Fair Use

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[edit] What is Fair Use?

As defined by Stanford University Libraries, Fair Use includes the utilization of copyrighted material which can be used for "transformative" purposes. Examples of "transformative" purposes would include the ability to comment about, criticize or make fun of a copyrighted work. If the reproduction of the material is done for any of these cases than it can be performed without seeking the approval of the original writer. For example,if you are quoting lines from author’s essay in your English paper to comment or criticize the point. Also, summarizing or quoting from news article or medical article can be called fair use.[1] In essence, fair use is a limitation on the exclusive rights of copyright holders. The Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. A use which is considered "fair" does not infringe copyright, even if it involves one of the exclusive rights of copyright holders. Fair use allows consumers to make a copy of part or all of a copyrighted work, even where the copyright holder has not given permission or objects to your use of the work.[2] In summary, Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term "fair use" is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.[3]

[edit] How to determine Fair Use?

By definition the fair use doctrine allows for some reproduction of copyrighted material however, it can be difficult to determine what is deemed fair use. In order to find out if something falls under the category of fair use there are four factors that should be considered. Such as what the material is being used for, what the copyrighted material consists of, how much of the material you are using and what effect the copyrighted material will have on the final outcome of your work. All of these factors should be examined when dealing with fair use.[4] There is often a gray area in determining how many lines or words of a particular work you can safely use without imposing on the rights of the owner of the literary work. As a result, it is better to obtain permission when it is possible. With that being said merely making reference to the author does not substitute the need for obtaining permission. [5] There are no clear-cut rules for deciding what's fair use and there are no "automatic" classes of fair use. Fair use is decided by a judge, on a case by case basis, after balancing the four factors listed in section 107 of the Copyright statute. The factors to be considered include:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- Courts are more likely to find fair use where the use is for noncommercial purposes. The nature of the copyrighted work -- A particular use is more likely to be fair when the copied work is factual rather than creative. The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- A court will balance this factor towards a finding of fair use when the amount taken is small or insignificant in proportion to the overall work. The effect of the use upon the potential market for or value of the copyrighted work -- If the court finds the newly created work is not a substitute product for the copyrighted work, it will most likely weigh this factor in favor of fair use.[6]

[edit] What is the copyright law?

To fully understand the fair use policy we must first understand the details of the copyright law. The copyright law gives the authors of both published and unpublished original work the rights to their material. This allows the author the ability to control how others are able to use the material. The copyright holder is thus authorized by law to govern the reproduction and distribution of that work to the outside community.[7] It also is important to note that the copyright law provides protection for the writer as it relates to the way in which the material was presented. This excludes "the ideas,systems or factual information obtained in the work". [8] Copyright law in the U.S. is governed by federal statute, namely the Copyright Act of 1976. The Copyright Act prevents the unauthorized copying of a work of authorship. However, only the copying of the work is prohibited--anyone may copy the ideas contained within a work. For example, a copyright could cover a written description of a machine, but the actual machine itself is not covered. Thus, no one could copy the written description, while anyone could use the description to build the described machine.[9] The Copyright Law of the United States gives the right to make photocopies of copyrighted material. This photocopying should not be used for other purposes but for ‘private study, research and scholarship’. This doesn’t mean that you are giving credit since you are using owner’s material. You either have the right to use copyrighted material under the fair use or you lack any right to the use at all. Many factors determine whether you have used the copyrighted material under fair use. Some of these factors include: whether the uses is of a “commercial nature” or for “nonprofit educational purposes”. Also, how much information from copyrighted material is used and how will it affect the marketplace after using the copyrighted material (meaning what will be the value of original work).[10]

[edit] Fair Use in Trademark Law

Fair use in trademark law protects, “descriptive uses of ordinary English language words and phrases, even if they are also used as trademarks.” In addition, it protects the right of competitors when they are comparing their products. However, one can only name competing product if they provide the full description and point the differences between each product. So this way consumer can compare two products without any confusion.[11]

[edit] Plagiarism and Fair Use

Plagiarism is defined as obtaining and using someone else's original work and passing it off as your own thoughts or ideas [12]. The academic community has begun cracking down on all forms of plagarism. Obvious forms of plagiarism include copying directly from a source document without properly citing the source or by simply buying a research paper online. However, it often becomes more difficult to distinguish plagiarism when dealing with material that is paraphrased[13]. As discussed previously the fair use doctrine allows one to use copyrighted material in a limited fashion, however, the material should never be presented as one's own work when it belongs to someone else. The take home message would be to always give due credit to the person whose original work or idea is being used.

[edit] Supreme Court Cases Involving Fair Use

Fenwick & West, is a full service law firm located in Silicon Valley,California. They primarily focus on technology and life science companies. One of their areas of expertise includes that of intellectual properties such as copyrights and trademarks. The case mentioned below was handled by lawyers at their firm.

KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. In this particular case the plaintiff KP Permanent Make-up, Inc. challenged the use of the trademark micro color by the defendant Lasting Impression I, Inc. The Supreme Court ruling stated, given that KP Permanent had begun using the term prior to the use by Lasting Impression I, Inc., KP Permanents' use was a "fair use".

The challenge that Lasting Impression I, Inc had was to prove four factors in the case. They were as follows: 1)That the words micro color were not a trademark use 2)That it was descriptive of the goods/services provided 3)The reference was “used fairly” on their label 4)The words were used in “good faith”[14]

Campbell, aka Skyywalker, et al v. Acuff Rose Music, Inc. In this 1994 case, Acuff Music, Inc. filed suit against the members of the rap music group 2 Live Crew and their record company, claiming that 2 Live Crew's song "Pretty Woman", infringed on Roy Orbison's rock song "Oh Pretty Woman", to which Acuff Rose Music, Inc has copyright. The District Court granted summary judgement for 2 Live Crew, holding that its song was a parody per the Copyright Act of 1976[15]: (1) the purpose and character of the use, including whether such use is of a 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.

Since the song was deemed a parody, it made fair use of Roy Orbison's "Oh Pretty Woman" [16]

[edit] Two big don’ts in Fair use

The line that segregates any use of copyright work as fair or unfair is becoming thinner and flexible day by day. All the disputes related to fair use are seen to arise for two reasons. 1) When copyright holder bears financial loses. 2) When any remarks/comments is derogatory to the image of copyright owner. Hence the best way to avoid any disputes related with fair use would be to shun use that is financially detrimental to the copyright owner. {We have heard of lawsuits seeking compensation only. No copyright owner has ever come out to share profit earned by a use regarded to be “a fair use” by them.} Second is a big no to any remarks that explicitly states something vexing to the copyright owner. A skill to select and play around words while expressing an opinion is of great value, especially while criticizing or reviewing any copyright entity. These are the two most important don’ts related with fair use. These two doctrines when followed would certainly avoid any litigation associated with fair use.[17]


[edit] References

  1. ↑ http://fairuse.stanford.edu/
  2. ↑ http://w2.eff.org/IP/eff_fair_use_faq.php
  3. ↑ http://en.wikipedia.org/wiki/Fair_use
  4. ↑ http://en.wikipedia.org/wiki/Copyright#Fair_use_and_fair_dealing
  5. ↑ http://www.copyright.gov/fls/fl102.html
  6. ↑ http://w2.eff.org/IP/eff_fair_use_faq.php
  7. ↑ http://www.copyright.gov/circs/circ1.html#wci
  8. ↑ http://www.copyright.gov/fls/fl102.html
  9. ↑ http://www.bitlaw.com/copyright/
  10. ↑ http://www.lib.uconn.edu/using/tutorials/LILT/htmls/fairuse.html
  11. ↑ http://fairusenetwork.org/
  12. ↑ http://telecollege.dcccd.edu/library/Module4/M4-VII/plagar.htm
  13. ↑ http://owl.english.purdue.edu/owl/resource/589/02/
  14. ↑ http://www.fenwick.com/docstore/Publications/IP/fair_use_palooza.pdf
  15. ↑ http://www.law.cornell.edu/uscode/17/107.html
  16. ↑ http://www.law.cornell.edu/supct/html/92-1292.ZS.html
  17. ↑ http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-d.html
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