Digital Law Online: Fair Use

Probably one of the most misunderstood concepts in copyright law is fair use. This is a doctrine that provides a defense to copyright infringement for some acts. But determination of whether or not something is a fair use is fact-intensive. No particular act is automatically fair use, and all four factors listed in Section 107 must be considered:

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 criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the above factors. {FN71: 17 U.S.C. §107}

II.I.1. Consider All Factors

It is important to note that while the statute lists a number of purposes for fair use copying (“criticism, comment, news reporting, teaching, scholarship, or research”), it does not say that any of those are automatically a fair use. Instead, it says that a fair use for such purposes is not an infringement, with the four factors determining whether or not the particular use is fair.

Each of the four factors listed above must be considered in determining fair use, but all four factors need not be met, nor must all four factors be weighted equally by the court. Often, the first two factors color the consideration of the others. In Harper & Row v. Nation Enterprises, {FN72: 471 U.S. 539, 225 USPQ 1073 (1985)} the Supreme Court found that the copying of about 300 words from a book as not a fair use, while in other cases the copying of an entire work was considered a fair use. Many people feel that the fourth factor is the most important, although the Supreme Court has made it clear in the “2 Live Crew” case, {FN73: Campbell v. Acuff-Rose Music, 510 U.S. 569, 29 USPQ2d 1961 (1994)} which considered whether a commercial parody of a song was a fair use, that there are no shortcuts and all four factors must be considered.

But the Supreme Court has stated that special consideration should be given to works that are “transformative.”

The enquiry here may be guided by the examples given in the preamble to Section 107, looking to whether the use is for criticism, or comment, or news reporting, and the like. The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely “supersedes the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. {FN74: 510 U.S. at 578-579, 29 USPQ2d at 1965 (citations omitted)}

II.I.2. Fair Use as a Safety Valve

Fair use provides a safety valve for the copyright law. As we have seen, the law gives broad exclusive rights to the copyright owner (reproduction, adaptation, distribution, and public display and performance), tempered by a number of specific exemptions. Fair use allows a court to find that there is not an infringement where there is no special exception but that the use of the copyrighted work is reasonable. Within the limits imposed by Congress, the court can balance the harm to the copyright owner with the public benefit of what would otherwise be an infringement. It is in part through the fair use doctrine that the copyright laws are not a restriction on free speech.

The fair use safety valve is most important for uses that are technically infringements, but where there is little or no economic harm to the market for a work by the use. A person singing a song as he or she walks down the street may be performing it publicly, but it would be unreasonable to treat that the same as performance of the song in a concert with thousands paying to attend. Most uses of digital works require the creation of intermediate copies, and it would be nonsensical to say that a purchaser of a digital work can’t use it.

But it is necessary to really understand “the effect of the use upon the potential market for or value of the copyrighted work” when considering whether a use is fair. A person making a copy of a CD to use in his or her car will have essentially no effect on the market for that work. A person making a copy of that same CD for a friend will have a limited effect on the market, since a potential sale for the CD is lost, But a person making a song available through a file-sharing service on the Internet may not realize that he or she has become a worldwide distributor of that song, in competition with the copyright owner, with substantial effect on the potential market for that work.

Next section: Indirect Infringement