The Fair Use Doctrine
In our opinion, the Fair Use is an important subject which needs serious elaboration. We’ve examined many articles with controversial interpretation of the Fair Use doctrine. In this article, we will try to shed some light on this matter as it has many applications in the context of Internet law.
Undoubtedly, the Fair Use doctrine is one of the most unclear and misunderstood concepts in copyright law. This doctrine says that certain limited uses of copyrighted works do not constitute copyright infringement if it for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Determining whether a certain use qualifies as fair is not an easy task.
As described by the U.S. Supreme Court, “[f]air use was traditionally defined as ‘a privilege in others than the owner of the copyright to use the copyrighted material in a reasonable manner without his consent.’” The fair use privilege is codified in Section 107 of the Copyright Act:
Notwithstanding the previsions of section 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 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 whole; and
- the effect of the use upon a potential market for or value of the copyrighted work.
The above nonexclusive list seems to be a bit unclear. Even the U.S. Supreme Court have struggled with how to apply the factors listed above. Most lawyers who practice in this area of the law struggle with this question as well. On the other hand, if you think the answer to a particular fair use question is immediately clear, think again, because it probably isn’t. It is recommended to get a formal legal opinion from an attorney whenever you have questions about whether your use of someone else’s work qualifies as fair. Wrongly assuming that the use is fair could prove to be costly if the copyright owner decides to sue for infringement.
Review of the above list makes it clear that simply copying a small portion of a work and acknowledging the source is not necessarily a “fair use”. In other contexts, when publishing a website you may want to publish some information written by someone else but cannot obtain permission from the person or company who owns the copyright in the information; if your use qualifies as fair, you can publish it without getting permission.
To invoke the fair use defense, a person must have an authorized copy of the work. A fair use claim may be denied where an original work has been copied but then transformed so that it no longer resemble the original. In certain instances, however, such “intermediate” copying may be allowed to provide access to unprotected ideas and processes.
Finally, let’s say some words about the First Amendment in the context of the Fair Use debate. The First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press …” It is unclear whether the First Amendment grants an additional privilege to make unauthorized copies of protected works beyond that granted by the doctrine of fair use. While commentators have argued that a separate defense against an allegation of copyright infringement does exist, courts have not agreed. Instead, courts have stated that the combination of the fair use doctrine (described above) and the fact that copyright does not prevent the copying of facts and ideas secures society’s interest in free speech.
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