In the United States, the qualifying criteria for fair use, including modifying a copyrighted book, are based on four factors as outlined in Section 107 of the U.S. Copyright Act. These factors help determine whether the use is considered “fair” and thus exempt from requiring permission from the copyright holder:
1. Purpose and Character of the Use
- Transformative vs. Reproductive: If the modification adds new expression, meaning, or message (transformative use), it is more likely to qualify as fair use. For example, commentary, criticism, parody, or educational purposes are often considered transformative.
- Commercial vs. Non-commercial: Non-commercial uses are more likely to be fair use, though commercial uses may still qualify if sufficiently transformative.
2. Nature of the Copyrighted Work
- Factual vs. Fictional: Works that are more factual in nature (like textbooks) are more likely to qualify for fair use compared to highly creative works like novels or poetry.
- Published vs. Unpublished: If the work has already been published, fair use is more likely to apply. Using unpublished works is generally less protected under fair use.
3. Amount and Substantiality of the Portion Used
- Quantity: Using smaller portions of the work, such as brief excerpts, is more likely to be fair use. However, in some cases, even small portions may not qualify if they are the “heart” of the work.
- Quality: If the part used is considered the most important or recognizable portion of the work, this can weigh against a finding of fair use, even if the amount used is small.
4. Effect of the Use on the Market
- Market Harm: If the modified use reduces the market for the original work or serves as a substitute for it, this can count against fair use. For example, if the modification could compete with the original book or impact sales, it’s less likely to qualify.
- Derivative Works: If the modification undermines the potential market for licensed derivative works (like adaptations or sequels), this can also weigh against fair use.
These factors are balanced against one another, and no single factor determines the outcome. The more transformative and non-commercial the use, and the less it impacts the market for the original work, the more likely it is to qualify as fair use.
Digital Copyright – by Jessica Litman
The doctrine of fair use is described at 17 U.S.C. Section 107.
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Sec. 107. Limitations on exclusive rights: Fair use 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. (United State Code, Title 17 – Copyrights) Also see: Digital Millennium Copyright Act – DMCA Electronic Frontier Foundation – Intellectual Property New York Law School Law Review THE GOOGLE BOOK SETTLEMENT AND THE FAIR USE On October 28, 2008, Google announced that it had reached a settlement of the class-actions brought by the Authors Guild and various publishers. The agreement circumvents the critical fair use issues at the heart of the legal dispute, but it raises in turn some fundamental questions about the administration of copyright law. Specifically, the settlement charts new territory in the resolution of copyright disputes through class-action litigation. The settlement does much more than simply allowing Google to continue within plausible fair use parameters, i.e. digitization accompanied by search and very limited display. Instead, it transforms the Google Book universe into a vehicle for the direct electronic distribution of entire manuscripts through consumer purchases and institutional subscriptions. Controversially, the scope of works capable of electronic distribution includes not only those whose owners opt in, but rather all those whose owners fail to opt out. see: The Google Book Settlement and the Fair Use Counterfactual, Matthew Sag, Loyola University Chicago School of Law
The “fair use” exemption to (U.S.) copyright law was created to allow things such as commentary, parody, news reporting, research and education about copyrighted works without the permission of the author. That’s vital so that copyright law doesn’t block your freedom to express your own works — only the ability to appropriate other people’s. Intent, and damage to the commercial value of the work are important considerations. Fair use should not harm the commercial value of the work — in the sense of people no longer needing to buy it (which is another reason why reproduction of the entire work is a problem.) The “fair use” concept varies from country to country, and has different names (such as “fair dealing” in Canada) and other limitations outside the USA. Facts and ideas can’t be copyrighted, but their expression and structure can. You can always write the facts in your own wordsthough See the Digital Millennium Copyright Act DMCA alert for recent changes in the law. Source: Copyright Myths
How does the court know if a use is fair? Whether a use is fair will depend on the specific facts of the use. Note that attribution has little to do with fair use; unlike plagiarism, copyright infringement (or non-infringement) doesn’t depend on whether you give credit to the source from which you copied. Fair use is decided by courts on a case-by-case basis after balancing the four factors listed in section 107 of the Copyright Act. Those factors are: The purpose and character of the use of copyrighted work Transformative quality – Is the new work the same as the copyrighted work, or have you transformed the original work, using it in a new and different way? Commercial or noncommercial – Will you make money from the new work, or is it intended for nonprofit, educational, or personal purposes? Commercial uses can still be fair uses, but courts are more likely to find fair use where the use is for noncommercial purposes. The nature of the copyrighted work A particular use is more likely to be considered fair when the copied work is factual rather than creative. The amount and substantiality of the portion used in relation to the copyrighted work as a whole How much of the copyrighted work did you use in the new work? Copying nearly all of the original work, or copying its “heart,” may weigh against fair use. But “how much is too much” depends on the purpose of the second use. Parodies, for example, may need to make extensive use of an original work to get the point across.2 The effect of the use upon the potential market for or value of the copyrighted work This factor applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, that will weigh against fair use. Uses of copyrighted material that serve a different audience or purpose are more likely to be considered fair. Source: Teaching Copyright.org The Berne three-step test is a clause that is included in several international treaties on intellectual property. It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws. It was first applied to the exclusive right of reproduction by Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works in 1967. Since then, it has been transplanted and extended into the TRIPs Agreement, the WIPO Copyright Treaty, the EU Copyright Directive and the WIPO Performances and Phonograms Treaty. The test is included in Article 13 of TRIPs. It reads, Members shall confine limitations and exceptions to exclusive rights to: 1. certain special cases which… 2. …do not conflict with a normal exploitation of the work and 3. …do not unreasonably prejudice the legitimate interests of the rights holder.
Copyright and Fair Use in the Classroom or other instructional forums, on the Internet, and the World Wide Web Source: University of Maryland – Library Services What is Fair Use? Fair use is the most significant limitation on the copyright holder’s exclusive rights. Deciding whether the use of a work is fair IS NOT a science. There are no set guidelines that are universally accepted. Instead, the individual who wants to use a copyrighted work must weigh four factors: The purpose and character of the use: Is the new work merely a copy of the original? If it is simply a copy, it is not as likely to be considered fair use. Does the new work offer something above and beyond the original? Does it transform the original work in some way? If the work is altered significantly, used for another purpose, appeals to a different audience, it more likely to be considered fair use. Is the use of the copyrighted work for nonprofit or educational purposes? The use of copyrighted works for nonprofit or educational purposes is more likely to be considered fair use. The nature of the copyrighted work: Is the copyrighted work a published or unpublished works? Unpublished works are less likely to be considered fair use. Is the copyrighted work out of print? If it is, it is more likely to be considered fair use. Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be considered fair use. The amount and substantiality of the portion used: The more you use, the less likely it will be considered fair use. Does the amount you use exceed a reasonable expectation? If it approaches 50 percent of the entire work, it is likely to be considered an unfair use of the copyrighted work. Is the particular portion used likely to adversely affect the author’s economic gain? If you use the “heart” or “essence” of a work, it is less likely your use will be considered fair. The effect of use on the potential market for the copyrighted work: The more the new work differs from the original, the less likely it will be considered an infringement. Does the work appeal to the same audience as the original? If the answer is yes, it will likely be considered an infringement. Does the new work contain anything original? If it does, it is more likely the use of the copyrighted material will be seen as fair use. What are the Rules for Fair Use for Instructors? The copies should include a notice of copyright acknowledging the author of the work. NOTE: It is recommended that teachers, faculty, or instructors consider both the special guidelines for instructor and take into account the four factors that are used to evaluate fair use when they are deciding what and how much of a copyrighted work to use. Copyright and Electronic Publishing The same copyright protections exist for the author of a work regardless of whether the work is in a database, CD-ROM, bulletin board, or on the Internet. If you make a copy from an electronic source, such as the Internet or WWW, for your personal use, it is likely to be seen as fair use. However, if you make a copy and put it on your personal WWW site, it less likely to be considered fair use. The Internet IS NOT the public domain. There are both uncopyrighted and copyrighted materials available. Assume a work is copyrighted. Tips for the Internet Always credit the source of your information Find out if the author of a work (e.g., video, audio, graphic, icon) provides information on how to use his or her work. If explicit guidelines exist, follow them. Whenever feasible, ask the owner of the copyright for permission. Keep a copy of your request for permission and the permission received.
The Supreme Court of the United States described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc..[15] This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was “fair” and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a “prima facie” case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant’s work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense. Because of the defendant’s burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation. Because paying a royalty fee may be much less expensive than having a potential copyright suit threaten the publication of a completed work in which a publisher has invested significant resources, many authors may seek a license even for uses that copyright law ostensibly permits without liability. The frequent argument over whether fair use is a “right” or a “defense”[18] is generated by confusion over the use of the term “affirmative defense.” “Affirmative defense” is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between “rights” and “defenses,” and so it does not characterize the substance of the defendant’s actions as “not a right but a defense.” In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in the 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation (“EFF”), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical programs at law schools, and others. The “Chilling Effects” archive was established in 2002 as a coalition of several law school clinics and the EFF to document the use of cease and desist letters. Most recently, in 2006, Stanford University began an initiative called “The Fair Use Project” (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations. In 2009, fair use appeared as a defense in lawsuits against filesharing. Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum.[19] Kiwi Camara, defending alleged filesharer Jammie Thomas, announced a similar defense.[20] On September 2, 2009 Israeli District court ruled out a detailed decision[21] not allowing disclosure of “John Doe”‘s details for the request of the English Premier League Associan based on several reasons, but the most interesting were that “fair use” under the new Israeli law of 2007 (which is based on the US 4 factors test) is a right and not merely a defense. The court specifically states that the public may have base for a legal cause of action if its fair use right is infringed by the copyright holder. Other important decision in said judgment is the fact that the court finds streaming Internet filesharing site of live soccer games not infringing copyright as this use is fair use (mainly due to the importance of certain sport events and the public’s right). The court analyzes the 4 factors and decides that due to such importance of sporting games (and other less important factors), such use is fair.
Also see: Digital Millennium Copyright Act – DMCA
Electronic Frontier Foundation – Intellectual Property
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