Gavin Howe
Fair use is a doctrine in United States law that permits limited use of copyrighted material without acquiring permission from the copyright holder. The doctrine originated in common law during the 18th and 19th centuries to prevent copyright law from stifling creativity. While the term fair use originated in the United States, similar principles, such as fair dealing, exist in other common law jurisdictions. The U.S. fair use doctrine is generally broader than the fair dealing rights in most countries that inherited English common law. The determination of whether a particular use qualifies as fair use depends on four factors that are evaluated by courts. These factors include the purpose and character of the use, the nature of the copyrighted work, the amount or substantiality of the portion used, and the potential impact of the use on the market or value of the original work.
| Characteristics | Values |
|---|---|
| Origin | The doctrine of "fair use" originated in common law during the 18th and 19th centuries. |
| Purpose | To prevent copyright law from being too rigidly applied and "stifling the very creativity which [copyright] law is designed to foster." |
| Current Status | "Fair use" is now enshrined in statutory law as part of the U.S. Copyright Act of 1976. |
| Application | "Fair use" permits limited use of copyrighted material without requiring permission from the copyright holder. |
| Scope | The U.S. "fair use" doctrine is generally broader than the "fair dealing" rights in countries that inherited English Common Law. |
| Determining Factors | Four factors are considered to evaluate "fair use": purpose and character of use, nature of copyrighted work, amount used, and impact on the market of the original work. |
| Flexibility | The "fair use" doctrine is flexible and subject to judicial interpretation, allowing for adaptation to changing technologies and educational needs. |
| International Recognition | Only the United States and Israel fully recognize the concept of "fair use," while some other countries have similar exceptions to copyright. |
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What You'll Learn
Fair use is a US law doctrine
Fair use is a doctrine in United States law that permits limited use of copyrighted material without requiring prior permission from the copyright holder. It is a longstanding and vital aspect of American copyright law, dating back to the 18th and 19th centuries. The doctrine originated in common law, aiming to prevent copyright law from stifling creativity. It was later enshrined in statutory law with the Copyright Act of 1976.
The US "fair use doctrine" is generally broader than the "fair dealing" rights in countries that inherited English common law. While fair use in the US is a general exception that applies to all types of uses and works, fair dealing in other countries may have more specific limitations and exceptions to copyright. For example, Canada's fair dealing laws have evolved through judicial precedents to become similar to those in the US.
The purpose of the fair use doctrine is to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works. It allows for certain limited uses that might otherwise be considered infringement, such as for criticism, comment, news reporting, teaching, scholarship, or research. Courts are more likely to find fair use when the copyrighted work is "transformed" into something new or used for a different purpose, such as using advertisements from the 1960s to discuss race in advertising.
To determine fair use, courts consider four factors: the purpose and character of the use, the nature of the copyrighted work, the amount used, and the impact on the market or value of the original work. The first factor, purpose and character, includes whether the use is commercial or for nonprofit educational purposes. Nonprofit educational and noncommercial uses are generally favoured over commercial uses. The second factor, the nature of the copyrighted work, considers whether the work is unpublished or creative, with unpublished and creative works weighing against fair use. The third factor, the amount used, evaluates the quantity of the original work that is used, with larger amounts or use of the "heart of the work" weighing against fair use. The fourth factor looks at the impact on the market for the original work, including potential markets for derivative works.
The US Supreme Court has issued several major decisions clarifying and reaffirming the fair use doctrine, including the 2021 decision in Google LLC v. Oracle America, Inc.
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It originated in common law
The term "fair use" originated in the United States and is a doctrine in United States law that permits limited use of copyrighted material without requiring prior permission from the copyright holder. It is a longstanding and vital aspect of American copyright law. The doctrine of "fair use" originated in common law during the 18th and 19th centuries as a way of preventing copyright law from stifling creativity, which copyright law is designed to foster. It was originally a common-law doctrine, but it was later enshrined in statutory law when the US Congress passed the Copyright Act of 1976.
The US "fair use doctrine" is generally broader than the "fair dealing" rights known in most countries that inherited English common law. The fair use right is a general exception that applies to all different kinds of uses with all types of works. It is based on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market for the original work. The purpose and character of the use are considered, including whether the use is commercial or for nonprofit educational purposes. Nonprofit educational and noncommercial uses are generally favoured over commercial uses and are more likely to be considered fair.
Transformative uses, or those that add something new or transform the work into something of new utility or meaning, are also more likely to be considered fair. This includes using quotations in a paper, pieces of a work in a multimedia product for teaching purposes, or including copyrighted material in commentary or criticism of the original. The nature of the copyrighted work is also considered, including whether it is published or unpublished, and the amount used relative to the length of the entire original. The more that is used, the less likely it is to be considered fair use.
The final factor is the potential impact of the use on the market or value of the work. This includes whether the use deprives the copyright owner of income or undermines a new or potential market for the copyrighted work.
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It was enshrined in the 1976 Copyright Act
The "fair use" doctrine originated in the common law of the 18th and 19th centuries as a means of preventing copyright law from stifling creativity. The doctrine was enshrined in statutory law when the US Congress passed the Copyright Act of 1976, which provided a basic framework for the current copyright law.
The 1976 Act was a comprehensive revision of copyright law, broadening the scope of federal statutory copyright protection from "published" works to works that are "fixed". It was designed to address intellectual property questions raised by new forms of communication, such as television, motion pictures, sound recordings, and radio. The Act also aimed to protect the rights of authors in the face of advancing technology and the United States' participation in the Universal Copyright Convention (UCC).
Section 107 of the 1976 Act provides the statutory framework for determining fair use, identifying certain types of uses that may be considered fair. These include the purpose and character of the use, whether it is commercial or for non-profit educational purposes, and the impact on the market for the original work.
The US "fair use doctrine" is generally broader than the "fair dealing" rights in countries that inherited English common law. The doctrine promotes freedom of expression by permitting unlicensed use of copyrighted works in certain circumstances.
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It's broader than 'fair dealing'
The doctrine of "fair use" is a part of United States law that permits limited unlicensed use of copyrighted material without acquiring prior permission from the copyright holder. It is a longstanding and vital aspect of American copyright law. The doctrine of fair use originated in common law during the 18th and 19th centuries as a way of preventing copyright law from stifling creativity. It was later enshrined in statutory law when the U.S. Congress passed the Copyright Act of 1976.
The "fair dealing" principle, on the other hand, exists in some other common law jurisdictions, such as the UK, Australia, Canada, and Ireland. It is also more similar in principle to the enumerated exceptions found under civil law systems. Fair dealing allows the use of copyrighted material without prior permission from the copyright owner, generally for the purpose of research, private study, education, satire, criticism, review, and news reporting. However, fair dealing has a narrower scope compared to fair use. It can only be applied for the given purposes, while fair use should only pass the test of fairness even if used for a purpose not specified.
Fair use is a flexible and adaptable concept, which can lead to uncertainty. It is based on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work. The purpose and character of the use are important factors in determining fair use, including whether the use is of a commercial nature or is for nonprofit educational purposes. Transformative uses, or those that add something new, are more likely to be considered fair.
Fair dealing exceptions have been criticised for their uncertainty, especially since terms such as 'parody' and 'satire' are not defined by law and there are few case laws on the same. Fair dealing jurisdictions are slowly moving towards incorporating a broader fair use principle that is more accommodating in the age of technology.
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It's a defence against copyright infringement
The concept of "fair use" is a defence against copyright infringement that originated in the United States. It permits limited use of copyrighted material without first acquiring permission from the copyright holder. This doctrine was created to prevent copyright law from stifling creativity and is enshrined in the Copyright Act of 1976.
Fair use is a vital aspect of American copyright law, allowing for unlicensed use of copyrighted works in specific circumstances. It is a general exception that applies to all types of uses and works. For example, quoting a copyrighted work to criticise, comment upon, or teach about it is considered fair use. Other examples include news reporting, research, scholarship, and search engines.
While fair use is a defence, it is not always clear-cut, and there are no bright-line rules for determining it. Courts consider four factors when deciding if a particular use is fair: the purpose and character of the use, the amount and substantiality of the portion used, the effect on the potential market for the copyrighted work, and whether the use is transformative. The first and fourth factors are typically the most influential. The purpose and character of the use consider whether it is commercial or non-profit and educational, with non-commercial and educational uses more likely to be deemed fair. The amount used is also important, with smaller portions favouring fair use, but even small amounts can be deemed unfavourable if they are the "heart" of the work. The fourth factor considers the impact on the current and potential markets for the copyrighted work.
Although fair use permits certain uses, many content creators seek licences from copyright owners to avoid potential court battles. Relying on the fair use defence is risky as courts interpret the factors differently, and it can be challenging to predict the outcome of a case.
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Frequently asked questions
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. It is a general exception that applies to all different kinds of uses with all types of works.
The doctrine of "fair use" originated in common law during the 18th and 19th centuries as a way of preventing copyright law from stifling creativity. It was later enshrined in statutory law when the U.S. Congress passed the Copyright Act of 1976.
Fair use is determined by applying four factors, which are only guidelines that courts are free to adapt to particular situations. These factors include the purpose and character of the use, the nature of the copyrighted work, the amount used, and the potential impact on the market or value of the original work.
Fair use often applies to commentary and criticism, such as quoting a few lines from a song in a music review, or using advertisement images from the 1960s to discuss the use of race in advertising. It can also include news reporting, teaching, scholarship, or research.
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