 3. What do the scriptures principally teach?
A. The scriptures principally teach, what
man is to believe concerning God, and
what duty God requires of man.
Other Reformed catechisms
Oecolampadius composed the Basel Catechism in 1526, Leo Juda (1534) followed by Bullinger (1555) published catechisms in Zurich. The French Reformed used Calvin's Genevan Catechism, as well as works published by Louis Capell (1619), and Charles Drelincourt (1642).
Anglican Catechism
The Anglican Book of Common Prayer includes a brief catechism for the instruction of all persons preparing to be brought before the bishop for Confirmation. The baptized first professes his baptism, and then rehearses the principal elements of the faith into which he has been baptized: Apostles' Creed, Ten Commandments, the Lord's Prayer, and the Sacraments.
Catechist: What is your Name?
Answer: N. or M.
C. Who gave you this Name?
Answer: My Godfathers and Godmothers
in my Baptism;
wherein I was made a member of Christ,
the child of God,
and an inheritor of the kingdom of heaven.
Socinian and other sectarian catechisms
Besides the manuals of instruction that were published by the Protestants for use in their families and churches, there were other works produced by sectarian groups intended as a compact refutation of "orthodoxy".
For example, Socinians in Poland published the Rakow Catechism in 1605, using the question and answer format of a catechism for the orderly presentation of their arguments against the Trinity and the doctrine of Hell, as these were understood by the Reformed churches from which they were forced to separate. This work spread rapidly, despite efforts to censor it, and has inspired many imitators even to the present time.
Q. You said a little before that
the Lord Jesus is a man by nature,
hath he not also a divine Nature?
A. At no hand; for that is repugnant
not only to sound Reason, but also
to the holy Scriptures.
Q. Shew me how it is repugnant to sound
Reason.
A. First, because two substances indued
with opposite properties, cannot combine
into one Person, and such properties are
mortality and immortality;
to have beginning, and
to be without beginning;
to be mutable, and immutable.
Again, two Natures, each whereof
is apt to constitute a severall
person cannot be huddled into one Person.
For instead of one, there must of necessity
arise two persons, and consequently become
two Christs,
whom all men without controversie
acknowledge to be one,
and his Person one.
Baptist affiliations of congregations have at times adopted the Reformed catechisms, modified to reflect Baptist convictions, especially concerning the nature of the church and the ordinances of baptism and communion. The Anabaptists have also produced catechisms of their own, to explain and defend their distinctives. [http://mennonitechurch.ca/about/cof/]
Non-Christian catechisms
Catechisms represent an obvious, practical method of passing on instruction, and as such examples can be found in many traditions. For example, Asiatic schools of esoteric learning also used a catechetical style of instruction, as this Zodiac catechism shows:
Q. "Where is the animal, O Lanoo?
and where the Man?
A. Fused into one, O Master of my Life.
The two are one.
But both have disappeared
and naught remains
but the deep fire of my desire.
Judaism does not have a formal catechism as such, but there are a set of Jewish principles of faith that religious Jews believe that all Jews should hold.
External links
- [http://www.vatican.va/archive/ENG0015/_INDEX.HTM Catechism of the Catholic Church] from the official website of the Vatican
- [http://www.cin.org/users/james/ebooks/master/master2.htm Nazareth Master Catechism: Aquinas, Trent, Baltimore, Pius X, CCC]
- . An abridged edition for younger students.
- . The main edition.
- . An expanded edition for older students.
- . An annotated edition for teachers.
-
-
- by John Bourne
Category:Christian history
Category:Christian liturgy, rites, and worship services
Category:Christian texts
Dogma:For other senses of this word, dogma (disambiguation).
Dogma (the plural is either dogmata or dogmas) is belief or doctrine held by a religion or any kind of organization to be authoritative. Evidence, analysis, or established fact may or may not be adduced, depending upon usage.
Dogma, faith, and logic
There are some conceptual similarities between dogma and the axioms used as the starting point for logical analysis. Axioms may be shit thought of as concepts or "givens" so fundamental that disputing them would be unimaginable; dogmata are also fundamental (e.g. "God exists") yet incorporate also the larger set of conclusions that comprise the (religious) field of thought (e.g. "God created the universe"). Axioms are propositions not subject to proof or disproof, or are statements accepted on their own merits. Dogmata might be thought to be more complex, the product of other proofs. Philosophy and theology find ways to evaluate all statements, whether classified as axioms or dogmata.
Religious dogmata, properly conceived, reach back to proofs other than themselves, and ultimately to faith. Perhaps the pinnacle of organized exposition of theological dogma is the Summa Theologiae by Thomas Aquinas, who proposes this relationship between faith and objection: "If our opponent believes nothing of divine revelation, there is no longer any means of proving the articles of faith by reasoning, but only of answering his objections — if he has any — against faith" ([http://newadvent.org/summa/100108.htm I 1 8])..
Dogma in religion
Dogmata are found in many religions such as Christianity and Islam, where they are considered core principles that must be upheld by all followers of that religion. As a fundamental element of religion, the term "dogma" is assigned to those theological tenets which are considered to be well demonstrated, such that their proposed disputation or revision effectively means that a person no longer accepts the given religion as his or her own, or has entered into a period of personal doubt. Dogma is distinguished from theological opinion regarding those things considered less well-known. Dogmata may be clarified and elaborated but not contradicted in novel teachings (e.g., [http://www.biblestudytools.net/OnlineStudyBible/bible.cgi?word=Gal+1%3A8-9§ion=9&version=rhe&new=1 Galatians 1:8-9]). Rejection of dogma is considered heresy and may lead to expulsion from the religious group, although in the Christian Gospels this is not done rashly (e.g. [http://www.biblestudytools.net/OnlineStudyBible/bible.cgi?word=Mt+18%3A15-17§ion=9&version=rhe&new=1 Mt 18:15-17]).
For most of Eastern Christianity, the dogmata are contained in the Nicene Creed and the first two, three, or seven ecumenical councils (depending on whether one is a Nestorian, a Monophysite, or an Eastern Orthodox Christian). Roman Catholics also hold as dogma the decisions of 14 later ecumenical councils and a couple decrees promulgated by popes exercising papal infallibility (see, e.g., immaculate conception). Protestants to differing degrees affirm portions of these dogmata, and often rely on sect-specific 'Statements of Faith' which summarize their chosen dogmata (see, e.g., Eucharist).
In Islam, the dogmatic principles are contained in the aqidah.
See also dogmatic definition.
Dogma outside of religion
Many non-religious beliefs are often described as dogmata, for example in the fields of politics or philosophy, as well as within society itself. The term dogmatism carries the implication that people are upholding their beliefs in an unthinking and conformist fashion. Dogmata are thought to be anathema to science and scientific analysis although one could argue that the scientific method itself is a dogma for many scientists. In a similar way in philosophies such as rationalism and skepticism, although metaphysical considerations are normally not explicit in those fields, traditional religious dogmas tend to be rejected while unexamined presuppositions are sometimes upheld. In Wikipedia itself, the concept of NPOV can arguably be said to have attained the status of dogma.
When used nowadays, the word 'dogma' is usually used in a negative and derogatory manner, for example when employees talk about unpopular company policies.
Category:Religious philosophy and doctrine
Category:Epistemology
Category:Christian theology
ja:教義
Common law:For other meanings of the term, within the field of law, see common law (disambiguation).
The common law forms a major part of the law of many countries, especially those with a history as British territories or colonies. It is notable for its inclusion of extensive non-statutory law reflecting a consensus of centuries of judgments by working jurists.
History of the common law
Common law originally developed under the auspices of the adversarial system in historical England from judicial decisions that were based in tradition, custom, and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence and as developing the body of law recognizing and regulating contracts. Today common law is generally thought of as applying only to civil disputes; originally it encompassed the criminal law before criminal codes were adopted in most common law jurisdictions in the late 19th century, although many criminal codes reflect legislative attempts to codify the common law. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.
Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliable criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket, the Archbishop of Canterbury. Things were resolved eventually, at least for a time, in Henry's favor when a group of his henchmen murdered Becket. For its part, the Church soon canonized Becket as a saint.
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.
In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation) survived well into the 20th century in most jurisdictions. In the federal courts there is no separation between law and equity; Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court.
Common law legal systems
The common law constitutes the basis of the legal systems of: England and Wales, the Republic of Ireland, the states of the United States (except Louisiana), Canada (except Quebec civil law), Australia, New Zealand, South Africa, India, Sri Lanka, Malaysia, Brunei, Pakistan, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries. Essentially, every country which has been colonised at some time by Britain uses common law except those that had been colonized by other nations, such as Quebec (which follows French law to some extent) and South Africa (which follows Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law.
The main alternative to the common law system is the civil law system, which is used in Continental Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a Socialist law system.
The opposition between civil law and common law legal systems has become increasingly blurred, with the growing importance of jurisprudence (almost like case law but in name) in civil law countries, and the growing importance of statute law and codes in common law countries (for instance, in matters of criminal and commercial law).
Scotland is often said to use the civil law system but in fact it has a unique system which combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707. Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic legal systems operate in Quebec, Louisiana and South Africa. These systems are referred to as mixed legal systems.
The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co., 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)
The state of New York, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherlands -- as a punishment unique in the history of the British Empire -- they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.
Basic principles of common law
Statutes which reflect English common law are understood always to be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification
is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date.
By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the damages or compensation available are limited to those outlined in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly -- that is, limited to their precise terms -- because the courts generally recognize the legislature as being supreme in deciding the reach of judge made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism).
Where a tort is rooted in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.
Works on the common law
The definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law.
The U.S. Supreme Court judge Oliver Wendell Holmes Jr. also published a short volume called The Common Law which remains a classic in the field. In the United States, the Corpus Juris Secundum is a compendium of the common law and its variations throughout the various state jurisdictions. The American Law Institute publishes Restatements of the common law which are often cited by American courts and lawyers when they need to invoke uncodified common law doctrines.
Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and in previous court decisions. The legal writings used are called Institutional Texts and come mostly from the 17th, 18th and 19th centuries. Examples include Craig, Jus Feudale (1655) and Stair, The Institutions of the Law of Scotland (1681).
See also
- Arraignment
- Civil law (legal system)
- Common-law marriage
- English law
- Grand jury
- Jury trial
- List of legal topics
- Scots law
External links
- [http://biotech.law.lsu.edu/Books/Holmes/claw_c.htm The Common Law] by Oliver Wendell Holmes Jr.
-
- [http://www.great-legal-advice.com/criminal-law/civil-and-common-law.htm Common law]
- [http://ausicl.com The Australian Institute of Comparative Legal Systems]
Category:Legal history
ja:コモン・ロー
Fair use
The fair use doctrine is an aspect of United States copyright law that provides for the licit, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term "fair use" is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. U.S. trademark law also incorporates a "fair use" defense. While the names are the same, the doctrines are quite different.
Philippine copyright law has a fair use doctrine based largely, or even exactly, on the doctrine adopted in the United States.
Fair use under United States law
The legal concept of "copyright" was first ratified by Britain's Statute of Anne of 1709. As room was not made for the unauthorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, , excerpted here:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
:# the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
:# the nature of the copyrighted work;
:# the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
:# the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[http://www4.law.cornell.edu/uscode/17/107.html]
The four factors of analysis for fair use set forth above derive from the classic opinion of Justice Story in Folsom v. Marsh, 9 F.Cas. 342 (1841), in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The court rejected the defendant's fair use defense with the following explanation:
[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy...
In short, we must often... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.
It is important to note that once these factors were codified as guidelines in USC § 107, they were not rendered exclusive. The section was intended by Congress to restate, but not replace, the prior judge-made law. Courts are still entitled to consider other factors as well.
Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (I.1.8).
Some commentators have also suggested that some form of fair use defense is required by the First Amendment's protection of free speech, because without some amount of copying, some things simply cannot be said. This analysis applies particularly well in the case of criticism. It also reads on various other limitations on copyright's exclusive rights, particularly the scenes a faire doctrine.
Purpose and character
The first factor questions whether the use under consideration helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of, say, personal profit. In order to justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, opposed to as merely derivative. When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie", Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents (cf. the 2003 9th Circuit case Mattel Inc. v. Walking Mountain Productions). However, when Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same 'parody' defense, he lost because his work was not presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory (see Art Rogers v. Jeff Koons, 960 F.2d 301). Thus, even if a secondary work proves transformative, it must be appropriately so.
The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes," has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use" (American Geophysical Union, 60 F.3d at 921). More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative". Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use," it alone is not determinative. For example, not every educational usage is fair (see the 1914 case, Macmillan Co. v. King, although this case has only limited application since it was decided many years before the modern fair use provision became a part of the legislation).
Nature of the copied work
Although the Supreme Court has ruled that the availability of copyright protection should not depend on the artistic quality or merit of the work at issue, fair use analyses nevertheless consider certain aspects of the copied work, such as whether it is fictional or non-fictional, to be germane. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas cannot be copyrighted—only their particular expression or fixation merits such protection. (See idea-expression divide.) On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject (see Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130).
Following the decisions of the Second Circuit in Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), and in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988), whether the copied work has been previously published suddenly trumped all other considerations because of, in the words of one commentator, "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, not to publish at all." Yet some view this importation of certain aspects of France's droit moral d'artiste into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than from laws about copyright.
This debate is still open in the courts.
Amount and substantiality
The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying — entire programs for private viewing — was upheld as fair use. Conversely, in Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985), the use of less than 400 words from President Ford's memoir by a news magazine was interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial.
Prior to 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The infamously strict decision against the rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright v. Warner, 780 F. Supp. 182 (S.D.N.Y. 1991), changed practices and opinions overnight. Samples now had to be licensed, so long as they rose "to a level of legally cognizable appropriation" (see Bridgeport Music Inc. v. Dimension Films, 230 F. Supp.2d at 841). In other words, de minimis sampling was still considered fair and free because, traditionally, "the law does not care about trifles." The recent [http://pacer.ca6.uscourts.gov/opinions.pdf/04a0297p-06.pdf Sixth Circuit Court decision] in the appeal to Bridgeport Music has reversed this standing. The new rule in that Circuit is even more strict in its rendering of copyright law: "get a license or do not sample." Fair use does not come into play at all.
Effect upon work's value
The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 451 (1984), where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In the Nation case regarding President Ford's memoirs above, the Supreme Court labelled this factor "the single most important element of fair use" (471 U.S. at 566) and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music, Inc., 510 U.S. at 578 (1994), that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.
In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work. First, courts consider whether the use in question acts as a direct market substitute for the original work. In the words of the Supreme Court in Acuff-Rose Music, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur." In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers. See Video Pipeline v. Buena Vista, 342 F.3d 191 (3d Cir. 2003). On the other hand, one might well question whether Roland Barthes' S/Z clearly supersedes Honoré de Balzac's short story "Sarrasine" as a market replacement, since it reproduces the entirety of the latter, though only in short fragments followed by much critical explication by Barthes. Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-packs for college students, when a market already existed for the licensing of course-pack copies. See Princeton Univ. Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1999).
It is important to note that courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Fair use considerations may not shield a work against adverse criticism.
Practical effect of fair use defense
The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.
Fair use as a defense
Fair use is an affirmative defense to copyright infringement. This means that if the defendant's actions do not constitute an infringement of the plaintiff's rights (for example, because the plaintiff's work was not copyrighted, or the defendant's work did not borrow from it sufficiently), fair use does not even arise as an issue. However, it also means that, once the plaintiff has proven (or the defendant concedes) that the defendant has committed an infringing act, the defendant then bears the burden of proving in court that his copying should nonetheless be excused as a fair use of the plaintiff's work.
Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of frivolous lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation.
Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability.
Fair use and parody
Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. The fair use cases addressing parodies distinguish between parodies — using a work in order to poke fun or comment on the work itself — and satires — using a work to poke fun or comment on something else. Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.
In Campbell v. Acuff-Rose Music (1994), the Supreme Court recognized parody as a fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc., had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.
In a more recent parody case, Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication.
Fair use on the Internet
A recent court case, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use. On appeal, the 9th Circuit Court of Appeals found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgement after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.
Common misunderstandings
Because of the deliberate ambiguity of fair use, it is commonly misunderstood. Here are some of the more common misunderstandings with explanations of why they are wrong:
- It's copyrighted, so it can't be fair use. Fair use describes conditions under which copyrighted material may be used without permission. If a work is not copyrighted, it's in the public domain and can legally be used without regard to fair use law.
- Acknowledgement of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. Note that plagiarism is a matter of professional ethics, not of copyright — copyright law protects exact expression, not ideas, and so while citing the source for an idea prevents plagiarism, it is not necessarily needed to avoid infringing copyright if exact words are not used. On the other hand, one can plagiarize a work that is not protected by copyright.
- Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account.
- The lack of a copyright notice means the work is public domain. Not always true. United States law in effect since March 1, 1989 has made copyright the default for newly created works. For works produced between January 1, 1978 and March 1, 1989, copyright notice is required; however, registration was not required [http://www.copyright.gov/circs/circ1.html#pub]. Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the U.S. copyright office are given additional contemporary remedies which may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation and their claimed copyright on the sounds contained in their MT-32 synthesizer.
Fair use and trademark law
In the U.S., there is also a fair use defense in trademark law based on similar principles as the doctrine under copyright (such as free speech), but with different exceptions. Fair use is consistent with the more limited protection granted to trademarks, generally specific only to the particular product market and geographic area of the trademark owner.
Most trademarks are adopted from words or symbols already common to the culture (such as Apple), instead of being invented by the mark owner (such as Kodak). Courts have recognized that ownership in the mark cannot prevent others from using the word or symbol in these other senses, such as if the trademark is a descriptive word or common symbol such as a pine tree. This means that the less distinctive or original the trademark, the less able the trademark owner will be to control how it is used.
Trademarks may also be used by a nonowner nominatively—to refer to the actual trademarked product or its source. In addition to protecting product criticism and analysis, U.S. law actually encourages nominative usage by competitors in the form of comparative advertising.
Both of these exceptions require that the mark not be used by the nonowner in a way that would be likely to confuse consumers about the source of their (or the trademark owner's) product. Generally this translates into the requirement, similar to that in fair use under copyright, that no more of the trademark is used than is necessary for the legitimate purpose.
Comparison with other countries
The United States and the Philippines are the only countries with a fair use doctrine. However, comparable copyright limitations can be found in many nations' copyright statutes, though these differ in scope. Most other common law countries have a related doctrine known as fair dealing, which is defined in a constrained manner through an enumerated list of causes for exemption that allows little room for judicial interpretation. Civil law countries have codified similarly specific and narrowly drawn exceptions. Fair use, however, tends to be an open-ended legal doctrine, as statutory factors are balanced by U.S. judges on a case-by-case basis rather than strictly applied.
See also
- Berne three-step test
- Copy prevention
- Creative Commons
- Cyber law
- List of leading legal cases in copyright law
- Digital rights management
- Fair dealing
- United States Copyright Act of 1976
- :Category:Fair use images
- Wikipedia's fair use notice for text
External links and sources
- [http://copylaw.com/new_articles/fairuse.html Fair Use in a Nutshell: A Roadmap to Copyright's Most Important Exception] – By Lloyd J. Jassin; from CopyLaw.com
- [http://fairuse.stanford.edu/index.html Copyright and Fair Use] – From Stanford University Libraries
- [http://fairuse.stanford.edu/primary_materials/cases/ariba_soft.pdf Revised decision the Kelly v. Arriba Soft Corporation case] (PDF)
- [http://www.copyright.gov/title17/92chap1.html#107 Limitations on exclusive rights: Fair use] – From the US Copyright Office
- [http://www.ipwatchdog.com/fairuse_cases.html Some more key fair use cases] – From IPWatchdog website
- [http://www.copyright.iupui.edu/checklist.pdf Checklist for fair use] (PDF) – From Purdue University
- [http://www.nolo.com/lawcenter/ency/article.cfm/objectID/C3E49F67-1AA3-4293-9312FE5C119B5806 "When Copying Is Okay: The 'Fair Use' Rule"] – From Nolo.com/Law for All
- [http://www.jamesshuggins.com/h/oth1/parody.htm Parody and Fair Use] With links to several rulings, including the [http://www.benedict.com/Audio/crew/crew.aspx Pretty Woman] parody.
- [http://cyber.law.harvard.edu/events/SignalNoiseBBFINAL.pdf A Practical Guide to Fair Use Doctrine] (PDF) – from [http://cyber.law.harvard.edu/sn/ Signal or Noise 2K5] at Harvard University
- [http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm A guide to the circumstances of fair use]
- [http://en.wikipedia.org/wiki/Wikipedia:Fair_use Wikipedia:Fair use], Wikipedia's guidance on fair use of its material
Category:United States intellectual property law
Category:Copyright law
Category:Equitable_defenses
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ja:フェアユース
simple:Fair use
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First Sale DoctrineThis page is about the first-sale doctrine as applied to copyright. There is also an analagous first-sale doctrine applicable to patents.
The first-sale doctrine is an exception to copyright codified in the US Copyright Act, section 109. The doctrine of first sale allows the purchaser to transfer (i.e. sell or give away) a particular, legally acquired copy of protected work without permission once it has been obtained. That means the distribution rights of a copyright holder end on that particular copy once the copy is sold. Originally (back in 1909), the codification applied to copies that had been sold (hence the "first sale doctrine), but in the 1976 Act it was made to apply to any "owner" of a lawfully made copy or phonorecord regardless whether it was first sold. So, for example, if the copyright owner licenses someone to make a copy (such as by downloading), then that copy (meaning the tangible medium of expression onto which it was copied under license, be it a hard drive or removable storage medium) may lawfully be sold, lent, traded or given away.
The doctrine of first sale does not include renting and leasing phonorecords (recorded music) and certain types of computer software, although private non-profit archives and libraries are allowed to lend these items provided they include a notice that the work may be copyrighted on the copy.
US copyright case law supports that consumers cannot make copies of computer programs contrary to a license, but may resell what they own. This however is conflicting with both section 117 and 109, and the case law itself is conflicting depending on which circuit the case was heard in.
Cases involving the first-sale doctrine
In 1979 Universal City Studios, Inc. et al. v. Sony Corporation of America Inc. et al. (often called "The Betamax Case"), resulted in a ruling that because the VCR was capable of substantial noninfringing uses, copyright owners who objected to the infringing uses people could make of it could not prevent its sale. The lawfulness of the VCR, coupled with the high price of the first few movies on VHS and Betamax tapes ($50 each) resulted in an explosion of the home video rental market -- a practice in which retailers bought the expensive tapes and rented them at a fraction of the cost, thereby making them affordable for the masses and (in a surprise to movie studios) stimulated huge sales volume to video retailers. Within a short time, the home video industry that motion picture studios had tried to snuff out in the crib was generating over half of the domestic revenue from all other sources combined. Coupled with the first sale doctrine, the Betamax ruling meant that Beta and VHS tapes could be purchased by video rental stores, and then rented out to the public, without permission from the copyright holders.
In 1983 the Consumer Video Sales/Rental Amendment of 1983 (1993, H.R. 1029/S. 33) tries to require anyone who wanted to rent out videotapes to obtain prior permission from the copyright owner. This bill was defeated.
In 1997 in Novell v. Network Trade Center 25 F. Supp. 2d 1218 (C.D. Utah 1997)[http://cyber.law.harvard.edu/openlaw/DVD/cases/Novell_v_NTC.html] purchaser is an "owner" by way of sale and is entitled to the use and enjoyment of the software with the same rights as exist in the purchase of any other good. Said software transactions do not merely constitute the sale of a license to use the software. The shrinkwrap license included with the software is therefore invalid as against such a purchaser insofar as it purports to maintain title to the software in the copyright owner. Under the first sale doctrine, NTC was able to redistribute the software to end-users without copyright infringement. Transfer of a copyrighted work that is subject to the first sale doctrine extinguishes all distribution rights of the copyright holder upon transfer of title.
In 1998 in Quality King Distributors Inc., v. L'anza Research International Inc. (1998, WL 9625) [http://supct.law.cornell.edu/supct/html/96-1470.ZO.html] there was a unanimous ruling: in a case involving distribution of hair care products bearing a copyrighted label, the Supreme Court found that the doctrine does apply to importation into the US of copyrighted works (the labels) which were made in the US, then exported. This is significant for grey market imports of software, books, movies or other copies of copyrighted works, where the price outside the US may be lower than the price inside. The importation of goods first manufactured outside the US under the copyright laws of other countries was specifically excluded from that decision, leaving undecided whether goods "lawfully made" under the Copyright Act but made outside the United States also benefit from the first sale doctrine. Until that is decided, copyright holders are free to take action against foreign distributors who sell products made in their region into the US market.
The first-sale doctrine and computer software
The first-sale doctrine as it relates to computer software is an area of legal confusion. Software publishers claim the first-sale doctrine does not apply because software is licensed, not sold, under the terms of an End User License Agreement (EULA). The courts have issued contrary decisions regarding the first-sale rights of consumers. Bauer & Cie. v. O'Donnell and Bobbs-Merrill Co. v. Straus are two US Supreme court cases that deal with copyright holders trying to enforce terms beyond the scope of copyright and patent, but calling it a license. Many state courts have also ruled that a sale of software is indeed a sale of goods under the UCC at the point where funds are exchanged for the physical copy of the software. The licensed and not sold argument is held mostly in the 8'th and 7'th circuits while other circuits tend to support the opposite, thus leading to conflicting court opinions such as seen in the third circuit Step-Saver Data Systems, Inc. v. Wyse Technology and fifth circuit Vault Corp. v. Quaid Software as opposed to the eighth circuit Blizzard v. BNETD (Davidson & Associates v. Internet Gateway Inc (2004)), which have not been resolved by higher courts.
District courts in California and Texas have issued decisions applying the doctrine of first sale for bundled computer software in Softman v. Adobe (2001) and Novell, Inc. v. CPU Distrib., Inc. (2000) even if the software contains a EULA prohibiting resale. In the Softman case, after purchasing bundled software (A box containing many programs that are also available individually) from Adobe Systems, Softman unbundled it and then resold the component programs. The California District Court ruled that Softman could resell the bundled software, no matter what the EULA stipulates, because Softman had never assented to the EULA. Specifically, the ruling decreed that software purchases be treated as sales transactions, rather than explicit license agreements. In other words, the court ruling argued that California consumers should have the same rights they would enjoy under existing copyright legislation when buying a CD or a book.
In a more recent case involving software EULA's and first-sale rights [Davidson & Associates v. Internet Gateway Inc (2004)][http://www.freedom-to-tinker.com/doc/2004/bnetd_30sep.pdf], the US District Court for the Eastern District of Missouri issued a ruling which appears to contradict the position of the Californian and Texan courts. The first sale reasoning of the California District Court in Softman v. Adobe was challenged, with the court ruling '"The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement.' In addition, the Court found the plaintiffs EULA, which prohibited resale, was binding on the defendants because 'The defendants .. expressly consented to the terms of the EULA and TOU by clicking "I Agree" and "Agree."' This runs counter to Softman v. Adobe. The difference in these rulings has yet to be resolved by a superior court.
The Record Rental Amendment of 1984 and The Computer Software Rental Amendments Act of 1990
Section 109 was amended by both acts to prevent all owners of software copies or phonorecords, except non-profit educational institions or non-profit libraries, to dispose of said copies through the acts of rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending unless authorized by the owners of the copyright.
The acts specifically excluded:
- A computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or
- A computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.
The privileges to sell or otherwise dispose of the possession of any particular copy or phonorecord and to display that copy publicly one image at a time, including through projection, one image at a time where the copy is physically located do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, without acquiring ownership of it.
However, section 109 specifically leaves the copyright holder bound by the Clayton Act if the copyright holder allows; rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending.
3. Nothing in this subsection shall affect any provision of the antitrust laws. For purposes of the preceding sentence, "antitrust laws" has the meaning given that term in the first section of the Clayton Act and includes section 5 of the Federal Trade Commission Act to the extent that section relates to unfair methods of competition.
This leaves the copyright holder, through the terms of the EULA and TOS that many software and music companies favor in order to bypass section 109, liable for Clayton Act violations through the fact that they claim that the purchase of the software or music is not a purchase and that the end user does not own the software but has rights to use it, thus engaging in other acts or practice in the nature of rental or lease. While many states have changed their contract laws so that a sale of software is defined under the UCC, in response to UCITA through so called Anti-UCITA bills, so a purchase of software is a sale under the UCC at the point of purchase, thus the purchaser owns the software at the time of purchase and the EULA terms imposed after the sale, if not disclosed prior to the sale, are unenforcebale, other states have not.
Under the Clayton Act it is unlawful to:
- Enter into an agreement not to use goods of competitors;
- Discriminate in rebates, discounts, or advertising service charges;
- Discriminate in favor of one purchaser against another purchaser;
- Pay or contact for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities;
- Pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof, except for services rendered in connection with the sale or purchase;
- Discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce; or
- Discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms.
Section 109 includes the language "or by any other act or practice in the nature of rental, lease, or lending" and as having rights to use property but not own is in the nature of rental, lease, or lending they are subject to the Clayton Act. Through the use of the EULA and TOS which disclaim that the software is not owned but grants rights to use the property in order to preclude consumers first sale rights, they increase their liability. Most software companies and some music companies often engage in practices of discriminatory pricing, enter into "exclusive" contracts where in exchange for a discount they agree not to use competitors goods/services, or in the case of music services favor one company or another to distribute thus violating the Clayton Act in some manner or another.
Microsoft was countersued in Microsoft Corp v. Zamos (Case: 5:04-cv-02504) for violating the Clayton Act. In Microsoft v. Zamos, after unsuccessfully trying to return legally acquired unopened copies of Microsoft Software purchased at a student bookstore, as specified in the Microsoft EULA, Zamos sold the software on EBay for a profit of $140.00 . Microsoft investigators sent a message to Zamos, through eBay's website, asking whether the disk containing the software included the phrase "not for retail or OEM distribution." Zamos confirmed by return email the same day that the disk did include the phrase. Microsoft then sued Zamos claiming that "Microsoft has suffered and will continue to suffer substantial and irreparable damage to its business reputation and goodwill as well as losses in an amount not yet ascertained... Defendant's acts of copyright infringement have caused Microsoft irreparable injury." and sought legal fees and the profit from the sale.
Zamos responded on Jan 3, 2005 by countersuing Microsoft with Clayton Act charges and further charged that, "Microsoft purposely established and maintained a sales and distribution system whereby rightful rejection and return of merchandise that is substantially non-conforming is either impossible or practically impossible due to the ineptness of its employees, unconscionable policies, malicious intent and deceptive practices," thus engaging in fraud and violating the Consumer Sales Practice Act.
Microsoft offered to drop the case when local Ohio papers carried the story. Zamos however refused to drop the case until Microsoft apologized and paid for the cost of copies of legal documents at the local copy shop. In March 2005, Microsoft and Zamos settled, the settlement included a non-disclosure agreements with regards to the settlement terms.
See also
- Copyright infringement
- Exhaustion of rights (similar to the "First-sale doctrine" in EU law)
- Restrictive covenant
- Digital rights management
- Limitations on exclusive rights: Computer programs
External links
- [http://www.copyright.gov/title17/92chap1.html#109 Full text of the Statute]
- [http://cr.yp.to/softwarelaw.html Rights of software users]
- [http://www.oag.state.ny.us/press/2003/jan/jan17a_03.html NY State court decision punishing Network Associates for restrictive software licensing]
- The VSDA [http://www.vsda.org (Video Software Dealer's Association) ]'s list of [http://www.vsda.org/Resource.phx/vsda/government/issues.htx lobbying priority issues] includes protection of the First Sale Doctrine.
- Explanation of the [http://www.museum.tv/archives/etv/B/htmlB/betamaxcase/betamaxcase.htm "Betamax Case"]
- Quality King Distributors, Inc. v. L'anza Research International, Inc., 1998 WL 96265 [http://supct.law.cornell.edu/supct/html/96-1470.ZS.html syllabus (summary)], [http://supct.law.cornell.edu/supct/html/96-1470.ZO.html Court decision written by Justice Stevens], [http://supct.law.cornell.edu/supct/html/96-1470.ZC.html Justice Ginsburg's Concurrence] and [http://www.bc.edu/bc_org/avp/law/st_org/iptf/headlines/content/1998040801.html 1998 B.C. Intell. Prop. & Tech. F. 040801 report of the decision]
- [http://www.freedom-to-tinker.com/doc/2004/bnetd_30sep.pdf Davidson & Associates v. Internet Gateway Inc ruling]
- [http://cyber.law.harvard.edu/ilaw/Contract/vault.htm Vault Corp. v. Quaid Software]
- [http://www.eff.org/IP/Emulation/Blizzard_v_bnetd/ Blizzard v BnetD]
Category:Copyright lawCategory:United States intellectual property law
Monroe Doctrine.]]
The Monroe Doctrine, expressed in 1823, proclaimed the United States' opinion that European powers should no longer colonize the Americas or interfere with the affairs of sovereign nations located in the Americas, such as the United States, Mexico, and others. In return, the United States planned to stay neutral in wars between European powers and in wars between European powers and their colonies. However, if these latter type of wars were to occur in the Americas, the U.S. would view such action as hostile toward herself. The doctrine was issued by President James Monroe during his seventh annual address to Congress. It was accepted with doubt first, then with enthusiasm, because finally, the Americans were their own masters.
The doctrine was conceived by its authors, especially John Quincy Adams, as a proclamation by the United States of moral opposition to colonialism, but has subsequently been re-interpreted in a wide variety of ways, including by President Theodore Roosevelt as a license for the U.S. to practice its own form of colonialism (see Roosevelt Corollary).
Background
The end of the Napoleonic Wars in 1815 marked the breakup of the Spanish Empire in the New World. Between 1815 and 1822 José de San Martín led Argentina, Chile and Peru to independence, while Simón Bolívar in Gran Colombia guided his country out of colonialism. The new republics sought — and expected — recognition by the United States, and many in the United States endorsed that idea.
But President James Monroe and his secretary of state, John Quincy Adams, were not willing to risk nations they did not know would survive. Some say that from their point of view, as long as the other European powers did not intervene, the government of the United States could just let Spain and her rebellious colonies fight it out. Others contend that by acknowledging the wars and declaring neutrality, they were recognizing the legitimacy of the new nations. This assertion is backed up by U.S. sales of naval vessels to the rebel armies.
The United Kingdom was torn between monarchical principle and a desire for new markets; South America as a whole constituted, at the time, a much larger market for British goods than the United States. When Russia and France proposed that Britain join in helping Spain regain her New World colonies, Britain vetoed the idea.
The United States was also negotiating with Spain to purchase Florida, and once that treaty was ratified, the Monroe administration began to extend recognition to the new Latin American republics — Argentina, Chile, Peru, Colombia and Mexico were all recognized in 1822.
In 1823, France invited Spain to restore Bourbon to power, and there was talk of France and Spain warring upon the new republics with the backing of the Holy Alliance (Russia, Prussia and Austria). This news appalled the British government — all the work of James Wolfe, William Pitt and other eighteenth-century British statesmen to get France out of the New World would be undone, and France would again be a power in the Americas.
British Foreign Minister George Canning proposed that the US and the UK join to warn off France and Spain from intervention. Both Thomas Jefferson and James Madison urged Monroe to accept the offer, but John Quincy Adams was more suspicious. Adams also was quite concerned about Russia and Mexico's efforts to extend their influence over the joint British-American claimed territory of Oregon Country (see New Albion).
At the Cabinet meeting of November 7, 1823, Adams argued against Canning's offer, and declared, "It would be more candid, as well as more dignified, to avow our principles explicitly to Russia and France, than to come in as a cockboat in the wake of the British man-of-war."
He argued and finally won over the Cabinet to an independent policy. In Monroe's Annual Message to Congress on December 2, 1823, he delivered what we have come to call the Monroe Doctrine. Essentially, the United States was informing the powers of the Old World that the Americas were no longer open to European colonization, and that any effort to extend European political influence into the New World would be considered by the United States "as dangerous to our peace and safety." The United States would not interfere in European wars or internal affairs, and expected Europe to stay out of the affairs of the New World.
This explicitly stated intent was contradicted by cooperation with European powers in the repeated re-occupation of various territories of the island of Hispaniola, regions of which were in this period variously known as Santo Domingo and Haiti. Both France and Spain were interested in re-claiming their territories in Hispaniola, or re-exerting their influence, although Spain was more successful in the 19th century. In practice, the Monroe Doctrine sided with whatever side of Caribbean conflicts favoured the United States' short-term economic interests, rather than definitively drawing a barrier against European interventionism.
Legacy
Although it would take decades to coalesce into an identifiable policy, John Quincy Adams did raise a standard of an independent U.S. foreign policy so strongly that future administrations could not ignore it. One should note, however, that the policy succeeded because it met British interests as well as those of the United States and, for the next 100 years, was secured by the backing of the Royal Navy.
The first use of the yet unnamed doctrine was in 1836, when Americans objected to Britain's alliance with Texas on the principle of the Monroe Doctrine.
On December 2, 1845, US President James Polk announced to Congress that the principle of the Monroe Doctrine should be strictly enforced and that the United States should aggressively expand into the West (see Manifest Destiny).
In 1852 some politicians used the principle of the Monroe Doctrine to argue for forcefully removing the Spanish out of Cuba.
Between 1864 and 1867, Napoleon III invaded Mexico and set up a puppet regime, and Americans proclaimed this as a violation of "The Doctrine" (See Maximilian Affair). This was the first time the Monroe Doctrine was widely referred to as a "Doctrine".
In the 1870s, President Ulysses S. Grant extended the Monroe Doctrine, saying that the U.S. will not tolerate a colony being transferred from one European country to another.
In 1895, U.S. Secretary of State Richard Olney extended the Monroe Doctrine to give the U.S. authority to mediate border disputes in South America. This is known as the Olney interpretation.
The Drago Doctrine was announced in 1902 by the Foreign Minister of Argentina. Extending the Monroe Doctrine, it set forth the policy that no European power could use force against an American nation to collect debt.
In 1904, President Theodore Roosevelt added the Roosevelt Corollary to the Monroe Doctrine, which asserted the right of the U.S. to intervene in Latin America. This is the largest extension that has ever been added to the Monroe Doctrine.
In 1930 the Clark Memorandum was released, concluding that the Doctrine did not give the United States any right to intervene in Latin American affairs when the region was not threatened by Old World powers, thereby reversing the Roosevelt Corollary.
President John F. Kennedy at an August 29 1962 news conference:
The Monroe Doctrine means what it has meant since President Monroe and John Quincy Adams enunciated it, and that is that we would oppose a foreign power extending its power to the Western Hemisphere, and that is why we oppose what is happening in Cuba today. That is why we have cut off our trade. That is why we worked in the OAS and in other ways to isolate the Communist menace in Cuba. That is why we will continue to give a good deal of our effort and attention to it.
Criticism
Some have interpreted the Monroe Doctrine as isolationist in intent - see United States isolationism. Others allege that, in practice, the Mon |
