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.

Rationale

The U.S. Constitution's copyright clause (Article I, Section 8) empowers the Congress to protect copyrights, citing as a rationale "to promote the Progress of Science and useful Arts." Since the primary stated purpose of copyright in the Constitution is thus to foster the dissemination of knowledge, 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. 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.

Newer court decisions, however, have limited the right of scholars to quote from unpublished sources, such as private diaries or letters held in an archive, allowing the copyright owner to block interpretations it does not approve. Not everyone agrees with this development. 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." But the decisions themselves provided this rationale: ...

Four criteria

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

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.[11]

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 Publishing, 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.

In Castle Rock Entertainment v. Carol Publishing Group (1998), the Federal Court of Appeals ruled, "The ultimate test of fair use ... is whether the copyright law's goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it." The Supreme Court ruled in 1994, "From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, '[t]o promote the Progress of Science and useful Arts.'" The U.S. Supreme Court set out the basic criteria for fair use in Folsom v. Marsh in 1841. The criteria were codified by Congress in 1976: "The fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

Illustrations

The U.S. Court of Appeals in 2006 issued an important fair use opinion in Bill Graham Archives v. Dorling Kindersley Limited (May 9, 2006), holding that the use of reduced-size reproductions of concert posters, in a colorfully illustrated for-profit reference book, was a fair use.

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.

See fair dealing (law).

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)