Fair Use Scares Me!
This post examines the fair use provision in the U.S. Copyright Act. It describes and demystifies the fair use principle and provides tips on how to apply fair use to your uses of copyright materials.
Demystifying Fair Use
Despite what some think, you do not need to be an expert in copyright law to understand fair use. What “scares” some people away from applying fair use in their circumstances is that it is not “black and white” or clear-cut and it does require an analysis and application of the law to each particular set of circumstances each time you apply fair use. In addition, the application of fair use is never a certain thing unless a judge in a court of law makes that fair use determination. This means that getting comfortable with fair use is important as is being able to make a judgment call as to whether fair use applies to your use of copyright-protected materials. At the same time, it means understanding copyright risk management and being able to minimize your risks of unauthorized uses of copyright materials.
Being comfortable with fair use and understanding how it works is key before applying it to your particular circumstances. So before you determine whether you can reproduce a paragraph from an article or a chapter from a book under the principle of fair use, or use an image in your online course, you should understand certain things about fair use.
Fair Use Characteristics
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 the 1976 U.S. Copyright Act that fair use became codified and set out in the U.S. Copyright Act.
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. However, some corporate counsel or organizational policies do not allow the application of fair use in their organizations; this is usually because of the uncertain nature of fair use and the necessity to analyze each fair use situation.
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 fair use factors are:
- 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
- The effect of the use upon the potential market for or value of the copyrighted work.
Take the time to read the exact wording of the fair use provision in the Copyright Act. It’s a great starting point for you to understand fair use and sharing the provision with others is also a great way to educate them about fair use.
Fair Use Cases
The U.S. Copyright Office recently launched its free 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. I highly recommend you take a look at the Index and see how it can assist you in understanding fair use determinations. 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.
Does Fair Use Apply Outside of the U.S.?
In short, the way that international copyright law works is that you apply the country’s law where a work is being reproduced or performed. This means that whether you are reproducing an image from the U.S. or Canada or India, you apply U.S. law if the reproduction takes place in the U.S. If the reproduction takes place, for instance, in Canada, then you apply the Canadian principle of fair dealing. Fair dealing has many similar characteristics to fair use but its specifics must be studied and applied to specific circumstances at hand. Many countries’ copyright laws have a fair dealing or fair use provision that is unique according to the copyright legislation and court cases in that country.
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