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Fair use

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The fair use doctrine is a body of law and court decisions which provide limitations and exceptions to copyright. It is a provision in the United States and a handful of other countries' copyright law. Fair use attempts to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works[?], by allowing certain limited uses that might otherwise be considered infringement.

Similar copyright exemptions can be found in many nations' copyright statutes. Most common law countries have a related doctrine known as "fair dealing". The main difference is that "fair use" tends to be an open-ended legal doctrine (the copyright statute provides examples of fair use), while "fair dealing" is constrained to an enumerated list of causes for exemption.

The current U.S. guidelines are spelled out in 17 USC § 107, excerpted here:

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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
( source: http://www4.law.cornell.edu/uscode/17/107 )

Table of contents
1 Fair use: a defense
2 Fair use and parody
3 Other fair use cases

Purpose and character

This is basically the intention and motivation behind the use; for example, there is a difference between a few shots taken from a film for a nonprofit review of the film and taking a few shots to include in a for-profit compilation of film reviews. If it is obvious that the user is attempting to make a profit from the use, then it suggests that it is more likely that the use is infringement. However as can be seen in the parody cases discussed below such a commercial use is not dispositive as their are ways to use substantial portions of the work and still successfully claim fair use.

Nature of the work

[Need explanation and examples of this factor.]

Amount and substantiality

This relates to how much of the original copyrighted work is used in the new work; if only a very small amount is used in relation to the original (perhaps a few sentences for a book review) then chances are that the sample is a case of fair use. However, if a very substantial amount is used (perhaps an entire chapter, taken verbatim) then this will often be considered copyright infringement. One of the few cases where this factor is irrelevant is in sampling a piece of a copyrighted sound recording. If no permission is obtained to use a sample, then no matter how small the sample, an infringement has been committed.

Effect upon work's value

[Need explanation and examples of this factor.]

The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Fair use: a defense Fair use must be pleaded as affirmative defense which means that a defendant accused of copyright violation bears the burden of proving in court that his copying was fair use, and therefore not infringement. A defendant may use a work claiming fair use, it is up to the copyright owner to bring the suit to obtain an injunction to prevent its use and/or to claim damages for a use that has already occurred.

For this reason, publishers frequently make claims of copyright infringement over uses that are clearly covered as fair use, hoping that the user will refrain from the use rather than spending resources in his defense. In some cases where a claim of fair use would clearly apply, bringing such a frivolous lawsuit might be considered vexatious litigation, barratry or the intentional tort of abuse of process. Such a tactice may be a crime in the state of Texas and several other jurisdictions. Under Rule 11 of the Federal Rules of Civil Procedure their may also be severe sanctions to pay for bringing and litigating frivolous lawsuits. However, since there are elements of interpretation in the § 107 and underlying case law the plaintiff's lawyers may have an argument that they are seeking an extension, clarification or novel interpretation of the law and such an argument may be successful in the circumstances. It is also important to note that allegation that someone has filed a frivilous lawsuit when it is not may, in itself be seen under Rule 11 as frivolous subjecting the movant to sanctions.

Fair use and parody

Producers or creators of works that is a satire or parody of a copyrighted work have been sued for infringement by the targets of their satire, even though such use may be protected as fair use.

Roy Orbison's publisher, Acuff-Rose Music Inc.[?], sued 2 Live Crew in 1989 for a parody of Orbison's "Oh, Pretty Woman". In 1994 the Supreme Court of the United States ruled in Campbell v. Acuff-Rose Music that parody even if done for profit, was covered under the fair use doctrine. Link to the song article for more information, including the text of the lyrics of the two songs that are reproduced there as fair use.

A more recent example of this tactic is the suit against the publication of The Wind Done Gone[?], which is a satire of Gone With the Wind, reusing many of the characters and situations, but telling the events from the point of view of the slaves rather than the slaveholders. On October 10, 2001, in the case Suntrust v. Houghton Mifflin the Eleventh Circuit Court of Appeals decided against the owner of Gone With The Wind vacating an injunction prohibiting the publisher of The Wind Done Gone from distributing the book. This decision, which is an extension of the Pretty Woman decision (discussed above) set a further precedent in the Eleventh Circuit (Alabama, Florida, and Georgia) that the creation and publication of a carefully-written parody novel counts as fair use.

Other fair use cases

More recently, there have been some notable cases denying some defenses of fair use. A recent court case, Kelly v. Arriba Soft Corporation, decided that Arriba Soft wasn't allowed to use thumbnails of pictures from Kelly's website in Arriba's image search engine. This decision has been contested by Internet rights activists such as the Electronic Frontier Foundation, who say that it is clearly covered under fair use.

See also: Copyright, Copyright protection, Cyber law, Limitations and exceptions to copyright, Berne three-step test.



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