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These provisions an exception to the limited monopoly given to authors of cre-
ative works. For example, news reporting, research and scholarship might involve
copying or reproducing another's work, but under Fair Use they are not considered
non-infringing.
Fair Use is subject to a four part test that looks at (1) the purpose of the use, (2)
the nature of the copyrighted work, (3) the amount and substantiality used in relation
to the work, and (4) the effect of the use on the market or value of the copyrighted
work [
19
].
In our thought experiment, Ana is creating software for commercial purposes.
We argue that under the third part of the test, that she used an insignificant portion
of the code and that the law would not protect against such a minor infraction. This
mirrors the legal principle of
de minimis non curat lex
, which means “the law does
not concern itself with trifles.” If the letter of the law has technically been violated
and the effect or damage are too small to be of consequence, the action may not
considered sufficient cause for criminal or civil proceedings. If Ana were reusing
the code for a resizable dialog box to use in a school research project, her actions
would not constitute a copyright violation under the Fair Use doctrine.
16.3.3 Scènes à faires
There is a legal principle in IP law called “scènes à faires.” It derived from French
phrase denoting “scenes that must be done” and the connotation is there are certain
elements that are mandatory to a genre. For example, a Western novel usually in-
volves some kind of chase on horseback. Scènes à faires allows creators to follow
the conventions of a genre without being subject to spurious copyright infringement
claims.
This principle can easily be extended to source code. It is an accepted practice
among programmers to borrow and re-use code. Programmers, as a community, ex-
pect information to be shared, which is why websites such as
www.codeproject.com
exist. Consider then, the act of copying and pasting the sample code. In this sense,
programming is no different than that of any form of literary or artistic creation.
“Every book in literature, science and art, borrows, and must necessarily borrow,
and use much which was well known and used before” [
20
].
We feel that this is best defense in our thought experiment, and for program-
mers in general, because it is simple and it bodes well for the future of copy-paste
programming from a legal standpoint. When developing software, often there are a
limited number of ways to do things, many of them recognized best practices. It's
similar to the idea that there are only so many ways to write a sentence with a fixed
vocabulary and a particular meaning. The are small differences can be attributed to
individual style, but the style imposed by the genre or craft are far more significant.
The principle of scènes à faires allows more source code to be available for reuse.
Once an idiom or best practice is established, it remains available for those who
follow to use it.
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