Fair Use

There Ought to be a Law Series SM

Fair Use:

CONFU is Not a New Food

What is "fair use?" Why is it so misunderstood? Why is there so much ado about a law that is designed to allow one to make a limited number of copies of limited amounts of another’s work without calling it infringement. This is a huge philosophical leap for some and creates a great ruckus in international and political halls.

A lot has been said about the "fair use" of a piece of copyrightable subject matter, such as a text, visual work or sound. In this issue, as more fully stated below, there is always a risk in using other’s materials. See Copyright Basics and search for the many other articles on this site defining copyright.

If there copyrightable subject matter, there might be a risk of infringement liability. Of major importance is that the Company should have in place " Advertising Injury Coverage" in the insurance policy portfolio.

The law on Fair Use is of international magnitude with the arrival of the Internet. There are ongoing "CONFU" meetings (see the UN web site www.un.org) over these complex issues, and this body of law is in a constant state of change. More on this in Part 2.

The Copyright Issues: under "standard" copyright thinking (see Copyright Basics) It is a technical infringement to copy or prepare derivative works of, distribute, sell and in other ways deal in a quantum of another’s copyrightable materials without permission. How much, when, for what purposes and whether for charity are all defined by the fact pattern. It is well settled that copying lines of text from an Internet source and pasting it onto another site is a "copying," and thus an infringement without something to ameliorate the act. Even temporarily caching materials being sent is a "copy" of that file, though the recent DMCA and other laws have made certain cached and other temporary copies "fair uses."

It is always best, if needed, to have written licenses to use other’s materials. This is called "Clearance" On top of this is the fact that the value of Intellectual Property is increasing at a great pace. Technology constantly challenges the laws to make the best sense of it all. Unfortunately, like all other things in cyberspace, fair use is changing. The law in its raw form is cited as 17 U.S.C. Sec. 106 (what copyright rights are) and 107 (fair use exception):

The Law: Section 106, entitled "Exclusive rights in copyrighted works," states that, "Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

This means, generally, and subject to many cases, that the owner, or "publisher" (music), or "producer," or whoever is named as such on the copyright registration certificate, has the EXCLUSIVE right to (for the life of the "author" plus 70 years)

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
(Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101-318, § 3(d), July 3, 1990, 104 Stat. 288; Pub. L. 101-650, title VII, § 704(b)(2), Dec. 1, 1990, 104 Stat. 5134; Pub. L. 104-39, § 2, Nov. 1, 1995, 109 Stat. 336.)

So where is the Fairness in that? It is the exception to these exclusive rights, under Section 107 entitled, "Limitations on exclusive rights: Fair use." Since this is an exception to the exclusive rights, this section starts out:

1. "Notwithstanding the provisions of sections 106 and 106A the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section,

For purposes such as: Here the section specifies the purposes that may be made of a work and be within a fair use. Hundreds of cases discuss this requirement. They are not intended to be the only purposes. They are to be guidelines for judges and juries:

(1) criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,

(a) "is not an infringement of copyright."

(b) The Section then has another requirement, Factors to use to see whether the use under the above purposes can be fair in the particular case: "In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(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.

(2) Then the section states, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

(a) The fact of non publication depends on a very "technical" definition of "publish" See Copyright Basics.

(b) The factor that the potential market is altered may not be considered if the work is not published and trade secrets law may apply to further protect such a work.
(Pub. L. 94-553, title I, § 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101-650, title VI, § 607, Dec. 1, 1990, 104 Stat. 5132; Pub. L. 102-492, Oct. 24, 1992, 106 Stat. 3145.)

That is the law. What OUGHT it to be? What ideas on this do you have? Then come the many cases that interpret this, contained in Part 2 Fair Use And the Internet.

Comments to: ought@iplegal.com