One of the most prominent forms of Intellectual Property is Copyright. In fact, it is much more than a form of IP- a right invested into the creator for the restriction of copying their work. However, there are certain exceptions to all functionalities. There are a few exceptions where the copyright advantage is not afforded to the creator. The most prominent of these is the concept of “fair use”. Normally, any unauthorized use of the copyright in a work amounts to infringement of the copyright in that work. However, some unauthorized uses of copyright for certain specific reasons are allowed by law and they are not considered infringement of that work.
The larger goal of copyright is the advancement of human knowledge. The doctrine of fair use developed over a course of litigations, as courts tried to tip the balance between the rights of copyright owners, and the society’s interest in allowing copying in controlled usage[1].
Definition
Fair use is a positive defense against a potential action of copyright infringement. It is available with regards to an unauthorized use of a copyrighted work. The fair use exception permits a party to use a work without the copyright owner’s permission and without compensating the copyright owner for such use in certain circumstances[2]. The copyright law provides for certain forms of uses, such as: criticism, commentary, news reporting, academic methods, satire, review, and research, etc. that may qualify as a fair use.
The protection of fair use is usually granted for socially laudable purposes, involving the use of a copyrighted work by a person other than the original author.[3] Fair use has to be viewed not as permission to copy but as an exception to the exclusive right of the owner[4].
Fair use is not a license to use a copyrighted work without the original author’s permission, but rather, a privilege by virtue of which, the person pleading defense against a suit for infringement can escape the clutches of copyright law.[5] There is no straight-jacket formula to determine whether a use is a fair use. It depends on a case-to-case examination and on the discretion of the court. However, there are certain factors to consider.
Where contained
Fair use doctrine finds its origin in the American copyright law. For that matter, one can find its mention in the American statutes. Further, it has also been indirectly mentioned under a few notable international frameworks.
- Title 17 of the US Code/ Section 107 of the US Copyright Act, 1976:
They provide an open-ended list of purposes that may be fair use – “purposes such as criticism, comment, news reporting and teaching (including multiple copies for classroom use), scholarship or research”[6]. This is opposed to the limited listings under the fair dealing doctrine. They also provide for the Four Factors of determination of fair use.
- Article 9(2) of the Berne Convention, 1971:
“It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”
It is notable that the US Copyright Act, 1976 is widely inspired by the Berne Convention of 1971.
- Article 13 of the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement:
“Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.”
Difference between Fair Use and Fair Dealing
The doctrine of fair use is very commonly mistaken for fair dealing[7], so much so that they are often used synonymously. However, there are several notable differences between the two. They are related concepts, but not synonymous due to the difference in their meaning and scope, owing to the difference of legal systems.
The term ‘fair use’ is prominent in the United States; but fair dealing exists in other countries of common law heritage, such as the United Kingdom, Canada, India, New Zealand etc.
Fair dealing is permitted for private use, for the purposes such as: research, criticism, or review, reproduction of literary, dramatic, musical or artistic work for the purpose of reporting current events in a newspaper, magazine or similar periodical, or by broadcast, or in a cinematograph film or by means of photographs[8]. It also extends to the excerpts of a performance, or a broadcast in the reporting of current events, or for bona fide review, teaching or research[9].
Another point of distinction is the process of determination of fair dealing and fair use. Even though neither of the two is defined per se under statutes, there is the difference in the degree of evaluation. With both, the applicability of the process is evaluated by the courts case-to-case. However, fair dealing of a copyrighted work will not amount to infringement if it is by word mentioned in the dealing statute. That is, if a work is copied for a purpose other than the ones enlisted in the working statute, it will not be considered fair dealing.
In contrast, the fair use provision in the American copyright law prescribes four factors that must be included in a fair use determination:
- purpose and character of the use
- nature of the copyrighted work
- amount of the work used
- effect on the potential market or value of the work
The difference also lies in the origin of the two doctrines. The Fair Use Doctrine owes its origin to the famous American case of Folsom v. Marsh[10]. Whereas, the Fair Dealing Doctrine finds its origin in the Common Law Doctrine of Equity[11].
The Four Factors of Fair Use
In order to fully understand the doctrine of fair use, it is imperative to understand the four factors requisite for a valid fair use. Section 107 of the US Copyright Act provides:
- Purpose and Character of the Use
The first factor is concerned with the nature and purpose of use. Courts take notice of how the party claiming fair use is using the copyrighted work. The law favours non-profit, non-commercial educational uses over commercial uses, and therefore they are more likely to be found as fair use. Additionally, a new sub-factor has been developed, known as the “transformative use[12]”. It means that the copyrighted work is not used as a mirror image, but transformed by the user into a new expression, meaning and utility.
- Nature of the Copyrighted Work
The second factor is concerned with the nature of the copyrighted work, instead of the fair use work. The degree of creativity of the copyrighted work is under evaluation here. It is understandably easy to obtain a fair use exception for a work that is factual and study-based in nature, rather than the more creative, fictional works. Only the portions that are relevant to the purpose of the fair use work are granted the exception[13]. Further, the publication status of the copyrighted work is also a determinant. Unpublished works are generally beyond the horizon of fair use doctrine[14].
- Amount of the Work Used
This factor involves the stretch of use of the copyrighted work in the fair use work. The more use of copyrighted work implies less fair use advantage to the user. It is recommended that only that much of the copyrighted work shall be used which fulfills the purpose of the use. This analysis is not limited to the quantitative aspect of use, but also the qualitative one. Therefore, there are times when even the minimal use of the copyrighted work does not allow for fair use. Such is the case when the portion of the copyrighted work used is the very “heart of the work”[15].
- Effect on the Value of or Market for the Work
This factor has evolved from the examination of many case laws[16]. It is concerned with the question: whether your use will deprive the copyright owner of income?[17] It considers the extent of the potential harm to the current markets or future market of the copyrighted work in terms of its value, due to the use by the fair use claimant. This factor is closely linked to the “purpose of the use” factor. For example, if the purpose of the use is commercial, then such a use renders the fair use claim weak[18].
In addition to these factors, the Court concerned in a particular case may also consider other factors as well, depending upon the circumstances. The outcome of any given case is dependent upon the fact-specific inquiry undertaken in that case[19].
CONCLUSION
The test of determination of Fair Use differs from case-to-case. It is understandable so, because cases as such are more fact-driven, than law-driven[20]. Although there is no scientific formula to determine the extent of how much use would constitute fair use[21], it is imperative to highlight that the frameworks around Fair Use have provided some structure to the doctrine to be applied in a court of law. The lesson to be learned here should be to be as original in your work as you can, and make use of a copyrighted work only to the extent to which your reasonable purpose is served.
The bigger picture here is the purpose of copyright law—the protection of creativity of people, to encourage more creativity. Thus, the Doctrine of Fair Use allows people to draw inspiration from other’s creativity without having to worry about infringing their rights vested with the creation.
[1] Bitlaw, Fair use in Copyright Law, The fair use statute. (September 15, 2021, 07:14 PM). Accessed at: https://www.bitlaw.com/copyright/fair_use.html
[2] Copyright Alliance, Washington, D.C., Fair Use Exception To Copyright, Copyright Explained. (September 15, 2021, 07:37 PM). Accessed at: https://copyrightalliance.org/education/copyright-law-explained/limitations-on-a-copyright-owners-rights/fair-use-exceptions-copyright/
[3] Universal City Studios, Inc., v. Sony Corp. of Am., 659 F 3d 963 (971-72) (9th Cir 1981) at 479.
[4] Section 107 of US Copyright Act
[5] Ishan Sambhar, India: Concept Of Fair Use And Fair Dealing In Copyright, Mondaq, (May 13, 2020). Accessed at: https://www.mondaq.com/india/copyright/930556/concept-of-fair-use-and-fair-dealing-in-copyright
[6] 17 U.S. Code § 107 – Limitations on exclusive rights: Fair use. Accessed at: https://www.law.cornell.edu/uscode/text/17/107
[7] Donald Taylor, What is fair dealing and how does it relate to copyright?, Simon Fraser University Library, (April 19, 2021). Accessed at: https://www.lib.sfu.ca/help/academic-integrity/copyright/fair-dealing
[8] Section 52 of the Indian Copyright Act, 1957.
[9] Section 39 of the Indian Copyright Act, 1957.
[10] 9 F Cas 342 (1841)
[11] Dr Supreet Gill, Stick to the Syllabus: Lectures on IPR – The Basics (pp. 81-82). Kindle Edition.
[12] Richard Stim, Getting Permission, 7th Edition, (October, 2019), NOLO.
[13] University Systems of Georgia, News and Reports, Copyright Policy, The Fair Use Exception. (September 16, 2021, 02:37 PM). Accessed at: https://www.usg.edu/copyright/the_fair_use_exception
[14] Columbia University Libraries, Copyright Advisory Services, Fair Use (September 16, 2021). Accessed at: https://copyright.columbia.edu/basics/fair-use.html
[15] Purdue Univesity, University Copyright Office, Copyright Exceptions: Fair Use, Factors for Fair Use. (September 17, 2021, 03:13 PM). Accessed at: https://www.lib.purdue.edu/uco/CopyrightBasics/fair_use.html#factors
[16] Dr VK Ahuja, Law Relating to Intellectual Property Rights, 3rd Edition (Reprint 2020), Lexis Nexis Publication. (pp. 159)
[17] Stanford Libraries, Copyright and Fair Use, Fair Use. (September 17, 2021, 03:29 PM). Accessed at: https://fairuse.stanford.edu/overview/fair-use/
[18] Supra 13
[19] U.S. Copyright Office, More Information on Fair Use, Copyright.gov. (September 17, 2021, 03:52 PM). Accessed at: https://www.copyright.gov/fair-use/more-info.html
[20] Uzair Ahmad Khan, Fair Use Law in India under Copyright Act, iPleaders: Intelligent Legal Solutions. (February 15, 2020). Accessed at: https://blog.ipleaders.in/fair-use-law-india-copyright-act/
[21] Supra 19
YLCC would like to thank Tanmay Dhiman for his valuable insights in this article.
