Copyright and the Fair use doctrine
Definition of Copyright
Copyright is a type of intellectual property, that provides exclusive rights to its owner’s to make copies of the original work. The very basic definition of copyright is the right to copy. This means that work can be reproduced only after the consent of its original creators or anyone they have given authorization. The creative work can be in a literary, artistic, educational, or musical form.
Fair Use & The Four Factors for Determining the Fair Use
The fair use doctrine is described more precisely as the troublesome and the most problematic doctrine in all of copyright law. It’s because it is an open-ended doctrine. The Federal courts of the United States created Fair Use doctrine from a very famous 19th decision by Justice Joseph Story known as Folsom versus Marsh. The case was related to copywriting a publication relating to George Washington’s letters and copies of it. Justice Story formed the basis of the modern fair use doctrine which considers various factors to determine whether the copied property amounts to infringement or not, while considering the purpose and overall circumstances.
It is codified at 17 U.S.C. §107 and states that “the fair use of a copyrighted work, including such use by reproduction in copies or phono records 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.” Therefore, there are no hard-and-fast rules, only general guidelines and varied court decisions, this was done to provide expansive meaning to the definition of fair use.
Judges use four factors for measuring and determining the fair use to resolve the disputes related to fair use. These factors are not definitive; these are only the guidelines that courts are free to adapt to a particular situation on case-by-case basis. Alternatively, a judge has freedom when determining the fair use, therefore the outcome can be hard to predict in any given case. In each instance, all four factors have to be applied to the copying, and then once the factors are applied and weighed, one can determine whether it’s fair use or not. The four factors judges consider are:
- What is the purpose and character of the use: The fair use doctrine in most cases will be fair for Non- Commercial uses and Non-profit educational uses, whereas, this is not entirely true all Non-profit education and Non- Commercial uses. Transformative use may qualify for fair use. Transformative use may be for purpose such as scholarships, research, or education. Also, parody may classify as fair use because the parodist transforms the original work.
- What is the nature of the copyrighted work: When a new work is being made from a copyright it’s better to copy from published work than unpublished work. The scope of fair use is quite less for an unpublished work as compared to published work, since the author has right to control the first appearance of their expression in public. More particularly if the facts are copied from any copyrighted material it still may come under fair use.
- What is the amount and substantiality of the portion used: This factor is defined on the basis of the amount that is copied. The amount copied is directly proportional to the chance of fair use of any copyrighted work. More the amount copied lesser will be the chance of getting under fair use, similarly, lesser the amount copied more will be the chance of fair use of product. Further, even if you take a small portion of a work, your copying might not be fair if you copy the core or the most important aspect of the work.
- What is the effect of the use upon the potential market of the copyrighted work: This factor considers if there is any depreciation in the income of the copyright owner or undermines a new or potential market for the copyrighted work. If the work competes directly with the original work a law suit may be filled.
Fair use doctrine is a very important aspect of the copyright. It helps to strengthen the protection that is given to the citizens. The fair use doctrine helps to provide wider scope to the federal courts and provide better judgement. It helps to provide a more adaptive approach on the case-by-case basis.
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