Fair use is one of the most
misunderstood principles in the U.S. Copyright Act. It causes
frustration, uncertainty and controversy. Where do you begin to understand
the complex principle of fair use? Below are
five essential facts everyone needs to know about fair use.
Fact #1
Fair use is only recently part
of the actual U.S. Copyright Act. Fair use is a doctrine created by courts in
the nineteenth century. It was not until 1976 that fair use became
codified and set out in the Copyright Act.
Fact #2
Many who apply fair use
complain that it is ambiguous and should be more specific to fact situations.
Fair use is intentionally open and flexible, and its language allows you to
apply the doctrine to your own specific fact situations.
Fact #3
Fair use may be applied by
individuals or corporations, by commercial and noncommercial entities, and in
for-profit and nonprofit situations. It all depends on the facts of your
situation and how your facts fit within the four fair use factors set out in
the U.S. Copyright Act. The factors are:
1.
The purpose and
character of the use, including whether such use is of a commercial nature or
is for nonprofit educational purposes
2.
The nature of the
copyrighted work
3.
The amount and
substantiality of the portion used in relation to the copyrighted work as a
whole
4.
The effect of the use
upon the potential market for or value of the copyrighted work
Fact #4
Fair use is never a certain
thing unless a judge in a court of law makes that determination. In practice
this means that getting comfortable with fair use is important — you need to be
able to make a judgment call as to whether fair use applies to your use of
copyright-protected content. At the same time, it means understanding copyright
risk management and being able to minimize your risks of unauthorized uses of
copyright-protected materials.
Fact #5
The U.S. Copyright Office hosts a Fair Use
Index. The goal of the Index “is to make the principles and
application of fair use more accessible and understandable to the public by
presenting a searchable database of court opinions.” You can search the Index
by category (e.g., literary, artistic, musical work) and by your type of use
(e.g., education/scholarship/research, parody, internet/digitization.) The
Index tracks court decisions at various court levels and is not intended to be
a comprehensive archive of all fair use decisions ever decided. It is designed
for lawyers and non lawyers and is user friendly. The Index sets out the name
of the case, court, jurisdiction and year of the decision, as well as whether
fair use was found by the court. You can click on the case name/citation for a
summary of the case that includes the key facts, issue, outcome and more
information about the decision. It is a very helpful database on fair use.
Copyright, New Media & E-Commerce News is distributed for
free by Lesley Ellen Harris, www.copyrightlaws.com. Information
contained herein should not be relied upon or considered as legal advice.
Copyright 2016 Lesley Ellen Harris. Please share!
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