FAQs on Fair Use
What is fair use?
Does it specify what can be done with someone else’s copyrighted work?
What are the four fair use factors?
So how do such things get decided?
Is fair use a right?
But fair use is a limit on copyright, isn’t it?
Aren’t all personal uses of a work a fair use?
But aren’t there clear-cut cases of fair use? What about the Sony Betamax case?
But we’ve moved beyond videocassette recorders now; technology can enable so many uses of creative works. Why shouldn’t we be able to enjoy those new uses?
Copyright owners, the consumer electronics industry -- shouldn’t everyone be focused on consumers?
What is fair use?
“Fair Use” is a defense to copyright infringement. It applies to when a copyrighted work is used for certain, usually noncommercial, purposes such as criticism, comment, news reporting, teaching, scholarship, or research. When the defense applies it allows someone to use a portion of a copyright work without getting the permission of the copyright owner or having to compensate the copyright owner. The fair use defense is codified in section 107 of the Copyright Act
Back to top
Does it specify what can be done with someone else’s copyrighted work?
Not really. There is no bright-line test in the law that says one action is fair use and another is not. Rather there are four factors that are considered in determining whether a particular use is a fair use.
Back to top
What are the four fair use factors?
The first takes into account “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The second factor considers “the nature of the copyrighted work,” meaning those that are creative in nature, such as a musical composition, sound recording, motion picture, videogame, etc., would receive more protection than fact-based works. The third factor considers “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” meaning use of an entire work is less likely to be found to be a fair use. The fourth factor considers “the effect of the use upon the potential market for or value of the copyrighted work.”
Back to top
So how do such things get decided?
The fair use defense has been around for a very long time. As a result, there are a wide variety of instances where the fair use defense has been raised in civil cases, some successfully and some not. In addition, there are fair use guidelines that apply exclusively to educators and librarians.
Back to top
Is fair use a right?
No. There is no right to make “fair use” of a work. An individual does not have the “right” to make use of another’s copyright work. If that were the case, someone might be able to publish excerpts from your private letters against your wishes or break into your house in order to get a copy of a valuable photograph under the guise that they had a “right” to get a copy of your copyrighted work to make a fair use of it. Fair use only arises when someone already has a copy of a copyrighted work and makes copies, distributes, performs, alters, or displays that work and the copyright owner subsequently challenges that use of the work as being an infringement. In that case, the person could raise a defense of fair use.
Back to top
But fair use is a limit on copyright, isn’t it?
Yes, it is. Copyrights are considered intangible property. Similar to other forms of property, such as real property (like land) or personal property (like your TV), the rights granted to the property owner are limited. For instance, your neighbor cannot leach toxic chemicals from his yard into yours. He can’t build a convenience store in his front yard without the proper zoning. Similarly, the copyright law also includes certain limitations to a copyright owners’ rights. One such limitation is the fair use defense.
Back to top
Aren’t all personal uses of a work a fair use?
No. For example, if you choose to take a copyrighted work without compensating the owner and use it for personal use, rather than sell it, you could still be found by a court to be performing a commercial use. In the 2002 Napster case, the U.S. Ninth Circuit court ruled that making copies of copyrighted works in order to avoid paying for them was a commercial use.
Back to top
But aren’t there clear-cut cases of fair use? What about the Sony Betamax case?
Yes, in the Sony decision of 1984, the U.S. Supreme Court ruled that it was fair use to use a videocassette recorder to tape a broadcast TV show for later viewing. This is often referred to as “time shifting.” But that decision was not a license by the High Court to approve just any noncommercial use, nor was it a license to make copies of any work. The case merely held that it was a fair use to record a show for the purposes of watching it later.
Back to top
But we’ve moved beyond videocassette recorders now; technology can enable so many uses of creative works. Why shouldn’t we be able to enjoy those new uses?
We all should, and we are – legally – more and more every day. Creators of copyrighted works want people to enjoy their works, and they want to be compensated for the investment they make in the creative process. They have every incentive to work with technology companies to ensure their works can be made available, legally, in any format the consumer desires. With this system, the consumer has broad choice, the technology companies find customers for their products, creators find new audiences for their works, and those creators are encouraged to create new works.
Back to top
Copyright owners, the consumer electronics industry -- shouldn’t everyone be focused on consumers?
Absolutely. Consumers are the lifeblood of creative industries. A songwriter in Nashville doesn’t write a new work to sing to himself in the shower. A director doesn’t gather a small army of workers to put together a movie to show it to friends in her family room. An author doesn’t write a novel and then use the manuscript as a foot rest. Creators love to create new works, but they really love that others can enjoy the fruits of their labor. They have every incentive to see that their work is available to as many people as possible. We consumers have a long history of being willing to pay for the enjoyment and entertainment of a wide range of creative works. Just because technology has introduced ways for us to get content without paying for it doesn’t mean this is how we should behave. If we as consumers want artists, authors and publishers to continue to create great works for us, we want to hold up our end of the bargain. That also benefits society as a whole, as these creators operate in industries that employ many people all over America.
Back to top
about us
