Fair use

Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. It is based on free speech rights provided by the First Amendment to the United States Constitution. The term "fair use" is unique to the United States; a similar principle, fair dealing, exists in some other common law jurisdictions. Civil law jurisdictions have other limitations and exceptions to copyright.

United States trademark law also incorporates a "fair use" defense. While the names are the same, the doctrines are quite different.


Fair use under United States law

The legal concept of "copyright" was first ratified by the United Kingdom's Statute of Anne of 1709. As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgment," which later became "fair use," that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107, reprinted 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The four factors of analysis for fair use set forth above derive from the classic opinion of Joseph Story in Folsom v. Marsh, 9 F.Cas. 342 (1841), in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The court rejected the defendant's fair use defense with the following explanation:

[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.... In short, we must often... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

Once these factors were codified as guidelines in USC § 107, they were not rendered exclusive. The section was intended by Congress to restate, but not replace, the prior judge-made law. Courts are still entitled to consider other factors as well.

Fair use tempers copyright's exclusive rights to serve the purpose of copyright law, which the U.S. Constitution defines as the promotion of "the Progress of Science and useful Arts" (I.1.8). Some commentators have also suggested that the First Amendment's protection of free speech necessitates some form of fair use defense, because some things simply cannot be said without some amount of copying. This principle applies particularly well to the case of criticism and also sheds light on various other limitations on copyright's exclusive rights, particularly the scenes à faire doctrine.

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Copyright and Fair Use in the Classroom, on the Internet, and the World Wide Web

The copyright protections that we normally associate with print also govern the use of audio, video, images, and text on the Internet and the World Wide Web (WWW). The intuitive interface of the WWW makes it easy for the computer user to copy and use images, text, video and other graphics that are likely to be protected by copyright. A document may be copyrighted even if it does not explicitly state that it is copyrighted. As a result, it is a good idea to assume materials such as documents, images, or video clips are copyrighted. Educators can avoid copyright violations and legally use copyrighted materials if they understand and comply with the fair use guidelines. If you believe, after you review this document, that your proposed use does not comply with fair use guidelines, you always have the option to ask for permission from the copyright holder.

This document's purpose is to help faculty, students and staff make informed decisions before using materials in the classroom, for course reserves, or the Internet or World Wide Web. This document provides:

1. An introduction to copyright.
2. An introduction to fair use.
3. Fair Use Guidelines for Educational Multimedia, a review of guidelines designed to help faculty, staff, or students comply with fair use guidelines when using images, computer programs, or other materials obtained via the Internet or WWW
4. A sample letter to use to request permission to use copyrighted materials.

More...

http://www.umuc.edu/library/copy.shtml