Home > copyright infringement, copyrights, piracy, Uncategorized > What use is “fair” under the law of copyright?

What use is “fair” under the law of copyright?

Fair Use is one of those terms that can raise a lot of passion among people. Some people today say that all use should be more or less “fair” and it is unfair for big media companies to try and hassle people. The traditionalists in the crowd say that fair use is merely a small limitation on the rights of copyright owners so that others may use portions of their works for certain purposes.

This is truly one of the fascinating discussions of our times in IP law – but I am not going there today. Later on we will discuss these issues in some depth. Today, since I don’t want you to be charged with copyright infringement when you think your use is fair, I am going to give you the black letter traditionalist view of the law of fair use. Fair enough?

Some uses of a copyrighted work, let’s say a novel, are so useful to society, that copyright law as always recognized the concept of fair use. For example, it would be very difficult to review our novel if the reviewer could not copy, or site for the reader in the review, portions of the copyrighted work. Accordingly, a reviewer under the fair use doctrine has that right.

The idea is that what otherwise would be infringement is excused or privileged because the work is being used for a transformative purpose such as research, scholarship, criticism, or journalism. It is important to remember that fair use is an affirmative defense rather than an affirmative right. This means that a particular use only gets established as a fair use if the copyright owner decides to file and lawsuit. Then, it’s up to you as the defendant to say that your use fits into one of the categories that the law will recognize.

When thinking about whether an alleged infringement should be excused on the basis of fair use, a court will use several factors, including the purpose of the use, the character of the use, the amount and substantially of the portion of the work used, and the effect of the use on the market for the copyrighted work.

In our novel example, it will be fair use for me to take portions of the work and refer to them in my review. We want books to be reviewed and my review (even if it is a bad one) will not damage the market for the book in a copyright sense. If I take the entire file of an ebook version of the novel and upload it for thousands of people to read – well, you know, that’s probably not “fair use.”

When blogging, it’s perfectly cool to take some paragraphs from some one’s blog if you are commenting on them and if you attribute the source. Just to copy the blog, or substantial portions of the blog and palm it off as your own may get you into trouble.

(originally published in The Blogger’s Bulletin)

  1. January 6, 2010 at 12:59 pm

    I believe Larry Lessig once said that “fair use” is the right to hire an attorney. As you note, fair use is an affirmative defense and only comes into play *after* you have been sued by the copyright owner. Because copyright litigation (and federal litigation in general) is so expensive, a person who wishes to use a portion of a copyrighted work might abstain for fear of getting sued and expending monies on lawyers.

    The better route might be to pay the copyright owner a small licensing fee instead of paying the lawyers, if you can find the copyright owner.

    Fair use is a complex and fascinating topic. I look forward to more posts.

    • January 6, 2010 at 3:25 pm

      Good points Larry. I hope that most people who use small portions of a copyrighted work for criticism and the like will be able to stay on the fair side of the use line.

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