Fair use

Fair use is an American legal doctrine that users may, in certain circumstances, copy or publish copyrighted works without permission. The rules were adopted from the English law of "fair dealing." Fair use, public domain, and copyight are legal issues under federal law in the U.S. The UK, Canada, Australia and India have similar national laws.

The U.S. Constitution's copyright clause allows a work to be copied in the public interest without the permission of the copyright holder. Since the primary purpose of copyright is to foster the dissemination of knowledge rather than to protect the property rights of the creator, U.S. courts decided users could make "fair use" of a creator's work in the interest of promoting knowledge, so long as the impact on the creator's rights was not too great. Over the years the courts established factors to be weighed when judging whether a use was fair in any particular case. From the 1940s to the 1970s, when protection of property rights became progressively less important to judges compared to the promotion of other social interests, the courts broadened the definition of fair use. Therefore scholars had few problems quoting or photocopying reasonable amounts from the published works of others. This "fair use" doctrine is also supposed to protect free speech by preventing copyright holders from denying critics the right to quote from that which they are criticizing. Patrick Parrinder argues, "Without the act of quotation there is little possibility of free discussion, rational debate or open reporting. Direct and acknowledged quotation is essential to scholarship since it provides both quoter and quotee with a guarantee against misrepresentation."

The U.S. Supreme Court set out the basic criteria for fair use in Folsom v. Marsh in 1841. The criteria were codified in statute law in 1976. See Title 17 U.S.C. Section 107.

Section 107 sets out four factors to be considered in determining whether or not a particular use is fair:[8]

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. 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.[9]

On the first point, the courts in recent years have never held against "fair use" by a non profit organization. The law favors fair use when the usage is commentary, analysis or parody. On the second point, the law favors fair use when the material is factual information (rather than artistic writing, such as a poem). If it is used for a different purpose, or appeals to a different audience, it more likely to be considered fair use. Unpublished works are less likely to be considered fair use. If the copyrighted work is out of print, it is more likely to be considered fair use.

On the third point, publishers recommend that fair use be limited to no more than 10% of a book or long article. "If it approaches 50 percent of the entire work, it is likely to be considered an unfair use of the copyrighted work." If you use the "heart" or "essence" of a work, it is less likely your use will be considered fair. Commercial publishers each have their own standards for how much quotation is fair use (beyond which they require written permission); Greenwood, for example, has a 300 word maximum for fair use.

On the final point, note that most material on the WWW is valued at zero when the owner gives it away for free.

British, Canadian and Australian law

In British law:

Fair dealing with a work for the purpose of criticism or review...does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.

In Canada the law similar to Fair Use is called "fair dealing."

Australian copyright law limits "fair dealing" to 10% of a work.

Public domain

Fair use does not apply to items that are in the "public domain"; they can be used in the country of applicable law in any way whatever, without asking any permission. Texts and images published in the U.S. before January 1, 1923 are in the public domain. Work created by the federal government is in the public domain (but not work created by state of local governments). Before 1963 copyright expired after 28 years and had to be renewed; items that were not renewed are in the public domain. Items that were published in the USA but never copyright in the first place are in the public domain in the USA. Items posted on web servers in the U.S. are covered only by American law.

Plagiarism

Plagiarism (taking academic credit by deception for someone else's writing) is not a matter of federal law. However it is severely punished by schools and the academic world, whether or not the material was copyrighted.

See also

• Folsom v. Marsh
• Public Domain
• Copyright law
• Patent law
• Plagiarism
• Free Software Foundation
• Trademark
• Open access

Links

• U.S. Copyright Office - Fair Use
• University of Maryland, "Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web"
• Pan Mohamad Faiz, "Legal Doctrine of “Fair Dealing” in Various Countries" (2006)