BitLaw

The Fair Use Statute

The doctrine of fair use developed over the years as courts tried to balance the rights of copyright owners with society's interest in allowing copying in certain, limited circumstances. This doctrine has at its core a fundamental belief that not all copying should be banned, particularly in socially important endeavors such as criticism, news reporting, teaching, and research.

Although the doctrine of fair use was originally created by the judiciary, it is now set forth in the Copyright Act. Under the Act, four factors are to be considered in order to determine whether a specific action is to be considered a "fair use." These factors are as follows:

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. 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.

A fair use example:

It can often be difficult to determine whether or not a particular use is a "fair use". The four factors described in the statute often lead to conflicting results. This is best seen in analyzing an example fair use situation. The quotation of short passages from a novel in a negative newspaper review of that novel is generally considered a fair use. But an analysis of the four factors makes this result far from clear.

First Factor (purpose and character of the use): In analyzing the first factor, the copying party used the quotations in a for-profit newspaper (and therefore the use was for commercial gain). Generally, this would mean that the first factor weighs in favor of finding no fair use. However, the fact that the purpose of the use was to review or criticize the work is a fact favorable to a finding of fair use. While it is not clear from examining the statute, the later fact is probably more important than the first, meaning that the first factor set forth in the Copyright Act should weigh toward a finding of fair use.

Second Factor (nature of the copyrighted work): In analyzing the second factor in our example, a novel is one of the premier examples of a work which should be protected by copyright law. As a result, the second factor weighs toward a finding of no fair use. If the novel had not yet been published, this would be even more important. It can be difficult to prove fair use in the quotation of an unpublished work. However, it is not impossible, since the unpublished status of a work is only one element in the fair use analysis.

Third Factor (amount and substantiality taken): As for the third factor, only short passages from the novel were included in the review. This generally means that the third factor is analyzed in favor of a finding of fair use. However, the "quality" of the portion taken is analyzed under this factor as well as the "quantity." It is possible that these short passages are the most important part of the novel. If this were the case, this third factor might lead to a conclusion of no fair use.

Fourth Factor (effect on potential market for protected work): Finally, the fourth factor should be considered in our example. Courts have stated that this is the most important factor in the fair use analysis. In this case, the negative review would clearly impact the potential market for or value of the copyrighted work. However, courts have stated that this factor is to look only at the portion taken to analyze the effect on the potential market, and not at any negative comments contained in a review. Thus, the question is whether the inclusion of the short passages in the newspaper would affect the market for the novel. When only short passages are involved, courts have generally held that there is no market effect, and this factor should be analyzed in favor of a finding of fair use.

Conclusion: The four factors are split. However, courts would generally review this analysis and determine that, on the whole, the four factors weigh toward a finding of fair use.

Other fair use examples:

As shown by the example above, it can often be difficult to determine whether a particular use qualifies as a fair use. In most cases, a copyright attorney should be consulted before undertaking any significant activity which would rely on the fair use doctrine as a defense to copyright infringement.

Nonetheless, there are some traditional activities which have been used to illustrate when the fair use doctrine would apply. These activities include:

• small excerpts in a review or criticism for purposes of illustration or comment;
• a parody which incorporates some elements (but not all) of the work being parodied;
• quotations from a speech, address, or position paper in a news report; and
• limited copying made by a student for academic work.

In the context of computer technologies, the fair use doctrine is often used in the context of reverse engineering. Under trade secret principles, it is generally accepted to "reverse engineer" a product to determine how the product works. Reverse engineering may involve analyzing circuit board layouts, "peeling" back a integrated circuit chip, or decompiling computer software. However, it is impossible to decompile software and then analyze the results without making a copy (or a derivative work) of the software. Courts have sometimes held that the making of these copies in the context of reverse engineering is a fair use and is not copyright infringement.

First Amendment:

It is unclear whether the first amendment grants an additional privilege to make unauthorized copies of protected works beyond that granted by the doctrine of fair use. While commentators have argued that a separate defense against an allegation of copyright infringement does exist, courts have not agreed. Instead, courts have stated that the combination of the fair use doctrine (described above) and the fact that copyright does not prevent the copying of facts and ideas (as explained in the BitLaw section on unprotected works) secures society's interest in free speech.

Compulsory Licenses:

Generally, the exclusive rights granted by the United States Copyright Act (described in detail in the BitLaw section on the scope of copyright protection) may be exercised as the copyright owner sees fit. If an author of a manuscript does not want the manuscript published or distributed, the author as the copyright owner can prevent publication and distribution. Similarly, these rights can be controlled through licenses however the copyright owner desires (described in more detail in the BitLaw discussion on copyright transfers and licensing). However, several limited exceptions to this rule have been made in the Copyright Act under the guise of compulsory licenses. These compulsory licenses allow third parties to copy, perform, or distribute certain types of works without the copyright owners permission, in exchange for which the third parties must pay a predetermined royalty amount.

These compulsory licenses are extremely limited, and apply in only five circumstances:

• the production of new sound recordings based upon an existing nondramatic musical recording;
• the performance of a nondramatic musical recording in a jukebox;
• the simultaneous retransmission of television signals by cable television operators;
• the performance, display and recordal of certain works by public broadcasting entities; and
• a temporary right to retransmit television signals via satellite to household satellite dishes.

Before taking advantage of any of these compulsory licenses, an individual should consult with a knowledgeable copyright attorney.