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Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as for commentary, criticism, news reporting, research, teaching or scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. The term "fair use" originated in the United States. A similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.

Fair use under United States law

The legal concept of "Test copyright" was first ratified by the Kingdom of Great Britain's Statute of Anne of 1709. As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts created a doctrine of "fair abridgment" in Gyles v Wilcox, which eventually evolved into the modern concept of "fair use," that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107 .

Notwithstanding the provisions of sections 17 U.S.C. § 106

and 17 U.S.C. § 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:


  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1]

The four factors of analysis for fair use set forth above derive from the classic opinion of Joseph Story in Folsom v. Marsh, 9 F.Cas. 342 (1841), in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The court rejected the defendant's fair use defense with the following explanation:

[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy

In short, we must often… look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

Once these factors were codified as guidelines in Template:USC, they were not rendered exclusive. The section was intended by Congress to restate, but not replace, the prior judge-made law. Courts are still entitled to consider other factors as well.

Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (Art. I, § 8, cl. 8). This principle applies particularly well to the case of criticism and also sheds light on various other limitations on copyright's exclusive rights, particularly the scenes à faire doctrine.

Purpose and character

The first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.

When Tom Forsythe appropriated Barbie dolls for his photography project "Food Chain Barbie," Mattel lost its claims of copyright and trademark infringement against him because his work effectively parodies Barbie and the values she represents.[2] But when Jeff Koons tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense, he lost because his work was not presented as a parody of Rogers' photograph in particular, but of society at large, which was deemed insufficiently justificatory.[3]

However, since this case, courts have begun to emphasize the first fair use factor—assessing whether the alleged infringement has transformative use as described by the Hon. Judge Pierre N. Leval.[4] More recently, Koons was involved in a similar case with commercial photographer Andrea Blanch,[5] regarding his use of her photograph for a painting, whereby he appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. In this case, Koons won; the case sets a favorable precedent for appropriation art where the use is deemed transformative.

The subfactor mentioned in the legislation above, "whether such use is of a commercial nature or is for nonprofit educational purposes," has recently been deemphasized in some Circuits "since many, if not most, secondary uses seek at least some measure of commercial gain from their use."[6] More important is whether the use fulfills any of the "preamble purposes" also mentioned in the legislation above, as these have been interpreted as paradigmatically "transformative." Although Judge Pierre Leval has distinguished the first factor as "the soul of fair use," it alone is not determinative. For example, not every educational usage is fair.[7]

Nature of the copied work

Although the Supreme Court of the United States has ruled that the availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional.[8]

To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright—only their particular expression or fixation merits such protection. On the other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy, for example, was purchased and copyrighted by Time magazine. Yet their copyright was not upheld, in the name of the public interest, when they tried to enjoin the reproduction of stills from the film in a history book on the subject in Time Inc. v. Bernard Geis Associates.[citation needed]

Following the decisions of the Second Circuit in Salinger v. Random House, Inc.[9] and in New Era Publications Int'l v. Henry Holt & Co.,[10] the aspect of whether the copied work has been previously published suddenly trumped all other considerations because of, in the words of one commentator, "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, not to publish at all." Yet some view this importation of certain aspects of France's droit moral d'artiste (moral rights of the artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision was amended in response to these concerns by adding a final sentence: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

Amount and substantiality

The third factor assesses the quantity or percentage of the original copyrighted work that has been imported into the new work. In general, the less that is used in relation to the whole, e.g., a few sentences of a text for a book review, the more likely that the sample will be considered fair use. Yet see Sony Corp. v. Universal City Studios for a case in which substantial copying—entire programs for private viewing—was upheld as fair use. Likewise, see Kelly v. Arriba Soft Corporation, where the Ninth Circuit held that copying an entire photo to use as a thumbnail in online search results did not weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use." Conversely, in Harper & Row, Publishers, Inc. v. Nation Enters,[11] the use of fewer than 400 words from President Ford's memoir by a political opinion magazine was interpreted as infringement because those few words represented "the heart of the book" and were, as such, substantial.

Before 1991, sampling in certain genres of music was accepted practice and such copyright considerations as these were viewed as largely irrelevant. The strict decision against rapper Biz Markie's appropriation of a Gilbert O'Sullivan song in the case Grand Upright Music, Ltd. v. Warner Bros. Records, Inc.[12] changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation."[13] In other words, de minimis sampling was still considered fair and free because, traditionally, "the law does not care about trifles." The recent Sixth Circuit Court decision in the appeal to Bridgeport Music has reversed this standing, eliminating the de minimis defense for samples of recorded music, but stating that the decision did not apply to fair use.

Effect upon work's value

The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios,[14] where the copyright owner, Universal, failed to provide any empirical evidence that the use of Betamax had either reduced their viewership or negatively impacted their business. In the aforementioned Nation case regarding President Ford's memoirs, the Supreme Court labeled this factor "the single most important element of fair use" and it has indeed enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music, Inc.[15] that "all [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation.

In evaluating the fourth factor, courts often consider two kinds of harm to the potential market of the original work: First, courts consider whether the use in question acts as a direct market substitute for the original work. In the judgement of the Supreme Court in Acuff-Rose Music they decisively stated that, "when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur." In one instance, a court ruled that this factor weighed against a defendant who had made unauthorized movie trailers for video retailers, since his trailers acted as direct substitutes for the copyright owner's official trailers.[16] Second, courts also consider whether potential market harm might exist beyond that of direct substitution, such as in the potential existence of a licensing market. This consideration has weighed against commercial copy shops that make copies of articles in course-pack for college students, when a market already existed for the licensing of course-pack copies.[17]

Courts recognize that certain kinds of market harm do not oppose fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield a work against adverse criticism.

Fair use and professional communities

Courts, when deciding fair use cases, in addition to looking at context, amount and value of the use, also look to the standards and practices of the professional communities where the case comes from.[citation needed]

Documentary filmmakers organized and created the Documentary Filmmakers' Statement of Best Practices in Fair Use, which has had a dramatic effect on fair use practice in documentary film. Since the release of the Statement in 2005, PBS, ITVS and IFC use it. Furthermore, four out of seven of the national errors and omissions insurers now issue fair use coverage routinely. Several documentary films have also used it, allowing both theatrical and television releases. Other professional communities are beginning to plan their own best practices standards in fair use as well.

On November 11, 2008, media literacy educators released the Code of Best Practices for Fair Use in Media Literacy Education, written by the leading educational membership organizations of this professional community. The Code asserts five principles and limitations for the use of copyrights materials for teaching and learning.

In May 2009, the Center for Social Media, which crafted the codes of best practices for documentary filmmakers and media literacy educators, released the Code of Best Practices in Fair Use for Online Video, which asserts six guidelines for those who post video online, including commenting or critiquing on copyrighted material and using copyrighted material for illustration or example. The document was created in consultation with leading scholars in fair use and new media.

Practical effect of fair use defense

The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Free Republic, LLC, owner of the political website freerepublic.com, was found liable for copyright infringement in L.A. Times v. Free Republic for reproducing and archiving full-text versions of plaintiffs' news articles even though the judge found the website minimally commercial. She held that "while defendants' do not necessarily 'exploit' the articles for commercial gain, their posting to the Free Republic site allows defendants and other visitors to avoid paying the 'customary price' charged for the works."

The April 2000 opinion ruled concerning the four factors of fair use that 1) "defendants' use of plaintiffs' articles is minimally, if at all, transformative," 2) the factual content of the articles copied "weighs in favor of finding of fair use of the news articles by defendants in this case," though it didn't "provide strong support" 3) concerning the amount and substantiality prong, "the wholesale copying of plaintiffs' articles weighs against the finding of fair use," and 4) the plaintiffs showed that they were trying to exploit the market for viewing their articles online and defendants didn't rebut their showing by proving an absence of usurpation harm to plaintiffs. Ultimately the court found "that the defendants may not assert a fair use defense to plaintiffs' copyright infringement claim."

Fair use as a defense

The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc..[15] This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense.

Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation.

Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability.

The frequent argument over whether fair use is a "right" or a "defense"[18] is generated by confusion over the use of the term "affirmative defense." An affirmative defense is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between "rights" and "defenses," and so it does not characterize the substance of the defendant's actions as "not a right but a defense." The First Amendment, for instance, is generally raised as an affirmative defense in litigation, but is clearly a "right." Similarly, while fair use is characterized as a defense in terms of the litigation posture, Section 107 defines fair use as a "limitation" on copyright law and states clearly that "the fair use of a copyrighted work … is not an infringement of copyright."[19]

In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The "Chilling Effects" archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. Most recently, in 2006, Stanford University began an initiative called "The Fair Use Project" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.

In 2009, fair use appeared as a defense in lawsuits against filesharing. Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum.[20] Kiwi Camara, defending alleged filesharer Jammie Thomas, announced a similar defense.[21]

On September 2, 2009 Israeli District court ruled out a detailed decision[22] not allowing disclosure of "John Doe"'s details for the request of the English Premier League Associan based on several reasons, but the most interesting were that "fair use" under the new Israeli law of 2007 (which is based on the US 4 factors test) is a right and not merely a defense. The court specifically states that the public may have base for a legal cause of action if its fair use right is infringed by the copyright holder. Other important decision in said judgment is the fact that the court finds streaming Internet filesharing site of live soccer games not infringing copyright as this use is fair use (mainly due to the importance of certain sport events and the public's right). The court analyzes the 4 factors and decides that due to such importance of sporting games (and other less important factors), such use is fair.

The economic benefit of fair use

A balanced copyright law provides an economic benefit to many high tech businesses such as search engines and software developers and Fair Use is also crucial to non-technology industries such as insurance, legal services, and newspaper publishers.[23] On September 12, 2007, the Computer and Communications Industry Association (CCIA),[23] a group representing companies including Google Inc., Microsoft Inc.,[24] Oracle Corporation, Sun Microsystems, Yahoo[25] and other high tech companies, released a study that found that Fair Use exceptions to US copyright laws were responsible for more than $4,500 Billion dollars in annual revenue for the United States economy representing one-sixth of the total U.S. GDP.[23] The study was conducted using a methodology developed by the World Intellectual Property Organization.[23] The study found that fair use dependent industries are directly responsible for more than 18% of U.S. economic growth and nearly 11 million American jobs.[23] “As the United States economy becomes increasingly knowledge-based, the concept of fair use can no longer be discussed and legislated in the abstract. It is the very foundation of the digital age and a cornerstone of our economy,” said Ed Black, President and CEO of CCIA.[23] “Much of the unprecedented economic growth of the past ten years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner."[23]

Fair use and parody

Producers or creators of parodies of a copyrighted work have been sued for infringement by the targets of their ridicule, even though such use may be protected as fair use. These fair use cases distinguish between parodies (using a work in order to poke fun at or comment on the work itself) and satires (using a work to poke fun at or comment on something else). Courts have been more willing to grant fair use protections to parodies than to satires, but the ultimate outcome in either circumstance will turn on the application of the four fair use factors.

In Campbell v. Acuff-Rose Music, Inc.[15] Supreme Court recognized parody as a fair use, even when done for profit. Roy Orbison's publisher, Acuff-Rose Music Inc., had sued 2 Live Crew in 1989 for their use of Orbison's "Oh, Pretty Woman" in a mocking rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculing commentary on the earlier work, and ruled that when the parody was itself the product rather than used for mere advertising, commercial sale did not bar the defense. The Campbell court also distinguished parodies from satire, which they described as a broader social critique not intrinsically tied to ridicule of a specific work, and so not deserving of the same use exceptions as parody because the satirist's ideas are capable of expression without the use of the other particular work.

A number of appellate decisions have recognized parody as a protected fair use, including both the Second (Leibovitz v. Paramount Pictures Corp.) and Ninth Circuits (Mattel v. Walking Mountain Productions). Most recently, Suntrust v. Houghton Mifflin, a suit was brought unsuccessfully against the publication of The Wind Done Gone, which reused many of the characters and situations from Gone with the Wind, but told the events from the point of view of the slaves rather than the slaveholders. The Eleventh Circuit, applying Campbell, recognized that The Wind Done Gone was a protected parody, and vacated the district court's injunction against its publication.

Fair use on the Internet

A US court case in 2003, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use.

On appeal, the 9th Circuit Court of Appeals found in favor of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Second, the fact that the photographs had already been published diminished the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

In August 2008 U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania, who made a home video of her 13-month-old son dancing to Prince's song Let's Go Crazy and posted the video on YouTube. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied after six weeks, not two weeks as required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair-use of the song.[26]

Common misunderstandings

Fair use is commonly misunderstood because of its deliberate ambiguity. Here are some of the more common misunderstandings with explanations of why they are wrong:

  • Any use that seems fair is fair use. In the law, the term "fair use" has a specific meaning that only partly overlaps the plain-English meaning of the words. While judges have much leeway in deciding how to apply fair use guidelines, not every use that is commonly considered "fair" counts as fair use under the law.[citation needed]
  • Fair use interpretations, once made, are static forever. Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different point in time can make a difference due to changing social, technological, or other surrounding circumstances.[12][citation needed]
  • If it's not fair use, it's copyright infringement. Fair use is only one of many limitations, exceptions, and defenses to copyright infringement. For instance, the Audio Home Recording Act establishes that it is legal in some circumstances to make copies of audio recordings for non-commercial personal use.[27]
  • It's copyrighted, so it can't be fair use. On the contrary, fair use applies only to copyrighted works, describing conditions under which copyrighted material may be used without permission. If a work is not copyrighted, fair use does not come into play, since public-domain works can be used for any purpose without violating copyright law.
    • Note: In some countries (including the United States of America), the mere creation of a work establishes copyright over it, and there is no legal requirement to register or declare copyright ownership[28]
  • Acknowledgment of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. While plagiarism and copyright violation are related matters—-both can, at times, involve failure to properly credit sources—-they are not identical. Plagiarism—using someone's words, ideas, images, etc. without acknowledgment—is a matter of professional ethics. Copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, such as trying to pass off a line from Shakespeare as one's own. On the other hand, citing sources generally prevents accusations of plagiarism, but is not a sufficient defense against copyright violations. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.[citation needed]
  • Noncommercial use is invariably fair. Not true, though a judge may take the profit motive or lack thereof into account. In L.A. Times v. Free Republic, the court found that the noncommercial use of L.A. Times content by the Free Republic Web site was in fact not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.[citation needed]
  • Strict adherence to fair use protects you from being sued. Fair use is a defense against an infringement suit; it does not restrain anyone from suing. The copyright holder may legitimately disagree that a given use is fair, and they have the right to have the matter decided by a court. Thus, fair use is not a deterrent to SLAPP.[citation needed]
  • The lack of a copyright notice means the work is public domain. Not usually true. United States law in effect since March 1, 1989 has made copyright the default for newly created works. For a recent work to be in the public domain the author must specifically opt-out of copyright. For works produced between January 1, 1923 and March 1, 1989, copyright notice is required; however, registration was not required[29] and between January 1, 1978 and March 1, 1989 lack of notice is not necessarily determinative, if attempts were made immediately to correct the lack of notice. Any American works that did not have formal registration or notice fell into the Public Domain if registration was not made in a timely fashion. For international works, the situation is even more complex. International authors who failed to provide copyright notice or register with the U.S. copyright office are given additional contemporary remedies that may restore American copyright protection given certain conditions. International authors/corporations who fail to meet these remedies forfeit their copyright. An example of a company who failed to prove copyright was Roland Corporation and their claimed copyright on the sounds contained in their MT-32 synthesizer.
  • It's okay to quote up to 300 words. The 300-word limit is reported to be an unofficial agreement, now long obsolete, among permissions editors in the New York publishing houses: "I'll let you copy 300 words from our books if you let us copy 300 words from yours." It runs counter to the substantiality standard. As explained above, the substantiality of the copying is more important than the actual amount. For instance, copying a complete short poem is more substantial than copying a random paragraph of a novel; copying an 8.5×11-inch photo is more substantial than copying a square foot of an 8×10-foot painting. In 1985, the U.S. Supreme Court held that a news article's quotation of approximately 300 words from former President Gerald Ford's 200,000 word memoir was sufficient to constitute an infringement of the exclusive publication right in the work.[30]
  • You can deny fair use by including a disclaimer. Fair use is a right granted to the public on all copyrighted work. Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or license agreements may take precedence over fair use rights.[31]
  • If you're copying an entire work, it's not fair use. While copying an entire work may make it harder to justify the amount and substantiality test, it does not make it impossible that a use is fair use. For instance, in the Betamax case, it was ruled that copying a complete television show for time-shifting purposes is fair use.
  • If you're selling for profit, it's not fair use. While commercial copying for profit work may make it harder to qualify as fair use, it does not make it impossible. For instance, in the 2 Live Crew—Oh, Pretty Woman case, it was ruled that commercial parody can be fair use.

Influence internationally

The doctrine of fair use is no longer exclusive to the United States, with other jurisdictions having either implemented such a doctrine or considering its introduction.

While influential in some quarters, other countries often have drastically different fair use criteria to the US, and in some countries there is little or no fair use defense available. Even within Europe, rules vary greatly between countries. Some countries have the concept of fair dealing instead of fair use. However many countries have some reference to an exemption for educational use, although the extent of this exemption may vary widely.[32]

Fair use in Canada

The Copyright Act establishes fair dealing in Canada, which allows specific exceptions to copyright protection. The open-ended concept of fair use is not observed in Canadian law. In 1985, the Sub-Committee on the Revision of Copyright rejected replacing fair dealing with an open-ended system, and in 1986 the Canadian government agreed that “the present fair dealing provisions should not be replaced by the substantially wider ‘fair use’ concept.”[33]

CCH Canadian Ltd. v. Law Society of Upper Canada [2004] 1 S.C.R. 339, Template:Canlii-scc is the landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law. The Law Society of Upper Canada was sued for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.

Fair use in Israel

In November 2007, Israel passed a new Copyright Law that included a US style fair use exception. The law, which took effect in May 2008, permits the fair use of copyrighted works for purposes such as private study, research, criticism, review, news reporting, quotation, or instruction or testing by an educational institution.[34] The law sets up four factors, similar to those of section 107 under American law, to determine whether a use is fair use.

See also "Fair use as a defense" above and the Fapl v. Ploni decision.[22][35]

Fair use in South Korea

Korean Copyright Act newly amended in 2009, the article 23~38 in section 4-2(Limitation to the author's property rights) defined the exceptional use of copyrighted material without permission from copyright holders. And, the concept of fair use like above countiries has been not prepared in Korean Copyright Act.

Article 23(Reproduction for Judicial Proceedings, etc.) It shall be permissible to reproduce a work if and to the extent deemed necessary for the purpose of judicial proceedings and of internal use in the legislative or administrative organs; provided that such reproduction does not unreasonably prejudice the interests of the owner of author’s property rights in the light of the nature of the work as well as the number of copies and the nature of reproduction.

Article 24(Use for the Purpose of Political Speeches, etc.) It shall be permissible to exploit, by any means, political speeches delivered in public and statements made in the courts of law, the National Assembly, or municipal assemblies unless the exploitation is made after editing the speeches or statements of the same author.

Article 25(Use for the Purpose of School Education, etc.) (1) A work already being made public may be reproduced in textbooks to the extent deemed necessary for the purpose of education at high schools, their equivalents or lower level schools. (2) Educational institutions established by special laws, the Elementary and Secondary Education Act, or the Higher Education Act or operated by the state or local government may reproduce, perform publicly, broadcast or conduct interactive transmission a part of a work already being made public to the extent deemed necessary for the purpose of class. Provided that the use of the whole parts of a work is deemed inevitable in the light of the nature of a work, and the purpose and manner of its exploitation, etc., use of the whole parts of the work shall be permissible. (3) It shall be permissible for a person who receives education in the educational institutions described in Paragraph (2) to reproduce or interactively transmit the work already being made public within the limit regulated in paragraph (2) to the extent deemed necessary for the purpose of class. (4) A person who intends to exploit a work pursuant to Paragraphs (1) and (2) shall pay compensation to the owner of author’s property rights according to the criteria for compensation as determined and published by the Minister of Culture and Tourism. Reproduction, public performance, broadcasting or interactive transmission of a work done at high schools, their equivalents or lower level schools as prescribed under Paragraph (2) is not obliged to pay compensation. (5) The right to be compensated pursuant to Paragraph (4) shall be exercised by an organization which satisfies all of the following conditions and is regulated by the Minster of Culture and Tourism. The consent of the organization shall be necessary when the Minister of Culture and Tourism appoints such organization. The organization shall:

1. Consist of the persons who hold the right to receive compensation(hereinafter referred to as “compensation right holder”); 2. Not be for the purpose of profit making; and 3. Have ample capability to carry out its duties including collecting, distributing the compensation.

(6) When a compensation right holder requests, the organization regulated under Paragraph (5) may not deny to exercise the right of a compensation right holder even if the compensation right holder is not a member of the organization. In this case, the organization shall have the authority to exercise judicial or non‐judicial acts with regard to the right under its name. (7) The Minister of Culture and Tourism may cancel the appointment in cases where the organization under Paragraph (5) falls under any of the followings 1. Where an organization fails to satisfy the conditions stipulated in Paragraph (5); 2. Where an organization violates the work regulation with regard to compensation; and 3. where it is concerned that the interest of a compensation right holder could be harmed due to the organization’s suspension of its duties with regard to compensation for a considerable period of time. (8) The organization regulated under Paragraph (5) may use the undistributed compensations, the date of notification of which has been made three or more years ago, for the public interest after obtaining authorization of the Minister of Culture and Tourism. (9) The necessary matters for appointment and cancellation of the organization, work regulations, notification of distribution of compensation, authorization of exploitation of undistributed compensation for the public interest, and etc. in accordance with Paragraphs 5, 7 and 8 shall be determined by the Presidential Decree. (10) In the case where an educational institution conducts interactive transmission pursuant to Paragraph (2), necessary measures determined under the Presidential Decree including reproduction prevention measures shall be taken in order to prevent infringement on copyright and the rights protected under this Act..

Article 26(Use for Current News Report) In the case of reporting current events by means of broadcasts, newspapers or by other means, it shall be permissible to reproduce, distribute, perform publicly, or communicate(transmit) to the public a work seen or heard in the course of the event, to the extent justified by the information purpose.

Article 27(Reproduction, etc of Current News Articles and Editorials) Current new articles and editorials about politics, economy, society, culture and religions published in the newspapers and Internet newspapers pursuant to Article 2 of the Act on Freedom and Function Guarantee of Newspaper, etc. or in the news agency under the provisions of Article 2 of the Act on Promotion of News and Telecommunication may be reproduced, distributed, or broadcasted by other media organizations, unless any indications of prohibition of exploitation exist.

Article 28(Quotations from Works Made Public) It shall be permissible to make quotations from a work already being made public; provided that they are within a reasonable limit for news reporting, criticism, education and research, etc. and compatible with fair practice.

Article 29(Public Performance and Broadcasting for Non‐profit Purposes) (1) It shall be permissible to perform publicly or broadcast a work already being made public for non‐profit purposes and without charging any fees to audience, spectators or third persons; provided that the performers concerned are not paid any remuneration for such performances. (2) Commercial phonograms or cinematographic works may be reproduced and played for the public, if no admission fee is charged to audience or spectators, except the cases as prescribed by the Presidential Decree.

Article 30(Reproduction for Private Use) It shall be permissible for a user to reproduce by himself a work already being made public for the purpose of his personal, family or other similar uses within a limited circle; (Newly Inserted) provided that this shall not apply to the reproduction by a photocopying machine that is set up for the public use.

Article 31(Reproduction, etc. in Libraries, etc.) (1) Libraries under the Libraries and Reading Promotion Act and the facilities (including the heads of the relevant facilities; hereinafter referred to as “libraries, etc.”) as prescribed by Presidential Decree among those facilities which provide books, documents, records and other materials (“hereinafter referred to as “books, etc.”) for public use may reproduce the works by utilizing books, etc. held by the libraries, etc. (in the case of Subparagraph 1, including the books, etc. reproduced by or interactively transmitted to the libraries, etc. in accordance with the provision of Paragraph 3 hereof) in any of the following cases: provided that in the case of Subparagraphs 1 and 3, the works may not be reproduced in digital format. 1. Where, at the request of a user and for the purpose of research and study, a single copy of a part of books, etc. already made public is provided to him; 2. Where it is necessary for libraries, etc. to reproduce books, etc. for the purpose of preserving such books, etc.; and 3. Where libraries, etc. provide other libraries etc. with a reproduction of books, etc. that are out of print or scarcely available for similar reasons at the request of other libraries etc. for their collection purpose. (2) Libraries, etc. may reproduce or interactively transmit their books, etc. to allow users to peruse them in such libraries, etc. by using devices capable of information processing such as computers, etc. In such case, the number of users who may peruse them at the same time shall not exceed the number of copies of such books, etc. held by the libraries, etc. or authorized to be used by the persons with copyrights or other rights protected according to this Act. (3) Libraries, etc. may reproduce or interactively transmit their books, etc. to allow users in other libraries, etc. to peruse them by using computers, etc.; provided that, in those cases where all or a part of the books, etc. have been published for sale, such books, etc. shall not be reproduced or interactively transmitted unless a period of five years has elapsed since the publication date of such books, etc. (4) In reproducing books, etc. pursuant to Subparagraph 2 of Paragraph (1), Paragraph (2) or Paragraph (3), libraries, etc. shall not reproduce such books, etc. in digital format if they are being sold in digital format. (5) In reproducing books, etc. in digital format pursuant to Subparagraph 1 of Paragraph (1), or reproducing or interactively transmitting books, etc. for the purpose of allowing perusal inside other libraries, etc. pursuant to Paragraph (3), libraries, etc. shall pay the owners of authors’ property rights compensation in accordance with the standards determined and published by the Minister of Culture; provided that said provision shall not apply to books, etc. (excluding those books, etc. which are, in part or in whole, published for a sales purpose) regarding which the state, local governments or schools as provided in Article 2 of the Higher Education Act hold authors’ property rights. (6) The regulation regarding compensation in Paragraph 5 to Paragraph 9 of Article 25, shall apply mutatis mutandis to foregoing Paragraph 5 with regard to distribution of compensation, etc. (7) If books, etc. are reproduced or interactively transmitted in digital format pursuant to the foregoing Paragraphs (1) through (3), libraries, etc. shall take necessary measures as provided by Presidential Decree such as reproduction prevention measures in order to prevent infringement of copyrights and other rights protected under this Act.

Article 32(Reproduction for Examination Questions) It shall be permissible to reproduce a work already being made public in questions of entrance examinations or other examinations of knowledge and skills, to the extent deemed necessary for that purpose; provided that it is for non‐profit purposes.

Article 33 (Reproduction, etc. for Visually Impaired Persons, etc.) (1) Published works may be reproduced and distributed in Braille for visually impaired persons, etc. (2) The facilities (including the heads of relevant facilities) as prescribed by Presidential Decree among facilities for the purpose of promoting the welfare of visually impaired persons, etc. may record a published oral or written work, or reproduce, distribute or interactively transmit such work in a recording form for the exclusive use of visually impaired persons, etc. in order to provide such for the use of visually impaired persons, etc. without using it, in any way, for profit‐making purposes. (3) The scope of visually impaired persons, etc. as provided in the foregoing Paragraphs (1) and (2) shall be determined by Presidential Decree.

Article 34(Ephemeral Sound or Visual Recordings by Broadcasting Organizations) (1) Broadcasting organizations with the authority to broadcast a work may make ephemeral sound or visual recordings of the work for the purpose of their own broadcasting and by the means of their own facilities. (2) Sound or visual recordings made pursuant to Paragraph (1) may not be kept for a period exceeding one year from the date of sound or visual recording, unless they are kept as materials for public records at places as prescribed by the Presidential Decree.

Article 35(Exhibition or Reproduction of Works of Art, etc.) (1) The owner of the original of a work of art, etc. or a person who has obtained the owner’s authorization, may exhibit the works in its original form; provided that this provision shall not apply to the case of that the work of art is to be permanently exhibited in a street or park, outside the wall of a building, or other places open to the public. (2) Works of art, etc. exhibited at all times at an open place as referred to in the proviso of Paragraph (1) may be reproduced and used by any means, except those falling under any of the following cases: 1.Where a building is reproduced in another building; 2.Where a sculpture or a painting is reproduced in another sculpture or a painting; 3.Where the reproduction is made in order to exhibit permanently at an open place, as prescribed under Paragraph (1); and 4. Where the reproduction is made for the purpose of selling its copies. (3) A person who exhibits works of art, etc. under Paragraph (1), or who intends to sell originals of works of art, etc. may reproduce and distribute them in a pamphlet for the purpose of explaining and introducing them. (4) A portrait or a similar photographic work produced by consignment shall not be exploited without the consent of the consignor.

Article 36 (Use by Means of Translation, etc.) (1) If a work is used in accordance with Articles 25, 29, or 30, the work may be used by means of translation, arrangement, or adaptation. (2) If a work is used in accordance with Articles 23, 24, 26, 27, 28, 32, or 33, the work may be used by means of translation.

Article 37(Indication of Sources) (1) A person who uses a work pursuant to this subsection shall indicate its sources, except the cases as prescribed under Articles 26, 29 to 32, or 34. (2) The indication of the sources shall be made clearly in the manner and to the extent deemed reasonable by the situation in which the work is used. If the real name or pseudonym of the author of a work is indicated, such real name or pseudonym shall be indicated.

Article 38(Relationship with Author’s Moral Rights) No provisions of this subsection may be interpreted as affecting the protection of author’s moral rights.

See also

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References

  1. US CODE: Title 17,107. Limitations on exclusive rights: Fair use. .law.cornell.edu. URL accessed on 2009-06-16.
  2. Mattel, Inc. v. Walking Mountain Productions, No. 01-56695, 9th Circuit, December 29, 2003: http://www.ca9.uscourts.gov/coa/newopinions.nsf/6205C146C29519CC88256E0B005D8100/$file/0156695.pdf
  3. Art Rogers v. Jeff Koons, 960 F.2d 301
  4. Leval, Pierre N. (1990). Toward a Fair Use Standard. Harvard Law Review 103 (5): 1105–1136.
  5. Blanch v. Koons, No. 05-6433, 2nd Circuit, October 26, 2006: http://caselaw.lp.findlaw.com/data2/circs/2nd/056433p.pdf
  6. American Geophysical Union, 60 F.3d at 921
  7. see the 1914 case, Macmillan Co. v. King, although this case has only limited application since it was decided many years before the modern fair use provision became a part of the legislation
  8. RDR v. Rowling, 575 F. Supp. 2d 513 (S.D.N.Y. 2008)
  9. Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986)
  10. New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988)
  11. Harper & Row, Publishers, Inc. v. Nation Enters., Template:Findlaw us (1985)
  12. 12.0 12.1 Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)
  13. Bridgeport Music Inc. v. Dimension Films, 230 F. Supp.2d at 841 [1]
  14. Sony Corp. v. Universal City Studios, 464 U.S. 417, 451 (1984)
  15. 15.0 15.1 15.2 Campbell v. Acuff-Rose Music, Inc., Template:Findlaw us (1994)
  16. Video Pipeline v. Buena Vista, 342 F.3d 191 (3d Cir. 2003)
  17. Princeton Univ. Press v. Michigan Document Services, 99 F.3d 1381 (6th Cir. 1999)
  18. http://www.eff.org/IP/eff_fair_use_faq.php Eff.org Retrieved on 05-21-07
  19. 17 U.S.C. § 107 .
  20. Anderson, Nate Harvard prof tells judge that P2P filesharing is "fair use". Ars Technica. URL accessed on 2009-06-16.
  21. Anderson, Nate Lawyer: RIAA must pay back all "$100M+" it has allegedly collected. Ars Technica. URL accessed on 2009-06-16.
  22. 22.0 22.1 [2] FAPL v. Ploni
  23. 23.0 23.1 23.2 23.3 23.4 23.5 23.6 Computer and Communications Industry Association. "Fair Use Economy Represents One-Sixth of U.S. GDP." September 12, 2007. Ccianet.org. URL accessed on 2009-06-16.
  24. Wall Street Journal. "Google, Others Contest Copyright Warnings" by Sarah McBride and Adam Thompson. August 1, 2007. Online.wsj.com. URL accessed on 2009-06-16.
  25. Computer and Communications Industry Association. "CCIA Members.". Ccianet.org. URL accessed on 2009-06-16.
  26. includeonly>"Woman can sue over YouTube clip de-posting", San Francisco Chronicle. Retrieved on 2008-08-25.
  27. See USC 17.10.1008, amended by the Audio Home Recording Act.
  28. [3]
  29. Copyright Office Basics[dead link]
  30. Harper & Row, Publishers, Inc. v. Nation Enterprises, 105 S.Ct. 2218 (1985)
  31. Wall Data v. Los Angeles County Sheriff's Dept. (9th Cir. May 17, 2006) (PDF at Ninth Circuit).
  32. International exemptions for education with links to relevant laws. Teflpedia.com. URL accessed on 2009-06-16.
  33. Why Canada Should Not Adopt Fair Use: A Joint Submission to the Copyright Consultations[4]
  34. [5] The Jerusalem Post Retrieved on 05-5-08
  35. [6] FAPL v. Ploni Israeli fair use discussion

Further reading

  • Depoorter, Ben, Parisi, Francesco (2002). Fair Use and Copyright Protection: A Price Theory Explanation. International Review of Law and Economics 21 (4): 453–473.
  • Gordon, Wendy J. (1982). Fair Use as Market Failure: A Structural and Economic Analysis of the ‘Betamax’ Case and Its Predecessors. Columbia Law Review 82 (8): 1600–1657.
  • Samuelson, Pamela (1995). Copyright’s fair use doctrine and digital data. Publishing Research Quarterly 11 (1): 27–39.

External links and sources

Statute & case law resources

Economic Benefits of Fair Use

Resources to learn about fair use

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