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Hastings Constitutional Law Quarterly

Abstract

The proliferation of web mashup websites, which combine information from various online sources into new integrated works, has spurred the emergence of a mashup industry and a culture that uses the medium as a new avenue for expression and communication. By remixing content and presenting information in new ways, web mashups can benefit their creators, consumers, and even the public at large. However, concerns regarding possible copyright infringement have also become more prominent as web mashup creators incorporate greater amounts of online data and content-which may belong to other copyright holders-into their composite works with increasing ease. To determine whether copyright law places proper limitations on web mashup creators, the interests of all involved parties should be considered.

This note examines whether the utility and prevalence of web mashups in our society warrant a copyright exemption for web mashup creators. This inquiry contains both a constitutional and an international dimension. The Constitution promotes the creation of new work by protecting authors' rights in their works, but also upholds free speech interests and freedom of expression. These constitutional values can help weigh the parties' interests in the web mashup context. We also look to international IP law as web mashups become a worldwide phenomenon and implicate content belonging to right holders from across the globe. In particular, the TRIPS agreement provides a promising three-step test to use in deciding whether an exemption for web mashups is appropriate.

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