Fair Use in Copyright

Fair Use in Copyright

Executive summary:

The exclusive rights granted by the Copyright Act are limited by several statutory and Constitutional limitations on copyright law. The most well known of these limitations is "fair use". However, the Copyright statute itself sets forth over ten separate limitations on copyright law. Because of the limited applicability of some of these limitations, the discussion on copyright limitations in BitLaw has been limited to the following three topics:
•Fair Use ◦Fair Use in the Copyright Act,
◦Fair Use Example, and
◦Other Fair Use Examples;

•The First Amendment; and
•Compulsory Licenses.

The fair use statute:

The doctrine of fair use developed over the years as courts tried to balance the rights of copyright owners with society's interest in allowing copying in certain, limited circumstances. This doctrine has at its core a fundamental belief that not all copying should be banned, particularly in socially important endeavors such as criticism, news reporting, teaching, and research.

 Although the doctrine of fair use was originally created by the judiciary, it is now set forth in the Copyright Act. Under the Act, four factors are to be considered in order to determine whether a specific action is to be considered a "fair use." These factors are as follows:
1.the purpose and character of the use, including whether such use is of 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; and
4.the effect of the use upon the potential market for or value of the copyrighted work.

A fair use example:

It can often be difficult to determine whether or not a particular use is a "fair use". The four factors described in the statute often lead to conflicting results. This is best seen in analyzing an example fair use situation. The quotation of short passages from a novel in a negative newspaper review of that novel is generally considered a fair use. But an analysis of the four factors makes this result far from clear.

First Factor (purpose and character of the use): In analyzing the first factor, the copying party used the quotations in a for-profit newspaper (and therefore the use was for commercial gain). Generally, this would mean that the first factor weighs in favor of finding no fair use. However, the fact that the purpose of the use was to review or criticize the work is a fact favorable to a finding of fair use. While it is not clear from examining the statute, the later fact is probably more important than the first, meaning that the first factor set forth in the Copyright Act should weigh toward a finding of fair use.

 Second Factor (nature of the copyrighted work): In analyzing the second factor in our example, a novel is one of the premier examples of a work which should be protected by copyright law. As a result, the second factor weighs toward a finding of no fair use. If the novel had not yet been published, this would be even more important. It can be difficult to prove fair use in the quotation of an unpublished work. However, it is not impossible, since the unpublished status of a work is only one element in the fair use analysis.

 Third Factor (amount and substantiality taken): As for the third factor, only short passages from the novel were included in the review. This generally means that the third factor is analyzed in favor of a finding of fair use. However, the "quality" of the portion taken is analyzed under this factor as well as the "quantity." It is possible that these short passages are the most important part of the novel. If this were the case, this third factor might lead to a conclusion of no fair use.

 Fourth Factor (effect on potential market for protected work): Finally, the fourth factor should be considered in our example. Courts have stated that this is the most important factor in the fair use analysis. In this case, the negative review would clearly impact the potential market for or value of the copyrighted work. However, courts have stated that this factor is to look only at the portion taken to analyze the effect on the potential market, and not at any negative comments contained in a review. Thus, the question is whether the inclusion of the short passages in the newspaper would affect the market for the novel. When only short passages are involved, courts have generally held that there is no market effect, and this factor should be analyzed in favor of a finding of fair use.

 Conclusion: The four factors are split. However, courts would generally review this analysis and determine that, on the whole, the four factors weigh toward a finding of fair use.