Fair use is a
doctrine
Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief syste ...
in
United States law
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well a ...
that permits limited use of
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
ed material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to
copyright infringement
Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
claims certain limited uses that might otherwise be considered infringement. Unlike "
fair dealing
Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.
Fair dealing is an en ...
" rights that exist in most countries with a British legal history, the fair use right is a general exception that applies to all different kinds of uses with all types of works and turns on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work.
The doctrine of "fair use" originated in the
Anglo-American common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
during the 18th and 19th centuries as a way of preventing copyright law from being too rigidly applied and "stifling the very creativity which
opyrightlaw is designed to foster."
Though originally a common law doctrine, it was enshrined in statutory law when the U.S. Congress passed the
Copyright Act of 1976. The
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has issued several major decisions clarifying and reaffirming the fair use doctrine since the 1980s,
[''Nimmer on Copyright'' § 13.05.] most recently in the 2021 decision ''
Google LLC v. Oracle America, Inc.''
History
The 1710
Statute of Anne, an act of the Parliament of Great Britain, created copyright law to replace a system of private ordering enforced by the
Stationers' Company
The Worshipful Company of Stationers and Newspaper Makers (until 1937 the Worshipful Company of Stationers), usually known as the Stationers' Company, is one of the livery companies of the City of London. The Stationers' Company was formed in ...
. The Statute of Anne did not provide for legal unauthorized use of material protected by copyright. In ''
Gyles v Wilcox'',
the
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the common law. The Chancery had jurisdiction over all matters of equ ...
established the doctrine of "fair abridgement", which permitted unauthorized abridgement of copyrighted works under certain circumstances. Over time, this doctrine evolved into the modern concepts of fair use and
fair dealing
Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.
Fair dealing is an en ...
. Fair use was a common-law doctrine in the U.S. until it was incorporated into the
Copyright Act of 1976, .
The term "fair use" originated in the United States.
Although related, the
limitations and exceptions to copyright
Limitations and exceptions to copyright are provisions, in local copyright law or the Berne Convention, which allow for copyrighted works to be used without a license from the copyright owner.
Limitations and exceptions to copyright relate to a ...
for teaching and library archiving in the U.S. are located in a different section of the statute. A similar-sounding principle, fair dealing, exists in some other common law jurisdictions but in fact it is more similar in principle to the enumerated exceptions found under civil law systems.
Civil law jurisdictions have other limitations and exceptions to copyright.
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 American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
, the
National Coalition Against Censorship
The National Coalition Against Censorship (NCAC), founded in 1974, is an alliance of 50 American non-profit organizations, including literary, artistic, religious, educational, professional, labor, and civil liberties groups. NCAC is a New York-bas ...
, the
American Library Association
The American Library Association (ALA) is a nonprofit organization based in the United States that promotes libraries and library education internationally. It is the oldest and largest library association in the world, with 49,727 members ...
, numerous clinical programs at law schools, and others. The "
Chilling Effects
Lumen, formerly Chilling Effects, is an American collaborative archive created by Wendy Seltzer and founded along with several law school clinics and the Electronic Frontier Foundation to protect lawful online activity from legal threats. L ...
" 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. In 2006 Stanford University began an initiative called "The
Fair Use Project The Fair Use Project is part of the Stanford Center for Internet and Society at Stanford Law School. Founded in 2006, it offers legal assistance to "clarify, and extend, the boundaries of " fair use" in order to enhance creative freedom." It is he ...
" (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations.
U.S. fair use factors
Examples of fair use in
United States copyright law
The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of the ...
include commentary, search engines, criticism,
parody
A parody, also known as a spoof, a satire, a send-up, a take-off, a lampoon, a play on (something), or a caricature, is a creative work designed to imitate, comment on, and/or mock its subject by means of satiric or ironic imitation. Often its sub ...
, news reporting, research, and scholarship. Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor
test
Test(s), testing, or TEST may refer to:
* Test (assessment), an educational assessment intended to measure the respondents' knowledge or other abilities
Arts and entertainment
* ''Test'' (2013 film), an American film
* ''Test'' (2014 film), ...
.
The U.S. Supreme Court has traditionally characterized fair use as an
affirmative defense, but in ''
Lenz v. Universal Music Corp.
''Lenz v. Universal Music Corp.'', 801 F.3d 1126 (9th Cir. 2015), is a decision by the United States Court of Appeals for the Ninth Circuit, holding that copyright owners must consider fair use defenses and good faith activities by alleged copyrig ...
'' (2015) (the "dancing baby" case), the U.S. Court of Appeals for the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but was an expressly authorized right, and an exception to the
exclusive right
In Anglo-Saxon law, an exclusive right, or exclusivity, is a de facto, non-tangible prerogative existing in law (that is, the power or, in a wider sense, right) to perform an action or acquire a benefit and to permit or deny others the right t ...
s granted to the author of a creative work by copyright law: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright."
![Joseph Story](https://upload.wikimedia.org/wikipedia/commons/b/b3/Joseph_Story.jpg)
The four factors of analysis for fair use set forth above derive from the opinion of
Joseph Story
Joseph Story (September 18, 1779 – September 10, 1845) was an associate justice of the Supreme Court of the United States, serving from 1812 to 1845. He is most remembered for his opinions in ''Martin v. Hunter's Lessee'' and '' United States ...
in ''
Folsom v. Marsh'',
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:
The statutory fair use factors quoted above come from the Copyright Act of 1976, which is codified at . They were intended by Congress to restate, but not replace, the prior judge-made law. As Judge
Pierre N. Leval has written, the statute does not "define or explain
air use'scontours or objectives." While it "leav
sopen the possibility that other factors may bear on the question, the statute identifies none."
That is, courts are entitled to consider other factors in addition to the four statutory factors.
1. Purpose and character of the use
The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." 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.
In the 1841 copyright case ''
Folsom v. Marsh'',
Justice Joseph Story wrote:
A key consideration in later fair use cases is the extent to which the use is ''
transformative''. In the 1994 decision ''
Campbell v. Acuff-Rose Music Inc'',
the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use.
Before the ''Campbell'' decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article,
Toward a Fair Use Standard.
''
Blanch v. Koons'' is another example of a fair use case that focused on transformativeness. In 2006,
Jeff Koons
Jeffrey Lynn Koons (; born January 21, 1955) is an American artist recognized for his work dealing with popular culture and his sculptures depicting everyday objects, including balloon animals produced in stainless steel with mirror-Surface fi ...
used a photograph taken by commercial photographer
Andrea Blanch in a collage painting. Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under the first fair use factor.
The ''Campbell'' case also addressed the subfactor mentioned in the quotation above, "whether such use is of a commercial nature or is for nonprofit educational purposes." In an earlier case, ''
Sony Corp. of America v. Universal City Studios, Inc.
''Sony Corp. of America v. Universal City Studios, Inc.'', 464 U.S. 417 (1984), also known as the “Betamax case”, is a decision by the Supreme Court of the United States which ruled that the making of individual copies of complete television s ...
'', the Supreme Court had stated that "every commercial use of copyrighted material is presumptively ... unfair." In ''Campbell'', the court clarified that this is not a "hard evidentiary presumption" and that even the tendency that commercial purpose will "weigh against a finding of fair use ... will vary with the context." The ''Campbell'' court held that hip-hop group
2 Live Crew
2 Live Crew is an American hip hop group from Miami, Florida, which had its greatest commercial success from the late 1980s to the early 1990s. The group's most well-known line up was composed of Luke Campbell, Fresh Kid Ice, Mr. Mixx, and ...
's parody of the song "
Oh, Pretty Woman
"Oh, Pretty Woman" or simply "Pretty Woman" is a song recorded by Roy Orbison, written by Orbison and Bill Dees. It was released as a single in August 1964 on Monument Records and spent three weeks at number one on the ''Billboard'' Hot 100 f ...
" was fair use, even though the parody was sold for profit. Thus, having a commercial purpose does not preclude a use from being found fair, even though it makes it less likely.
Likewise, the noncommercial purpose of a use makes it more likely to be found a fair use, but it does not make it a fair use automatically.
For instance, in ''
L.A. Times v. Free Republic'', the court found that the noncommercial use of ''Los Angeles Times'' content by the Free Republic website was not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for.
Richard Story similarly ruled in ''Code Revision Commission and State of Georgia v.
Public.Resource.Org
Public.Resource.Org (PRO) is a 501(c)(3) non-profit corporation dedicated to publishing and sharing public domain materials in the United States and internationally. It was founded by Carl Malamud and is based in Sebastopol, California.
Public.Re ...
, Inc.'' that despite the fact that it is a non-profit and didn't sell the work, the service profited from its unauthorized publication of the
Official Code of Georgia Annotated
The Official Code of Georgia Annotated or OCGA is the compendium of all laws in the U.S. state of Georgia. Like other U.S. state codes, its legal interpretation is subject to the United States Constitution, the United States Code, the Code of ...
because of "the attention, recognition, and contributions" it received in association with the work.
Another factor is whether the use fulfills any of the preamble purposes, also mentioned in the legislation above, as these have been interpreted as "illustrative" of transformative use.
In determining that Prince's appropriation art could constitute fair use and that many of his works were transformative fair uses of Cariou's photographs, the Second Circuit in
''Cariou v. Prince'', 714 F.3d 694 (2d. Cir. 2013) shed light on the lens which transformative use is determined from. “What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.” Yet, the district court based its conclusion that Prince’s work was not transformative in large part on Prince’s deposition testimony that he “do
s’t really have a message,” and that he was not “trying to create anything with a new meaning or a new message.” However, the artist’s subjective message “is not dispositive.” Instead, how the artworks are “reasonably be perceived” is the focus of the transformative use inquiry.
The transformativeness inquiry is a deceptively simple test to determine whether a new work has a different purpose and character from an original work. However, courts have not been consistent in deciding whether something is transformative. For instance, in Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013), the court found that Green Day's use of Seltzer's copyrighted Scream Icon was transformative. The court held that Green Day's modifications to the original Scream Icon conveyed new information and aesthetics from the original piece.
Conversely, the Second Circuit came to the opposite conclusion in a similar situation in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d. Cir. 2021). In that case, the Warhol Foundation sought a declaratory judgment that Warhol's use of one of Goldsmith's celebrity photographs was fair use. The court held that Warhol's use was not transformative because Warhol merely imposed his own style on Goldsmith's photograph and retained the photograph's essential elements.
2. Nature of the copyrighted work
![J](https://upload.wikimedia.org/wikipedia/commons/4/48/J._D._Salinger_Signature.svg)
Although the Supreme Court 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.
To prevent the private ownership of work that rightfully belongs in the public domain,
facts and ideas are not protected by 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
The Zapruder film is a silent 8mm color motion picture sequence shot by Abraham Zapruder with a Bell & Howell home-movie camera, as United States President John F. Kennedy's motorcade passed through Dealey Plaza in Dallas, Texas, on November ...
of the
assassination of President Kennedy
John F. Kennedy, the 35th president of the United States, was assassinated on Friday, November 22, 1963, at 12:30 p.m. CST in Dallas, Texas, while riding in a presidential motorcade through Dealey Plaza. Kennedy was in the vehicle wi ...
, for example, was purchased and copyrighted by ''Time'' magazine. Yet its copyright was not upheld, in the name of the public interest, when ''Time'' tried to
enjoin
An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in p ...
the reproduction of stills from the film in a history book on the subject in ''Time Inc v.
Bernard Geis Associates''.
In the decisions of the
Second Circuit
The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate jur ...
in ''
Salinger v. Random House'' and in ''New Era Publications Int'l v. Henry Holt & Co'', the aspect of whether the copied work has been previously published was considered crucial, assuming the right of the original author to control the circumstances of the publication of his work or preference not to publish at all. However, Judge Pierre N. Leval views this importation of certain aspects of France's ''droit moral d'artiste'' (
moral rights
Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions.
The moral rights include the right of attribution, the right to have a work ...
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."
3. Amount and substantiality
![GoogleImageSearch](https://upload.wikimedia.org/wikipedia/commons/9/9a/GoogleImageSearch.png)
The third factor assesses the amount and substantiality of the copyrighted work that has been used. In general, the less that is used in relation to the whole, the more likely the use will be considered fair.
Using most or all of a work does not bar a finding of fair use. It simply makes the third factor less favorable to the defendant. For instance, in ''Sony Corp. of America v. Universal City Studios, Inc.'' copying entire television programs for private viewing was upheld as fair use, at least when the copying is done for the purposes of
time-shifting
In broadcasting, time shifting is the recording of programming to a storage medium to be viewed or listened to after the live broadcasting. Typically, this refers to TV programming but it can also refer to radio shows via podcasts.
In recent year ...
. In ''Kelly v. Arriba Soft Corporation'', the
Ninth Circuit
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District ...
held that copying an entire photo to use as a
thumbnail
Thumbnails are reduced-size versions of pictures or videos, used to help in recognizing and organizing them, serving the same role for images as a normal text index does for words. In the age of digital images, visual search engines and imag ...
in online search results did not even weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use".
However, even the use of a small percentage of a work can make the third factor unfavorable to the defendant, because the "substantiality" of the portion used is considered in addition to the amount used. For instance, in ''
Harper & Row v. Nation Enterprises'',
the U.S. Supreme Court held that a news article's quotation of fewer than 400 words from
President Ford
Gerald Rudolph Ford Jr. ( ; born Leslie Lynch King Jr.; July 14, 1913December 26, 2006) was an American politician who served as the 38th president of the United States from 1974 to 1977. He was the only president never to have been elected ...
's 200,000-word memoir was sufficient to make the third fair use factor weigh against the defendants, because the portion taken was the "heart of the work". This use was ultimately found not to be fair.
4. 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 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 copyright owner, who must demonstrate the impact of the infringement on commercial use of the work.
For example, in ''Sony Corp v. Universal City Studios'',
the copyright owner,
Universal
Universal is the adjective for universe.
Universal may also refer to:
Companies
* NBCUniversal, a media and entertainment company
** Universal Animation Studios, an American Animation studio, and a subsidiary of NBCUniversal
** Universal TV, a ...
, failed to provide any empirical evidence that the use of
Betamax had either reduced their viewership or negatively impacted their business. In ''Harper & Row,'' the case regarding President Ford's memoirs, the Supreme Court labeled the fourth factor "the single most important element of fair use" and it has 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''
that "all
our factorsare 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 for the original work.
* First, courts consider whether the use in question acts as a direct market
substitute for the original work. In ''Campbell'', the Supreme Court 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.
* 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-packs for college students, when a market already existed for the
licensing
A license (or licence) is an official permission or permit to do, use, or own something (as well as the document of that permission or permit).
A license is granted by a party (licensor) to another party (licensee) as an element of an agreeme ...
of course-pack copies.
['']
Courts recognize that certain kinds of market harm do not negate 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.
Additional factors
As explained by Judge Leval, courts are permitted to include additional factors in their analysis.
One such factor is acknowledgement of the copyrighted source. Giving the name of the photographer or author may help, but it does not automatically make a use fair. While
plagiarism and copyright infringement are related matters, they are not identical. Plagiarism (using someone's words, ideas, images, etc. without acknowledgment) is a matter of professional ethics, while copyright is a matter of law, and protects exact expression, ''not'' ideas. One can plagiarize even a work that is not protected by copyright, for example by passing off a line from Shakespeare as one's own. Conversely, attribution prevents accusations of plagiarism, but it does not prevent infringement of copyright. For example, reprinting a copyrighted book without permission, while citing the original author, would be copyright infringement but not plagiarism.
U.S. fair use procedure and practice
The U.S. Supreme Court described fair use as an
affirmative defense in ''
Campbell v. Acuff-Rose Music, Inc.
''Campbell v. Acuff-Rose Music, Inc.'', 510 U.S. 569 (1994), was a United States Supreme Court copyright law case that established that a commercial parody can qualify as fair use. This case established that the fact that money is made by a work do ...
''
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 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 case of infringement, and the defendant need not even raise the fair use defense. In addition, fair use is only one of many limitations, exceptions, and defenses to copyright infringement. Thus, a case can be defeated without relying on fair use. For instance, the
Audio Home Recording Act
The Audio Home Recording Act of 1992 (AHRA) amended the United States copyright law by adding Chapter 10, "Digital Audio Recording Devices and Media". The act enabled the release of recordable digital formats such as Sony and Philips' Digital Aud ...
establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use.
Some copyright owners claim 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 their defense.
Strategic lawsuit against public participation (SLAPP) cases that allege copyright infringement, patent infringement, defamation, or libel may come into conflict with the defendant's right to
freedom of speech, and that possibility has prompted some jurisdictions to pass anti-SLAPP legislation that raises the plaintiff's burdens and risk.
Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for ''any'' use of non-public domain material, even in situations where a fair use defense would likely succeed. The simple reason is that the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit, or having the mere possibility of a lawsuit threaten the publication of a work in which a publisher has invested significant resources.
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 licence agreements may take precedence over fair use rights.
The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not considered infringing. For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it, is considered a fair use. 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 they may sell their 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.
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.
Fair use in particular areas
Computer code
The ''
Oracle America, Inc. v. Google, Inc.'' case revolves around the use of
application programming interfaces (APIs) used to define functionality of the
Java
Java (; id, Jawa, ; jv, ꦗꦮ; su, ) is one of the Greater Sunda Islands in Indonesia. It is bordered by the Indian Ocean to the south and the Java Sea to the north. With a population of 151.6 million people, Java is the world's mos ...
programming language, created by
Sun Microsystems and now owned by
Oracle Corporation.
Google
Google LLC () is an American Multinational corporation, multinational technology company focusing on Search Engine, search engine technology, online advertising, cloud computing, software, computer software, quantum computing, e-commerce, ar ...
used the APIs' definition and their
structure, sequence and organization (SSO) in creating the
Android operating system to support the mobile device market. Oracle had sued Google in 2010 over both patent and copyright violations, but after two cycles, the case matter was narrowed down to whether Google's use of the definition and SSO of Oracle's Java APIs (determined to be copyrightable) was within fair use. The Federal Circuit Court of Appeals has ruled against Google, stating that while Google could defend its use in the nature of the copyrighted work, its use was not transformative, and more significantly, it commercially harmed Oracle as they were also seeking entry to the mobile market. However, the U.S. Supreme Court
reversed this decision, deciding that Google's actions satisfy all four tests for fair use, and that granting Oracle exclusive rights to use Java APIs on mobile markets "would interfere with, not further, copyright’s basic creativity objectives.”
Documentary films
In April 2006, the filmmakers of the ''
Loose Change
''Loose Change'' is a series of films released between 2005 and 2009 that argue in favor of certain conspiracy theories relating to the September 11 attacks. The films were written and directed by Dylan Avery and produced by Korey Rowe, Jason Be ...
'' series were served with a lawsuit by
Jules and Gédéon Naudet over the film's use of their footage, specifically footage of the firefighters discussing the collapse of the
World Trade Center
World Trade Centers are sites recognized by the World Trade Centers Association.
World Trade Center may refer to:
Buildings
* List of World Trade Centers
* World Trade Center (2001–present), a building complex that includes five skyscrapers, a ...
.
With the help of an intellectual property lawyer, the creators of Loose Change successfully argued that a majority of the footage used was for historical purposes and was significantly transformed in the context of the film. They agreed to remove a few shots that were used as B-roll and served no purpose to the greater discussion. The case was settled and a potential multimillion-dollar lawsuit was avoided.
''
This Film Is Not Yet Rated'' also relied on fair use to feature several clips from copyrighted Hollywood productions. The director had originally planned to license these clips from their studio owners but discovered that studio licensing agreements would have prohibited him from using this material to criticize the entertainment industry. This prompted him to invoke the fair use doctrine, which permits limited use of copyrighted material to provide analysis and criticism of published works.
File sharing
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.
Kiwi Camara, defending alleged filesharer
Jammie Thomas, announced a similar defense.
However, the Court in the case at bar rejected the idea that file-sharing is fair use.
Internet publication
A U.S. court case from 2003, ''
Kelly v. Arriba Soft Corp.,'' provides and develops the relationship between
thumbnails,
inline linking
Inline linking (also known as hotlinking, leeching, piggy-backing, direct linking, offsite image grabs) is the use of a linked object, often an image, on one site by a web page belonging to a second site. One site is said to have an inline li ...
, and fair use. In the lower District Court case on a motion for
summary judgment
In law, a summary judgment (also judgment as a matter of law or summary disposition) is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Summary judgments may be issued on the merits of ...
, Arriba Soft's use of thumbnail pictures and inline linking from Kelly's website in Arriba Soft's image
search engine was found not to be fair use. That decision was appealed and contested by Internet rights activists such as the
Electronic Frontier Foundation, who argued that it was fair use.
On appeal, the
Ninth Circuit Court of Appeals
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District ...
found in favor of the defendant, Arriba Soft. In reaching its decision, the court utilized the statutory 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 as the original artwork was. Second, the photographs had already been published, diminishing 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 the 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
Default judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear ...
after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.
In August 2008, Judge
Jeremy Fogel of the
Northern District of California
The United States District Court for the Northern District of California (in case citations, N.D. Cal.) is the federal United States district court whose jurisdiction comprises the following counties of California: Alameda, Contra Costa, De ...
ruled in ''
Lenz v. Universal Music Corp.
''Lenz v. Universal Music Corp.'', 801 F.3d 1126 (9th Cir. 2015), is a decision by the United States Court of Appeals for the Ninth Circuit, holding that copyright owners must consider fair use defenses and good faith activities by alleged copyrig ...
'' 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
Gallitzin is a borough in Cambria County, Pennsylvania, in the United States. It is bordered by Gallitzin Township and Tunnelhill, all of which sit astride the Eastern continental divide. Tunnel Hill and Gallitzin both are pierced by railroad t ...
, who made a home video of her thirteen-month-old son dancing to Prince's song "
Let's Go Crazy
"Let's Go Crazy" is a 1984 song by Prince and The Revolution, from the album '' Purple Rain''. It was the opening track on both the album and the film '' Purple Rain''. "Let's Go Crazy" was one of Prince's most popular songs, and was a staple f ...
" and posted the video on
YouTube
YouTube is a global online video sharing and social media platform headquartered in San Bruno, California. It was launched on February 14, 2005, by Steve Chen, Chad Hurley, and Jawed Karim. It is owned by Google, and is the second mo ...
. Four months later,
Universal Music
Universal Music Group N.V. (often abbreviated as UMG and referred to as just Universal Music) is a Dutch– American multinational music corporation under Dutch law. UMG's corporate headquarters are located in Hilversum, Netherlands and its ...
, the owner of the copyright to the song, ordered YouTube to remove the video under the
Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or ...
. Lenz notified YouTube immediately that her video was within the scope of fair use, and she demanded that it be restored. YouTube complied after six weeks, rather than the two weeks 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. On appeal, the Court of Appeals for the Ninth Circuit ruled that a copyright owner must affirmatively consider whether the complained of conduct constituted fair use before sending a takedown notice under the Digital Millennium Copyright Act, rather than waiting for the alleged infringer to assert fair use. 801 F.3d 1126 (9th Cir. 2015). "Even if, as Universal urges, fair use is classified as an 'affirmative defense,' we hold—for the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)."
In June 2011, Judge
Philip Pro
Philip Martin Pro (born December 12, 1946) is a former United States federal judge, United States district judge of the United States District Court for the District of Nevada. He is currently an arbitrator and mediator in private practice.
Educa ...
of the
District of Nevada ruled in ''
Righthaven v. Hoehn'' that the posting of an entire editorial article from the ''
Las Vegas Review-Journal'' in a comment as part of an online discussion was unarguably fair use. Judge Pro noted that "Noncommercial, nonprofit use is presumptively fair. ... Hoehn posted the Work as part of an online discussion. ... This purpose is consistent with comment, for which 17 U.S.C. § 107 provides fair use protection. ... It is undisputed that Hoehn posted the entire work in his comment on the Website. ... wholesale copying does not preclude a finding of fair use. ... there is no genuine issue of material fact that Hoehn's use of the Work was fair and summary judgment is appropriate." On appeal, the Court of Appeals for the Ninth Circuit ruled that
Righthaven Righthaven LLC was a copyright enforcement company founded in early 2010. Based in Las Vegas, Nevada; it entered agreements from its partner newspapers after finding that their content had been copied to online sites without permission, in order to ...
did not even have the standing needed to sue Hoehn for copyright infringement in the first place.
Professional communities
In addition to considering the four fair use factors, courts deciding fair use cases also look to the standards and practices of the professional community where the case comes from.
Among the communities are documentarians, librarians, makers of Open Courseware, visual art educators, and communications professors.
Such codes of best practices have permitted communities of practice to make more informed risk assessments in employing fair use in their daily practice. For instance, broadcasters, cablecasters, and distributors typically require filmmakers to obtain
errors and omissions insurance before the distributor will take on the film. Such insurance protects against errors and omissions made during the copyright clearance of material in the film. Before the ''Documentary Filmmakers' Statement of Best Practices in Fair Use'' was created in 2005, it was nearly impossible to obtain errors and omissions insurance for copyright clearance work that relied in part on fair use. This meant documentarians had either to obtain a license for the material or to cut it from their films. In many cases, it was impossible to license the material because the filmmaker sought to use it in a critical way. Soon after the best practices statement was released, all errors and omissions insurers in the U.S. shifted to begin offering routine fair use coverage.
Music sampling
Before 1991,
sampling in certain genres of music was accepted practice and the copyright considerations were viewed as largely irrelevant. The strict decision against rapper
Biz Markie
Marcel Theo Hall (April 8, 1964 – July 16, 2021), known professionally as Biz Markie, was an American rapper, singer, songwriter, DJ, and record producer. Markie was best known for his 1989 single "Just a Friend", which became a Top 40 hit in ...
's appropriation of a
Gilbert O'Sullivan
Raymond Edward "Gilbert" O'Sullivan (born 1 December 1946) is an Irish singer-songwriter who achieved his most significant success during the early 1970s with hits including "Alone Again (Naturally)", " Clair", and "Get Down".
O'Sullivan's so ...
song in the case ''
Grand Upright Music, Ltd. v. Warner Bros. Records Inc.''
changed practices and opinions overnight. Samples now had to be licensed, as long as they rose "to a level of legally cognizable appropriation." This left the door open for the ''
de minimis'' doctrine, for short or unrecognizable samples; such uses would not rise to the level of copyright infringement, because under the ''de minimis'' doctrine, "the law does not care about trifles." However, three years later, the Sixth Circuit effectively eliminated the ''de minimis'' doctrine in the ''
Bridgeport Music, Inc. v. Dimension Films
'' Bridgeport Music, Inc. v. Dimension Films'', 410 F.3d 792 (6th Cir. 2005), is a 2005 court case that was important in defining American copyright law for recorded music. The case centered on the 1990 N.W.A. track "100 Miles and Runnin'", which ...
'' case, holding that artists must "get a license or do not sample". The Court later clarified that its opinion did not apply to fair use, but between ''Grand Upright'' and ''Bridgeport'', practice had effectively shifted to eliminate unlicensed sampling.
Parody
Producers or creators of
parodies
A parody, also known as a spoof, a satire, a send-up, a take-off, a lampoon, a play on (something), or a caricature, is a creative work designed to imitate, comment on, and/or mock its subject by means of satiric or ironic imitation. Often its sub ...
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, which use a work in order to poke fun at or comment on the work itself, and
satire
Satire is a genre of the visual, literary, and performing arts, usually in the form of fiction and less frequently non-fiction, in which vices, follies, abuses, and shortcomings are held up to ridicule, often with the intent of shaming ...
, which comments 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.
For example, when
Tom Forsythe appropriated
Barbie
Barbie is a fashion doll manufactured by American toy company Mattel, Inc. and launched on March 9, 1959. American businesswoman Ruth Handler is credited with the creation of the doll using a German doll called Bild Lilli as her inspiration. ...
dolls for his photography project "Food Chain Barbie" (depicting several copies of the doll naked and disheveled and about to be baked in an oven, blended in a food mixer, and the like),
Mattel
Mattel, Inc. ( ) is an American multinational toy manufacturing and entertainment company founded in January 1945 and headquartered in El Segundo, California. The company has presence in 35 countries and territories and sells products in more ...
lost its copyright infringement lawsuit against him because his work effectively parodies Barbie and the values she represents.
In ''
Rogers v. Koons
''Rogers v. Koons'', 960 F.2d 301 (2d Cir. 1992), is a leading U.S. court case on copyright, dealing with the fair use defense for parody. The United States Court of Appeals for the Second Circuit found that an artist copying a photograph could ...
'',
Jeff Koons
Jeffrey Lynn Koons (; born January 21, 1955) is an American artist recognized for his work dealing with popular culture and his sculptures depicting everyday objects, including balloon animals produced in stainless steel with mirror-Surface fi ...
tried to justify his appropriation of Art Rogers' photograph "Puppies" in his sculpture "String of Puppies" with the same parody defense. Koons lost because his work was not presented as a parody of Rogers' photograph in particular, but as a satire of society at large. This was insufficient to render the use fair.
In ''
Campbell v. Acuff-Rose Music Inc''
the U.S. Supreme Court recognized parody as a potential fair use, even when done for profit.
Roy Orbison's,
Acuff-Rose Music
Acuff-Rose Music, Inc. was an American music publishing firm formed in 1942 by Roy Acuff and Fred Rose (songwriter), Fred Rose in Nashville, Tennessee, United States. Acuff-Rose's honest behavior towards their writers set them apart from other m ...
, had sued
2 Live Crew
2 Live Crew is an American hip hop group from Miami, Florida, which had its greatest commercial success from the late 1980s to the early 1990s. The group's most well-known line up was composed of Luke Campbell, Fresh Kid Ice, Mr. Mixx, and ...
in 1989 for their use of Orbison's "
Oh, Pretty Woman
"Oh, Pretty Woman" or simply "Pretty Woman" is a song recorded by Roy Orbison, written by Orbison and Bill Dees. It was released as a single in August 1964 on Monument Records and spent three weeks at number one on the ''Billboard'' Hot 100 f ...
" 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 mere advertising, commercial nature did not bar the defense. The ''Campbell'' court also distinguished parodies from
satire
Satire is a genre of the visual, literary, and performing arts, usually in the form of fiction and less frequently non-fiction, in which vices, follies, abuses, and shortcomings are held up to ridicule, often with the intent of shaming ...
, 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 the
Second (''
Leibovitz v. Paramount Pictures Corp.
''Leibovitz v. Paramount Pictures Corp.'', 137 F.3d 109 (2d Cir. 1998), is an influential Second Circuit fair use case.
Case background
Annie Leibovitz is a professional portrait photographer who had published a photograph of celebrity Demi Moore ...
''); the
Ninth (''Mattel v. Walking Mountain Productions''); and the
Eleventh
In music or music theory, an eleventh is the note eleven scale degrees from the root of a chord and also the interval between the root and the eleventh. The interval can be also described as a compound fourth, spanning an octave plus a ...
Circuits (''
Suntrust Bank v. Houghton Mifflin Co.''). In the 2001 ''Suntrust Bank'' case, Suntrust Bank and the
Margaret Mitchell
Margaret Munnerlyn Mitchell (November 8, 1900 – August 16, 1949) was an American novelist and journalist. Mitchell wrote only one novel, published during her lifetime, the American Civil War-era novel '' Gone with the Wind'', for which she wo ...
estate unsuccessfully brought suit to halt the publication of ''
The Wind Done Gone
''The Wind Done Gone'' (2001) is the first novel written by Alice Randall. It is a bestselling historical novel that tells an alternative account of the story in the American novel ''Gone with the Wind'' (1936) by Margaret Mitchell. While the ...
'', which reused many of the characters and situations from ''
Gone with the Wind
Gone with the Wind most often refers to:
* ''Gone with the Wind'' (novel), a 1936 novel by Margaret Mitchell
* ''Gone with the Wind'' (film), the 1939 adaptation of the novel
Gone with the Wind may also refer to:
Music
* ''Gone with the Wind'' ...
'' but told the events from the point of view of the enslaved people rather than the slaveholders. The
Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit (in case citations, 11th Cir.) is a federal court with appellate jurisdiction over the following U.S. district courts:
* Middle District of Alabama
* Northern District of Alabama
* ...
, applying ''Campbell'', found that ''The Wind Done Gone'' was fair use and vacated the
district court's injunction against its publication.
Cases in which a satirical use was found to be fair include ''Blanch v. Koons'' and ''Williams v. Columbia Broadcasting Systems''.
Text and data mining
The transformative nature of computer based analytical processes such as
text mining
Text mining, also referred to as ''text data mining'', similar to text analytics, is the process of deriving high-quality information from text. It involves "the discovery by computer of new, previously unknown information, by automatically extract ...
,
web mining and
data mining has led many to form the view that such uses would be protected under fair use. This view was substantiated by the rulings of Judge
Denny Chin
Denny Chin (陳卓光; born April 13, 1954) is a Senior United States circuit judge of the United States Court of Appeals for the Second Circuit, based in New York City. He was a United States District Judge of the United States District Court f ...
in ''
Authors Guild, Inc. v. Google, Inc.'', a case involving mass digitisation of millions of books from research library collections. As part of the ruling that found the book digitisation project was fair use, the judge stated "Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas".
Text and data mining was subject to further review in ''
Authors Guild v. HathiTrust'', a case derived from the same digitization project mentioned above. Judge
Harold Baer, in finding that the defendant's uses were transformative, stated that 'the search capabilities of the
athiTrust Digital Libraryhave already given rise to new methods of academic inquiry such as text mining."
Reverse engineering
There is a substantial body of fair use law regarding
reverse engineering of
computer software
Software is a set of computer programs and associated documentation and data. This is in contrast to hardware, from which the system is built and which actually performs the work.
At the lowest programming level, executable code consists ...
,
hardware,
network protocol
A communication protocol is a system of rules that allows two or more entities of a communications system to transmit information via any kind of variation of a physical quantity. The protocol defines the rules, syntax, semantics and synchroniza ...
s,
encryption
In cryptography, encryption is the process of encoding information. This process converts the original representation of the information, known as plaintext, into an alternative form known as ciphertext. Ideally, only authorized parties can de ...
and access control systems.
Social media
In May 2015, artist
Richard Prince
Richard Prince (born 1949) is an American painter and photographer. In the mid-1970s, Prince made drawings and painterly collages that he has since disowned. His image, ''Untitled (Cowboy)'', a rephotographing of a photograph by Sam Abell and ...
released an exhibit of photographs at the
Gagosian Gallery
Gagosian is a contemporary art gallery owned and directed by Larry Gagosian. The gallery exhibits some of the most influential artists of the 20th and 21st centuries. There are 16 gallery spaces: five in New York City; three in London; two in P ...
in New York, entitled "New Portraits". His exhibit consisted of screenshots of Instagram users' pictures, which were largely unaltered, with Prince's commentary added beneath.
Although no Instagram users authorized Prince to use their pictures, Prince argued that the addition of his own commentary the pictures constituted fair use, such that he did not need permission to use the pictures or to pay royalties for his use.
[ One of the pieces sold for $90,000. With regard to the works presented by Painter, the gallery where the pictures were showcased posted notices that "All images are subject to copyright." Several lawsuits were filed against Painter over the New Portraits exhibit.][
]
Influence internationally
While U.S. fair use law has been influential in some countries, some countries have fair use criteria drastically different from those in the U.S., and some countries do not have a fair use framework at all. Some countries have the concept of fair dealing
Fair dealing is a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.
Fair dealing is an en ...
instead of fair use, while others use different systems of limitations and exceptions to copyright
Limitations and exceptions to copyright are provisions, in local copyright law or the Berne Convention, which allow for copyrighted works to be used without a license from the copyright owner.
Limitations and exceptions to copyright relate to a ...
. Many countries have some reference to an exemption for educational use, though the extent of this exemption varies widely.
Sources differ on whether fair use is fully recognized by countries other than the United States. American University's ''infojustice.org'' published a compilation of portions of over 40 nations' laws that explicitly mention fair use or fair dealing, and asserts that some of the fair dealing laws, such as Canada's, have evolved (such as through judicial precedents) to be quite close to those of the United States. This compilation includes fair use provisions from Bangladesh, Israel, South Korea, the Philippines, Sri Lanka, Taiwan, Uganda, and the United States. However, Paul Geller's 2009 ''International Copyright Law and Practice'' says that while some other countries recognize similar exceptions to copyright, only the United States and Israel fully recognize the concept of fair use.
The International Intellectual Property Alliance
The International Intellectual Property Alliance (IIPA), formed in 1984, is a private sector coalition of seven trade associations representing U.S. companies that produce copyright-protected material, including computer software, films, televisio ...
(IIPA), a lobby group of U.S. copyright industry bodies, has objected to international adoption of U.S.-style fair use exceptions, alleging that such laws have a dependency on common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
and long-term legal precedent that may not exist outside the United States.
Israel
In November 2007, the Israeli Knesset
The Knesset ( he, הַכְּנֶסֶת ; "gathering" or "assembly") is the unicameral legislature of Israel. As the supreme state body, the Knesset is sovereign and thus has complete control of the entirety of the Israeli government (with ...
passed a new copyright law that included a U.S.-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. The law sets up four factors, similar to the U.S. fair use factors (see above), for determining whether a use is fair.
On September 2, 2009, the Tel Aviv District court ruled in ''The Football Association Premier League Ltd. v. Ploni'' that fair use is a user right. The court also ruled that streaming of live soccer games on the Internet is fair use. In doing so, the court analyzed the four fair use factors adopted in 2007 and cited U.S. case law, including '' Kelly v. Arriba Soft Corp.'' and ''Perfect 10, Inc. v. Amazon.com, Inc.
''Perfect 10, Inc. v. Amazon.com, Inc.'', 508 F.3d 1146 (9th Cir., 2007) was a case in the United States Court of Appeals for the Ninth Circuit involving a copyright infringement claim against Amazon.com, Inc. and Google, Inc., by the magazine ...
''.
Malaysia
An amendment in 2012 to the section 13(2)(a) of the Copyright Act 1987 created an exception called 'fair dealing' which is not restricted in its purpose. The four factors for fair use as specified in US law are included.
Poland
Fair use exists in Polish law
The Polish law or legal system in Poland has been developing since the first centuries of Polish history, over 1,000 years ago. The public and private laws of Poland are codified.
The supreme law in Poland is the Constitution of Poland. Poland ...
and is 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 can apply, but has to be proven by reasonable circumstances.
Singapore
Section 35 of the Singaporean Copyright Act 1987 has been amended in 2004 to allow a 'fair dealing' exception for any purpose. The four fair use factors similar to US law are included in the new section 35.
South Korea
The Korean Copyright Act was amended to include a fair use provision, Article 35–3, in 2012. The law outlines a four-factor test similar to that used under U.S. law:
Fair dealing
Fair dealing allows specific exceptions to copyright protections. The open-ended concept of fair use is generally not observed in jurisdictions where fair dealing is in place, although this does vary. Fair dealing is established in legislation in Australia, Canada, New Zealand, Singapore, India, South Africa and the United Kingdom, among others.
Australia
While Australian copyright exceptions are based on the Fair Dealing system, since 1998 a series of Australian government inquiries have examined, and in most cases recommended, the introduction of a "flexible and open" Fair Use system into Australian copyright law. From 1998 to 2017 there have been eight Australian government inquiries which have considered the question of whether fair use should be adopted in Australia. Six reviews have recommended Australia adopt a "Fair Use" model of copyright exceptions: two enquiries specifically into the Copyright Act (1998, 2014); and four broader reviews (both 2004, 2013, 2016). One review (2000) recommended against the introduction of fair use and another (2005) issued no final report. Two of the recommendations were specifically in response to the stricter copyright rules introduced as part of the Australia–United States Free Trade Agreement
The Australia – United States Free Trade Agreement (AUSFTA) is a preferential trade agreement between Australia and the United States modelled on the North American Free Trade Agreement (NAFTA). The AUSFTA was signed on 18 May 2004 and came in ...
(AUSFTA), while the most recent two, by the Australian Law Reform Commission
The Australian Law Reform Commission (often abbreviated to ALRC) is an Australian independent statutory body established to conduct reviews into the law of Australia. The reviews, also called inquiries or references, are referred to the ALRC by ...
(ALRC) and the Productivity Commission
The Productivity Commission is the Australian Government's principal review and advisory body on microeconomic policy, regulation and a range of other social and environmental issues.
The Productivity Commission was created as an independent a ...
(PC) were with reference to strengthening Australia's "digital economy".
Canada
The ''Copyright Act of Canada
The ''Copyright Act'' of Canada is the federal statute governing copyright law in Canada. It is jointly administered by the Department of Industry Canada and the Department of Canadian Heritage. The ''Copyright Act'' was first passed in 1921 and s ...
'' establishes fair dealing in Canada, which allows specific exceptions to copyright protection. 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". Since then, the Canadian fair dealing exception has broadened. It is now similar in effect to U.S. fair use, even though the frameworks are different.
''CCH Canadian Ltd v. Law Society of Upper Canada
''CCH Canadian Ltd v Law Society of Upper Canada'', 0041 SCR 339,''CCH Canadian Ltd. v. Law Society of Upper Canada'', 0041 SCR 339 'CCH''/ref> is a landmark Supreme Court of Canada case that established the threshold of originality and the bou ...
'' 004 004, 0O4, O04, OO4 may refer to:
* 004, fictional British 00 Agent
* 0O4, Corning Municipal Airport (California)
* O04, the Oversea-Chinese Banking Corporation
* Abdul Haq Wasiq, Guantanamo detainee 004
* Junkers Jumo 004 turbojet engine
* Lauda Ai ...
1 S.C.R. 339, is a landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law
The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain ...
. The Law Society of Upper Canada
The Law Society of Ontario (LSO; french: Barreau de l'Ontario) is the law society responsible for the self-regulation of lawyers and paralegals in the Canadian province of Ontario. Founded in 1797 as the Law Society of Upper Canada (LSUC; frenc ...
was sued for copyright infringement
Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.
United Kingdom
Within the United Kingdom, fair dealing is a legal doctrine that provides an exception to the nation's copyright law in cases where the copyright infringement is for the purposes of non-commercial research or study, criticism or review, or for the reporting of current events.
Policy arguments about 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.
On September 12, 2007, the Computer and Communications Industry Association (CCIA), a group representing companies including Google
Google LLC () is an American Multinational corporation, multinational technology company focusing on Search Engine, search engine technology, online advertising, cloud computing, software, computer software, quantum computing, e-commerce, ar ...
Inc., Microsoft
Microsoft Corporation is an American multinational technology corporation producing computer software, consumer electronics, personal computers, and related services headquartered at the Microsoft Redmond campus located in Redmond, Washin ...
Inc., Oracle Corporation, Sun Microsystems, Yahoo!
Yahoo! (, styled yahoo''!'' in its logo) is an American web services provider. It is headquartered in Sunnyvale, California and operated by the namesake company Yahoo Inc., which is 90% owned by investment funds managed by Apollo Global Manage ...
and other high-tech companies, released a study that found that fair use exceptions to US copyright laws were responsible for more than $4.5 trillion in annual revenue for the United States economy representing one-sixth of the total US GDP
Gross domestic product (GDP) is a monetary measure of the market value of all the final goods and services produced and sold (not resold) in a specific time period by countries. Due to its complex and subjective nature this measure is ofte ...
. The study was conducted using a methodology developed by the World Intellectual Property Organization
The World Intellectual Property Organization (WIPO; french: link=no, Organisation mondiale de la propriété intellectuelle (OMPI)) is one of the 15 specialized agencies of the United Nations (UN). Pursuant to the 1967 Convention Establishi ...
.
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. "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. "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 unlicensed manner."
Fair Use Week
Fair Use Week is an international event that celebrates fair use and fair dealing. Fair Use Week was first proposed on a Fair Use Allies listserv, which was an outgrowth of the Library Code of Best Practices Capstone Event, celebrating the development and promulgation of ARL
ARL may refer to:
Military
* US Navy hull classification symbol for repair ship
* Admiralty Research Laboratory, UK
* United States Army Research Laboratory
* ARL 44, a WWII French tank
Organizations
* Aero Research Limited, a UK adhesives comp ...
's ''Code of Best Practices in Fair Use for Academic and Research Libraries''. While the idea was not taken up nationally, Copyright Advisor at Harvard University
Harvard University is a private Ivy League research university in Cambridge, Massachusetts. Founded in 1636 as Harvard College and named for its first benefactor, the Puritan clergyman John Harvard, it is the oldest institution of high ...
, launched the first ever Fair Use Week at Harvard University
Harvard University is a private Ivy League research university in Cambridge, Massachusetts. Founded in 1636 as Harvard College and named for its first benefactor, the Puritan clergyman John Harvard, it is the oldest institution of high ...
in February 2014, with a full week of activities celebrating fair use. The first Fair Use Week included blog posts from national and international fair use experts, live fair use panels, fair use workshops, and a Fair Use Stories Tumblr blog, where people from the world of art, music, film, and academia shared stories about the importance of fair use to their community. The first Fair Use Week was so successful that in 2015 ARL teamed up with Courtney and helped organize the Second Annual Fair Use Week, with participation from many more institutions. ARL also launched an official Fair Use Week website, which was transferred from Pia Hunter, who attended the Library Code of Best Practices Capstone Event and had originally purchased the domain name fairuseweek.org.
See also
* Abandonware
Abandonware is a product, typically software, ignored by its owner and manufacturer, and for which no official support is available.
Within an intellectual rights contextual background, abandonware is a software (or hardware) sub-case of the ...
* Berne three-step test
* Copyright limitations, exceptions, and defenses in the U.S.
* Copyfraud
A copyfraud is a false copyright claim by an individual or institution with respect to content that is in the public domain. Such claims are wrongful, at least under US and Australian copyright law, because material that is not copyrighted is f ...
* Creative Commons
* Derivative work
* Fair use (U.S. trademark law)
In the United States, trademark law includes a fair use defense, sometimes called "trademark fair use" to distinguish it from the better-known fair use doctrine in copyright. Fair use of trademarks is more limited than that which exists in the cont ...
* Scènes à faire
A ''scène à faire'' (French for "scene to be made" or "scene that must be done"; plural: ''scènes à faire'') is a scene in a book or film which is almost obligatory for a book or film in that genre. In the U.S. it also refers to a principle i ...
doctrine
* TEACH Act, an additional law for educational and governmental institutions that provides some additional copyright exceptions
References
Further reading
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*
* United States. Congress. House of Representatives (2014)
The Scope of Fair Use: Hearing Before the Subcommittee on Courts, Intellectual Property, and the Internet of the Committee on the Judiciary, House of Representatives, One Hundred Thirteenth Congress, Second Session, January 28, 2014
External links
U.S. Copyright Office Fair Use Index
a searchable database of notable fair use cases in U.S. federal courts
The Fair Use/Fair Dealing Handbook
a compilation of national statutes that explicitly refer to fair use or fair dealing
CHEER
a repository of copyright educational resources for higher education
{{Copyright law by country
Digital rights
Equitable defenses
Legal doctrines and principles
United States copyright law
United States intellectual property law