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Fair Use in the Digital Age

The unauthorized use of copyrighted material is more widespread and more immediately a part of our lives today than ever. We need only switch on our personal computers and open our Web browsers to encounter a new world of unauthorized reproductions. As unauthorized copying finds ever new media for testing the limits of legality, the doctrine of fair use scrambles to keep up.

One of the most important limitations in the exclusive rights of a copyright holder is the “fair use” doctrine, which developed judicially but is now codified in 17 USC §107.

 Section 107 provides that the “fair use” of a work for purposes such as “criticism, comment, news reporting, teaching … scholarship or research” does not constitute copyright infringement.

Essentially, fair use is a limitation on the copyright owner’s rights that permits the unauthorized use of protected expression if the use is reasonable and does not impair the value of the copyrighted work or supplant the work’s actual or potential markets. This limited privilege helps ensure that the temporary monopoly conferred by a copyright advances the constitutional purpose of promoting the spread of knowledge and creativity. See US Const art I, §8, cl 8.

Section 107 sets out four (nonexhaustive) factors to be considered in determining whether or not a particular use is “fair”:

  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 on the potential market for or value of the copyrighted work.

There are so many examples of fair use that we see every day, including quotations for critical reviews and in scholarly work.

The tricky part is that there is no bright-line test to determine whether a specific use constitutes a “fair use” — rather, the courts take a case-by-case approach. Similarly, there is no specific number of words, lines, or notes that may safely be taken without permission. Indeed, reported on a federal judge who held that publishing an entire article without the rights holder’s authorization was a fair use of the work. But that seems like a rarity.

So where does this leave us? Always review the case law interpreting each element listed in 17 USC §107 and bear in mind the difficulty of making definitive judgments in this area. Don’t lull yourself into thinking that simply acknowledging the source of copyrighted material (e.g., citing or referencing the attribution of text or images) is enough; it neither creates a fair use nor substitutes for getting the copyright owner’s permission. 

The bottom line on fair use: When in doubt, get permission.

For more on content clearances, licensing, and fair use on the Internet, go to CEB’s book Internet Law and Practice in California, chap 14.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

2 replies on “Fair Use in the Digital Age”

Ms. Brook’s advice (when in doubt, get permission) is standard risk-averse advice, but it leads to a long-term diminution of fair use. If everyone acts in a risk-averse manner and asks permission, then when fair use is litigated copyright owners can point to a “custom and practice” of licensing, which is one of the factors that is considered in determining whether a use is fair. See James Gibson, Risk-Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007). But if there is a custom and practice that most reasonable people engage in a particular use without getting permission, then it is more likely to be considered fair (if it does not destroy the market, like P2P). Thus, unless you are facing a particularly litigious copyright owner, it is far better to ask forgiveness than to ask permission. If you truly think a particular practice is fair, and you would agree it was fair if you were the copyright owner, then you should be willing to stand up for your fair use rights by acting that way. If you are contacted by a copyright owner, you can decide after the fact whether to settle or fight. Yes, this course of conduct is a little more risky; but otherwise, you end up diminishing the scope of fair use for everyone. – Prof. Tyler T. Ochoa, Santa Clara University School of Law

As a professor myself, I whole-heartedly agree with Prof. Ochoa’s comments (and I thank Ms. Brook for raising this important issue). I believe in employing and expanding fair use, as well as other rights, which I attempt to do. That said, if I were advising my client, I would lay out the risks and rewards, while recommending caution.

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