Intellectual Property - Fair Use

The fair use doctrine is a body of law and court decisions which provides for limitations and exceptions to copyright protection in the United States (Wikipedia, 2004). Scholarly Communication Center (2002) continues and says the purpose of the fair use doctrine is to allow limited use of copyrighted material without requiring prior permission from the copyright holder. Therefore if a use is considered a fair use, the copyright holder has no rights to control that use and no license or permission is required: you can simply go ahead and make the copies.

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 would otherwise be considered infringement (Wikipedia, 2004).

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

• The purpose and character of the use, including whether such use is of a commercial nature or is non-profit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• 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 The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (Caltech, 2000, http://www.ott.caltech.edu/security/Fair_Use.htm, and Scholarly Communication Center, 2002, http://www.lib.ncsu.edu/scc/tutorial/fairuse.html ).

Analysis of fair use is highly fact dependent and not one factor is more important than another (Caltech, 2000). However because of the absence of strict guidelines and the deliberate ambiguity of fair use, Wikipedia (2004) says it is commonly misunderstood. Consumers of copyrighted works, for example, may believe that they can legally make a copy of creative material for personal use without authorization from the copyright owner. However, such activity has not been recognized as fair use. Therefore it is important to look into each case to determine the extent of fair use or whether it is infringement. Fair use is not considered an infringement (Encyclopaedia Britannica, 1990, p.616). Fair use is an affirmative defence to copyright infringement (Wikipedia, 2004). This means that if the defendant’s actions do not constitute an infringement of the plaintiff’s rights, fair use does not even arise as an issue.

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References

Caltech (2000) “Fair Use,� retrieved September 20, 2004, from http://www.ott.caltech.edu/security/Fair_Use.htm

Encyclopaedia Britannica (1991) Sydney: Encyclopaedia Britannica Inc.

Scholary Communication Center (2002) “Limitations on Exclusive Rights: The Fair Use Doctrine,� retrieved September 20, 2004, from http://www.lib.ncsu.edu/scc/tutorial/fairuse.html

Wikipedia: The Free Encyclopaedia (2004) “Fair Use,� retrieved September 20, 2004, from http://en.wikipedia.org/wiki/Fair_use

Julie Bui 15:51, 28 Oct 2004 (EST)