Fair Use in Copyright Law
Although the owner of copyrighted material enjoys great protection under the laws of the United States and most countries, there are situations in which a third party can legally distribute portions (or in some cases, the entirety) of copyrighted works without committing an illegal act. By far, the most important of these limitations is the concept of Fair Use (or Fair Dealings, as it is known in other countries and explained below).
Fair Use is written into American law in Title 17, chapter 1, section 107 of the US Code. An overly simplistic explanation of Fair Use is that the exclusive rights of the copyright holder do not protect the work from being used for criticism, comment, news reporting, teaching, scholarship, or research. To say it another way, a copyright owner will probably lose a court case against an infringer if the infringer can convince the jury that its use was for criticism, education, etc. Unfortunately and despite its importance, Fair Use is one of the most ambiguous laws on the books.
Although some extreme cases are obviously copyright infringement and cases of the opposite extreme are obviously Fair Use, there is a large scope of gray area and uncertainty in the middle. There are many considerations that must be taken into account when determining if something is Fair Use. The main four considerations are listed below. But even beyond the definition above and the four considerations below, the number of court decisions in the United States that seem to run somewhat contradictory to common sense in determining whether or not something should have been Fair Use is quite astounding.
Before Fair Use is explained in more detail, we should explain why the concept is so important to Web Defense Systems and our clients. One of our foremost jobs is to protect the copyright privileges of our clients’ works. But by contacting a potential copyright infringer with a demand to remove our clients’ content when fair use is a legitimate defense, our client could theoretically be “counter-sued” and forced to pay the legal bills (and perhaps even damages) of the defendant! In fact, in a situation that did not involve Web Defense Systems, Universal Music was forced to pay the legal bills of Stephanie Lenz in 2008. Universal had accused Lenz of copyright infringement, when it fact it was Fair Use. Lenz used the Fair Use defense, and won a counter-suit against Universal. As a result, before Web Defense Systems sends out a notice claiming copyright infringement on behalf of a client, we will consider whether or not Fair Use is a legitimate defense. If the area seems fuzzy, we will consult with your company’s IP attorney before proceeding.
As mentioned above, Section 107 of Title 17 the US Code explains that there are four methods to help determine if something qualifies as fair use. These four methods, originally penned by Judge Joseph Story, are:
- Is the use commercial or nonprofit / educational? If commercial, the Fair Use clause is less likely to protect the offending party.
- The nature of the work. Some works are less deserving of copyright protection, perhaps because it is in the interest of the public good to spread them.
- The amount of the copyrighted work that is used. If the entire work is used, that would more likely be a violation of the copyright than if just a snippet of the entire work was used.
- Does the infringement negatively affect the value of the copyrighted work? If the offending party uses the work in such a way that devalues it to the owner, such a use would more likely be infringement than a case for Fair Use.
When attempting to determine if Fair Use has occurred, a consideration of each of these four conditions is essential. But quite often, the situation is not black and white. For example, number 3 probably allows a sentence from a copyrighted book to be copied, yet certainly not a whole book. But what about a page? Or a chapter? (On a side note, parody is protected by Fair Use in the United States, theoretically because it is considered a critique and hence protected by the freedom of speech in the First Amendment.) To read the exact text of Section 107 on Fair Use, please click here.
The impact of Fair Use cannot be underestimated, particularly in the age of the internet. Could Bing, Yahoo and Google exist if they were not permitted to use small amounts of content from the billions of web pages they index? What if newspapers couldn’t quote stock prices because the stock exchanges could sue them for copyright infringement? A study by the CCIA even went as far as to estimate that one sixth of the total US GDP was based on Fair Use’s exception to Copyright Law! While this seems impractically and impossibly high, even for a country like the United States that produces little besides intellectual property, the impact of Fair Use is made clear.
From an international perspective, the term “Fair Use” was created in the United States, but the concept is used throughout much of the world. In fact, the concept itself dates back to 1740 and Great Britain. In the Commonwealth of Nations (which includes, Australia, Canada, Great Britain, India, Nigeria, Singapore, South Africa, and many other nations), a similar concept to Fair Use is used, called “Fair Dealings.” Fair Dealing is also quite grey in its scope, and specific laws and interpretations vary between countries. But when Web Defense Systems encounters a potential case of copyright infringement involving our client’s work occurring in another country, we will work with your IP attorney to consider that country’s intellectual property laws before taking action. Please click here to contact us and discuss how we can help you protect your intellectual property from internet piracy.