Fair use is a
limitation and exception to the
exclusive right granted by
copyright law to the author of a creative work. In
United States copyright law, fair use is a
doctrine that permits limited use of copyrighted material without
acquiring permission from the rights holders. Examples of fair use
include commentary, search engines, criticism, news reporting, research,
teaching, library archiving and scholarship. It provides for the legal,
unlicensed 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 is one of the
Traditional Safety Valves.
Fair
use under United States law
The legal concept of "test copyright" was first ratified by the
United 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 "Fairness Abridgement"
in
Gyles v Wilcox ,[1]
which eventually evolved into the modern concept of "fair use", that
recognized the utility of such actions. The doctrine only existed in the
US as
common law until it was incorporated into the
Copyright Act of 1976,
17 U.S.C. § 107.
-
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:
-
- the purpose and character of the use, including whether
such use is of a commercial nature or is 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 a whole; and
- 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The fact that a work is unpublished shall not itself bar a finding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.[2]
The four factors of analysis for fair use set forth above derive from
the opinion of
Joseph Story in Folsom v. Marsh ,[3]
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.[4]
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
17 U.S.C. § 107,
they were not rendered exclusive.[citation
needed] 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
US 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.
[5]
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.
[6]
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.[7]
More recently, Koons was involved in a similar case with commercial
photographer Andrea Blanch,
[8]
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 de-emphasized in some Circuits "since many, if not most,
secondary uses seek at least some measure of commercial gain from their
use".[9]
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.[10]
See also L.A. Times v. Free Republic, described below.
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.[11]
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.[12]
Following the decisions of the Second Circuit in
Salinger v. Random House[13]
and in New Era Publications Int'l v. Henry Holt & Co,[14]
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". However, the influential U.S.
federal judge
Pierre N. Leval views 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.[15]
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, ex: 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. of America v. Universal City Studios, Inc. for a case
in which substantial copying—entire programs for private viewing—was
upheld as fair use, at least when the copying is done for the purposes
of
time-shifting. 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,[16]
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.[17]
changed practices and opinions overnight. Samples now had to be
licensed, as long as they rose "to a level of legally cognizable
appropriation."[18]
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, Inc. v. Dimension Films 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 not
on the defendant for
commercial uses, but on the copyright owner for noncommercial uses.
See
Sony Corp v. Universal City Studios,[19]
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[20]
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.[21]
Second, courts also consider whether potential market harm might exist
beyond that of direct substitution, such as in the potential existence
of a licencing 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.[22]
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.[23]
Among the communities are documentarians, librarians, makers of Open
Courseware, visual art educators, and communications professors.[24][25][26][27]
Such codes of best practices have permitted communities of practice
to make more informed risk assessments in employing fair use in their
daily practice.[28]
For instance, documentarians must obtain errors and omissions insurance
before most broadcasters and cablecasters will accept it. Before they
created a code of best practices in 2005, no errors and omissions
insurance routinely accepted fair use claims. Now, all such insurers in
the U.S. accept fair use claims within the terms of their code.[29]
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
favour 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 did not 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.[20]
This means that, in
litigation on copyright infringement, the defendant bears the
burden of raising and proving that the 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.
Since the defendant has the 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).
Since 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"[30]
is generated by confusion over the use of the term "affirmative
defense." "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".
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.[31]
Kiwi Camara, defending alleged filesharer
Jammie Thomas, announced a similar defense.[32]
On September 2, 2009 Israeli District court ruled out a detailed
decision[33]
not allowing disclosure of "John Doe"'s details for the request of the
FA Premier League 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.
Fair Use is also crucial to non-technology industries such as insurance,
legal services, and newspaper publishers.[34]
On September 12, 2007, the Computer and Communications Industry
Association (CCIA),[34]
a group representing companies including
Google
Inc.,
Microsoft Inc.,[35]
Oracle Corporation,
Sun Microsystems,
Yahoo![36]
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 US
GDP.[34]
The study was conducted using a methodology developed by the
World Intellectual Property Organization.[34]
The study found that fair use dependent industries are directly
responsible for more than eighteen percent of US economic growth and
nearly eleven million American jobs.[34]
"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.[34]
"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 unlicenced
manner."[34]
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[20]
the
Supreme Court recognized parody as a potential 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 that a parody may be
a protected fair use, including both the
Second (Leibovitz
v. Paramount Pictures Corp.) and
Ninth Circuits (Mattel v. Walking Mountain Productions). Most
recently, in
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 fair use, 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 favour of the
defendant. In reaching its decision, the court utilized the
above-mentioned four-factor analysis. Firstly, 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. Secondly, the fact that the
photographs had already been published diminished the significance of
their nature as creative works. Thirdly, 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 US 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
thirteen-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.[37]
For more information, see
Lenz v. Universal Music Corp.
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.
- Fair use interpretations are unique and limited. 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 time can make a difference due to
changing social, technological, or other surrounding circumstances.[17][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.[38]
- 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[39]
- 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 an insufficient defense against copyright
violations. For example, reprinting a copyrighted book without
permission, while citing the original author, would be copyright
infringement but not plagiarism.
- 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 LA
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.
- Strict adherence to fair use protects you from being sued.
Fair use is an affirmative 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 does
not guarantee that a lawsuit will be prevented.
- 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[40]
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 US 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 US 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.[41]
- 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.[citation
needed] However, binding agreements such as
contracts or licence agreements may take precedence over fair use
rights.[42]
- 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 case
Campbell v. Acuff-Rose Music, Inc., it was ruled that commercial
parody can be fair use. Hip-hop group
2 Live Crew successfully made a parody, sold for profit, of the
song "Oh,
Pretty Woman".
Influence
internationally
While many other countries recognize similar exceptions to copyright,
only the United States and Israel fully recognize the concept of fair
use.[43]
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.[44]
Fair dealing
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".[45]
CCH Canadian Ltd v. Law Society of Upper Canada [2004] 1 S.C.R. 339,
2004 SCC 13 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.
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.[46]
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.[33][47]
Poland
Fair use exists in the
Polish law and are covered by the
Polish copyright law articles 23 to 35.
Compared to the United States, Polish fair use distinguishes between
private and public use. In Poland, when the use is public, its use risks
fines. The defendant must also prove that his use was private when
accused that it was not, or that other mitigating circumstances apply.
Finally, Polish law treats all cases in which private material was made
public as a potential copyright infringement, where fair use cannot
apply.
South Korea
The
Korean Copyright Act newly amended in 2009, in articles 23~38 of
section 4-2 (Limitation to the author's property rights), defines the
exceptional use of copyrighted material without permission from
copyright holders. However, a broad concept of fair use as in the above
countries still does not exist in the Korean Copyright Act.[citation
needed]