Fair use

This article is about Fair use in United States copyright law. For fair use in United States trademark law, see Fair use (United States trademark law). For the equivalent of Fair use in United Kingdom law, see Fair dealing.

Fair use is the right to use copyrighted material without permission from the copyright owner under certain circumstances. It is a legal defense against charges of copyright infringement within United States federal copyright law. It is used by writers, photographers, illustrators, designers, businesspersons, musicians, song and script writers, filmmakers, teachers, researchers, advertisers, Webmasters and Web designers, and publishing houses—in short, anyone who publishes in any venue, as well as those who assist publishers such as librarians, archivists, and museum curators. Fair use provides that, in certain circumstances, a greater societal good is achieved when limited material from copyrighted works can be used without prior permission of the copyright holder. Initially adopted from the English law of "fair dealing", the permissible ranges and limits of fair use are by design a matter of considerable controversy—and accompanying confusion, as a by-product of that design—among both by businesses with a financial interest in protecting intellectual property, and writers who would wish to employ such property to creative advantage.

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. In contrast to most laws which are made by Congress, the basic points of fair use were created by the courts, and later codified by Congress. The Supreme Court announced 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. Federal Court of Appeals ruled in 1998, "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."

From the 1940s to the 1970s, the "New Deal" era, 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. Under its rules scholars had few problems quoting or photocopying reasonable amounts from the published works of others. Fair use doctrine came to be seen as a protection of free speech by preventing copyright holders from denying certain critics the right to quote to make a point the copyright holder does not want to see in print.

In a broader sense, scholarship has always depended on exact quotations and fair use rights have been central to most scholarly books and articles. As Patrick Parrinder, a professor of English literature at the University of Reading in UK 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."

Fair use as a right

Federal copyright law refers to "the right of fair use.". Some large copyright owners, especially those associated with the commercial music and film industry, argue that fair use is not really a right. Hollywood and its allies have succeeded, through the Sonny Bono Copyright Term Extension Act of 1998, in extending the breadth and length in years of copyright, thus blocking the move of many items into the public domain . Jack Valenti, Chairman of The Motion Picture Association, explained to Congress in 1995:

"Copyright term extension has a simple but compelling enticement: it is very much in America’s economic interests. . . . Intellectual property, consisting of the core copyright industries, movies, TV programs, home video, books, musical recordings and computer software comprise almost 4% of the nation’s Gross Domestic Product, gather in some $45 billion in revenues abroad, and has grown its employment at a rate of four times faster than the annual rate of growth of the overall U.S. economy."

The chairman of the Senate Judiciary Committee supported extension, warning that otherwise:

"American works will fall into the public domain 20 years before those of our European trading partners, undercutting our international trading position and depriving copyright owners of two decades of income they might otherwise have."

California Senator Diane Feinstein supported the extension, arguing:

"Because the United States is the world’s leader in the production of intellectual property, and because the State of California is home to many of the leading copyright industries, this issue is of great importance to me. . . . Intellectual property—the collective creative output of America’s makers of movies, music, art, and other works—is an enormous asset to the Nation’s economy and balance of trade. . . . copyright-related industries contributed more than $385 billion to the U.S. economy in 1994, with more than $50 billion in foreign sales."

On the other side many scholarly groups have explicitly emphasized that fair use is a valuable right. "It is the policy of the Special Libraries Association to reaffirm the right of fair use." The Association of Research Libraries argues, "In order for copyright to truly serve its purpose of 'promoting progress,' the public's right of fair use must continue in the electronic era." Official humanities groups like the American Council of Learned Societies, a consortium of the main scholarly societies in the humanities and social sciences, says, "The right of fair use is central to scholarship and the scholarly community and it should be embraced boldly."

Four criteria

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."

More specifically, Section 107 of the U.S. Code in 1976 set 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.[19]

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 or song). If it is used for a different purpose, such as a statement in a reference book, or is directed to a different audience, it more likely to be considered fair use. Unpublished works are less likely to be considered fair use, because the author has a right to determine first publication. 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 priced at zero when the owner gives it away for free.

Unpublished texts

Since the 1980s court decisions 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. The Church of Scientology, wanted absolute control over the unpublished writings of their founder L. Ron Hubbard, and sued in federal court and lost. but in 1987 writer J.D. Salinger did win a highly visible lawsuit regarding a biography that quoted 200 words from his unpublished letters. Scholars, such as the American Historical Association, feared restrictions on use of unpublished letters threatened their right of free inquiry. In 1993 Congress overruled the Salinger decision and changed the copyright law to explicitly allow fair use of unpublished texts. Wilson states that, currently, use of unpublished works without permission—even if the use is minimal or is a close paraphrase—is especially dangerous.

Photographs

Because copyrighted photographs are typically used as a whole work or the heart of the work, Wilson urges that, as rule, permission should be sought whenever practicable.

Public domain

Fair use does not apply to items that are in the "public domain" because there is no copyright holder, although access to such works may be restricted by third-party proprietary rights. 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 1976, copyrights 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 rules are often confused with fair use and copyright rules, but they are entirely separate. 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
• Fair Use Network, "Major Cases," synopses of major US federal court decisions, with links to full text
• 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)

Bibliography

• Benedict, Michael Les. "Historians and the Continuing Controversy over Fair Use of Unpublished Manuscript Materials." American Historical Review 1986 91(4): 859-881. Full text: in JSTOR;
• Joyce, Craig, et al, Copyright Law (7th Edition, 2006)
• Klein, Benjamin, et al. "The Economics of Copyright "Fair Use" in a Networked World" The American Economic Review, Vol. 92, No. 2, (May, 2002), pp. 205-208 in JSTOR
• Litman, Jessica. Digital Copyright (2001) excerpt and text search
• McJohn, Stephen M. Copyright: Examples And Explanations (2006) excerpt and text search
• Merges, Robert P. et al. Intellectual Property in the Technological Age (2006), 1221pp; excerpt and text search

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