Maurizio Borghi “The use of the work as work: a viable test for copyright infringement?”


The notional tests for determining whether copyright in a work has been infringed rely essentially on three elements (which are spelled differently across juridical traditions), namely: the amount of taking, the kind of use that is made of the work, and whether such use is in public. The concept of ‘use’ is pivotal to copyright infringement and features expressly in important doctrines that limit the scope of infringement, such as fair use, non-commercial use or derivative use. However, the concept is nowhere defined in statutes and is rarely discussed in case law. Recent copyright scholarship has suggested that the concept of ‘use’ may provide better guidance than that of ‘copying’ in deciding controversial cases emerging with new technologies, such as the use of works in search engines, content aggregators and text mining facilities. According to such scholarship, the deciding question is not whether the work has been copied, but whether the work has been used ‘as a work’. Although sympathizing with this argument, the paper demonstrates its shortfalls in the new networked environment, and suggests an alternative understanding of the concept of ‘use’ in copyright infringement.