7. What Is Fair Use in Terms of Copyright Law

In the UK, fair trade is a legal doctrine that provides an exception to the country`s copyright in cases where copyright infringement occurs for non-commercial research or study, criticism or examination, or to report on current events. [74] Remember that it is your responsibility to understand the relevant law and determine whether it protects the use you intend to use. If you wish to use copyrighted material that you have not created, we strongly recommend that you first consult with legal counsel. Google cannot provide legal advice or make legal decisions. Sources differ as to whether fair use is fully recognized by countries other than the United States. The American University Infojustice.org has published a compilation of parts of the laws of more than 40 countries that explicitly mention fair dealing or fair dealing, stating that some of the fair dealing laws, such as Canada`s, have evolved (for example. B, thanks to judicial precedents) to bring it closer to those of the United States. This compilation contains fair dealing provisions for Bangladesh, Israel, the Philippines, South Korea, Sri Lanka, Taiwan, Uganda and the United States. [58] However, Paul Geller`s 2009 International Copyright Law and Practice states that while other countries recognize similar exceptions to copyright, only the United States and Israel fully recognize the concept of fair use.

[59] What does a copyright allow the copyright owner to do or prevent others from doing so? The second factor takes into account the nature of the underlying work, especially if it is more creative or factual. The use of a more creative or imaginative underlying work is less likely to support a fair dealing allegation, while the use of a factual work would be more likely to support a fair dealing allegation. This factor also takes into account the publication status of the copyrighted work. If the copyrighted work is not published, its use is less likely to be fair use. When considering this factor, a court will consider whether the material you use is factual or creative, and whether it is published or not. Although factual works such as biographies and press articles are protected by copyright, their factual nature means that these articles can be relied on more while enjoying the protection of fair use. Unlike factual works, works of fiction generally enjoy greater protection in a fair dealing analysis. For example, it is more likely that the inclusion of interesting quotes from a research report is protected by fair use than the citation of a novel. However, this issue is not decisive and the courts have found the fair use of works of fiction in some of the crucial cases on the subject. See e.B. Sony Corp.

v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984). In addition to fair use, the Copyright Act includes a special provision, subsection 110(1), which allows teachers to perform or exhibit a copyrighted work, live or recorded «in the course of personal classroom activities.» in a classroom or similar place dedicated to teaching. Thus, you can use sound recordings, live performances, readings, movies or videotapes, slides or any other performance or exhibition of copyrighted works without restriction and permission, as long as you teach students in a classroom or similar location such as a studio. The only exception is that you may not use a film or videotape that you have reason to believe is an illegally made copy. The term «fair use» comes from the United States. [5] While related, the copyright limitations and exceptions for library teaching and archiving in the United States are found in a different section of the law. A similar principle, fair trade, exists in other common law jurisdictions, but in fact it is in principle more similar to the exceptions listed in civil law systems. Civil courts have other limitations and exceptions to copyright. The third factor assesses the quantity and relative importance of the copyrighted work that has been used.

In general, the less one uses in relation to the whole, the more likely it is that the use will be considered fair. If you`re reviewing a book or film, you may need to reprint parts of the copyrighted work during the review to give yourself points. Even substantial quotations can be considered fair use in «a review of a published work or report on a speech given to the public or transmitted to the press.» Harper & Row, Publishers, Inc. v Nation Enters., 471 U.S. 539, 564 (1985). However, essential quotations from non-public sources or unpublished works do not enjoy the same protection. For example, in Sony Corp v. Universal City Studios,[25] copyright holder Universal was unable to provide Universal with empirical evidence that the use of Betamax had either reduced their audience or had a negative impact on their business. In Harper & Row, the case involving President Ford`s briefs, the Supreme Court called the fourth factor «the most important element of fair use» and has since enjoyed some precedence in the analysis of fair use. However, the Supreme Court`s recent announcement in Campbell v. Acuff-Rose Music Inc.[13] that «the [four factors] must be considered in light of copyright objectives and the results weighed together» has helped to modulate this emphasis in the interpretation. Even if the percentage is relatively small, if the material used is qualitatively very important, this factor can be weighed against fair use.

For example, in one case in which The Nation magazine published excerpts from Gerald Ford`s upcoming memoirs, which contained a total of only 300 to 400 words of textual quotations, the Supreme Court ruled that the third factor opposed fair use because the excerpts contained Ford`s discussion of Nixon`s pardon and other central passages that the court considered the «heart» of the work. [2] In pre-trial detention, in a 213-page statement, the lower court re-analyzed each of the 48 cases of alleged violation in light of the Court of Appeal`s directions. This time, seven cases of violations and 41 cases of fair dealing were identified. [7] Given that the first factor has always favoured fair use and the second factor has received relatively little weight, the analysis has largely revolved around the third and fourth factors. Make a good faith fair use decision for any copyrighted material you wish to use. If you do not reasonably believe that the use you are proposing meets the four-factor test, you must obtain permission for the material or not use it. The fourth factor favoured fair use in a significant number of cases, since the publisher had not provided a digital licence for the work in question. If such a license was available through the Copyright Clearance Center or the publisher, it was assumed that the fourth factor discriminated against fair use.

However, in a number of cases, GSUs prevailed over the fourth factor by showing that digital royalties represented only a very small portion of the publisher`s total revenue from the work, including book sales. The loss of these costs, even if «everyone did it», was therefore considered unlikely to affect the publisher`s incentive to publish. Assessing the potential economic harm of non-transformative use in light of the publisher`s incentive to publish (or the author`s inducement to write), as ordered by the Court of Appeal, is theoretically logical. However, it is difficult to apply it in practice outside of litigation because the potential fair user usually has a limited understanding of the publisher`s finances. The doctrine of «fair use» has its origins in Anglo-American customary law of the 18th and 19th centuries to prevent copyright from being applied too rigidly and «stifles the very creativity that [copyright] law is supposed to promote.» [2] Although it was originally a common law doctrine, it was enshrined in law when the U.S. Congress passed the Copyright Act of 1976. The U.S. Supreme Court has issued several important decisions clarifying and upholding the fair dealing doctrine since the 1980s, most recently in Campbell v. 1994.

Acuff-Rose Music, Inc.[3] However, the second factor is generally the least important of the fair dealing factors. In recent years, the courts have increasingly focused on whether the use in question is «transformative.» A work is transformative when, in the words of the Supreme Court, it «adds something new, with another purpose or character, changing the former with a new expression, meaning or message.» Using a quote from a previous article in a critical essay to illustrate the essayist`s reasoning is a classic example of transformative use. A use that replaces or replaces the original work is less likely to be considered fair use than a use that makes a new contribution and thus promotes the purpose of copyright, the promotion of science and art. To quote the Supreme Court again, transformative works «are at the heart of the doctrine`s guarantee of fair use of having air to breathe within the limits of copyright.» [1] In 2009, fair use emerged as a defense in lawsuits against file sharing. Charles Nesson argued that file sharing is considered fair use in his defense of alleged file-sharer Joel Tenenbaum. [31] Kiwi Camara, who defended alleged file-sharer Jammie Thomas, announced a similar defense. [32] However, in the Law Society case, the Court rejected the idea that file-sharing is fair use. .