Copyright Fair Use
Copyright Fair Use: A Limitation On Exclusivity1
The copyright fair use defense can protect one against liability for copyright infringement in some circumstances. The Copyright Act encourages creativity by granting to the author of an original work a bundle of exclusive rights 2xd. However, the copyright laws in the United States also reflect a balance of competing claims upon the public interest: The motivation to create works of authorship on account of the availability of exclusive rights balanced against the cause of promoting broad availability to the public of works of authorship. One way that this balance is reflected in the law is the defense of "fair use".
History
The defense of "fair use" has its origins in the courts, but has since been codified by Congress 3. If the use of a copyrighted work qualifies under the law as a "fair use", then such use will not be an act of copyright infringement. Accordingly, in a situation of a fair use there will be no need to seek the permission of, or possibly pay compensation to, the owner of the copyrights for the use of the work. The fair use defense is intended to strike a balance between the rights of the copyright holder and the public's interest in accessing and using copyrighted works for specific purposes such as criticism, commentary, news reporting, teaching, scholarship, or research.
Determination of Copyright Fair Use
The determination of fair use depends on four non-exclusive factors 4:
1. Purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: The central purpose of this factor is to see whether and to what extent the new use of the work is "transformative." 5 Although such transformative use is not absolutely necessary for a finding of fair use, the more transformative the new use of the work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.
2. Nature of the copyrighted work: The nature of the copyrighted work is also considered. The use of a work that is more factual in nature, like a news articles, may be more likely to be deemed a fair use than highly creative works like novels or songs.
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: The portion of the copyrighted work used is taken into account. Using a very small portion of the work relative to the whole, such as quoting a single line from a novel, is more likely to be considered a fair use than using a substantial portion, such as an entire chapter from the novel.
4. The effect of the use upon the potential market for or value of the copyrighted work: The potential impact on the market value of the copyrighted work is considered. If the use of the copyrighted material diminishes its potential market or replaces the original work, it weighs against a finding that the use is a fair use.
Burden Of Proof With Copyright Fair Use Defense
It's important to note that fair use is not an absolute right, and each case is evaluated individually on the particular facts. It is an affirmative defense against copyright infringement claims: This means that the burden of proving that a use of a copyrighted work qualified as a fair use falls on the person accused of copyright infringement6.
Copyright Fair Use Conclusion
In conclusion, fair use is a vital component of copyright law that strikes a balance between the free use of publicly available works of authorship and copyright protection in those works. It permits the limited use of copyrighted material under specific circumstances for purposes such as criticism, commentary, teaching, or research. By understanding and respecting fair use, we can foster a creative environment while upholding the rights of creators. For more general information about copyrights see the copyrights overview post.
