Fair Use
According to Richard Stim, author of Stanford Copyright & Fair Use Center’s Copyright and Fair Use Overview, fair use is “a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism,” including use within a parody (Chapter 9: Fair Use) Straight-forward examples abound, like my use of the quotation above. If I needed to ask an author’s permission every time I wanted to use a brief quotation in a paper, I would get nowhere fast. But fair use allows me to gather and present other writers’ work in a such a way that 1) I have transformed the original work by giving it new purpose and making it substantially my own, 2) I have chosen to present facts (which cannot be copyrighted), 3) I have not appropriated a large or important portion of the work for my own benefit, 4) I am not putting the author’s commercial opportunities at risk by using the work, and sometimes even 5) I am not using the content in a way that might morally offend a judge. The realms of commentary, criticism, and parody are fairly large as well: works of reference–including biographies, thumbnails in print and online, and documentaries–political campaigns, and search engine result pages are just some of the mediums granted wins in Fair Use cases. If the work seeks to provide information to the public, supports a political debate, or uses a small enough percentage of the original work, Fair Use may protect the final product. While it may seem like Fair Use is a great way to circumvent costs for republication permissions, there are a few key limitations and recent legal precedents that prevent Free Use from becoming “Free for All.”
First, simply attributing the source of a work doesn’t place it under Fair Use protection. If I had decided to republish an entire Lawrence Lessig book on my site and had clearly attributed every word to him, I would very easily lose a lawsuit. Even with attribution, my site would be presenting copyrighted material, would not have adequately reworked Lessig’s text (quite the contrary: in this example it would be straight copying), would have certainly used an unfair portion of Lessig’s work, and would definitely provide an avenue for readers to avoid buying Lessig’s book (thereby damaging his possible market for the book). I would be quite obviously flaunting all of the standards of Fair Use. The same thing goes for publishers: anthologies can’t be produced without permissions for every individual piece included; artwork can’t be used without permissions either. (Measuring Fair Use: the Four Factors)
Disclaimers that disassociate your content from the source are also inadequate forms of protection. According to Stim, “a prominently placed disclaimer may have a positive effect on the way the court perceives your use. However, … if the fair use factors weigh against you, the disclaimer won’t make any difference” (Measuring Fair Use: the Four Factors).
Fair Use cases abound, though some are more important than others. The most important precedents have been those clarifying the limitations and uses of the terms of Fair Use. Using a small percentage of a work may be Fair Use, but not if you’ve previously paid for permissions for similar excerpts, if you’re preempting the publication of the work and may detract from its readership, or if the excerpt too closely reveals the essence (“the heart”) of the original. Thumbnails, too are generally covered by Fair Use, but only when they’re used for informational purposes–with no attempt to profit from them–and when it’s obvious that the thumbnails aren’t taking away from the marketability of the actual image. (Summaries of Fair Use Cases)
Beyond the nitty-gritty of who is using what fairly, Fair Use is an essential element of the development of copyright law. For example, when Google successfully defended itself against Perfect10.com in the 2006 infringement case that clarified Google’s right to use thumbnails in its search results, the courts set a precedent for which Congress had not yet been able to compensate with copyright legislation. Electronic publishing, in particular, has benefited greatly from having a reliable voice of authority settling disputes when technology pushes forward faster than Congress can act. In New York times Co., Inc. et al. v. Tasini et al., the Supreme Court decided that the republication of articles on online databases like LexisNexis was not protected by Fair Use and required reimbursement to the authors, setting a high precedent for viewing online publication as equal to that of print publication. The Google Book Search and Library Project rankled publishers and authors by allowing users to see “Fair-Use-sized snippets” of books through its full-text search and by publishing library collections online. A recent agreement between Google, the Association of American Publishers, and the Authors’ Guild settled issues of permissions and payment for fully republished work, so Google can continue providing Fair Use search results as well as a universal online platform for hosting out-of-print, public domain, and permissionable in-copyright books. Without these court cases, the world of electronic copyright would be stuck in the boundaries set forth in the latest copyright legislation which cannot keep pace with development.
The interaction of Digital Rights Management systems, Fair Use standards, and the Digital Millennium Copyright Act is a certain hotbed for the next big Fair Use case. In the article “Fair Use and Digital Rights Management:Preliminary Thoughts on the (Irreconcilable?) Tension between Them,” intellectual property attorney Fred von Lohmann highlights the tension between the DMCA and Fair Use, namely that Fair Use was established to allow society to push the limitations of copyright while the DMCA limits any activity that seems to circumnavigate DRM, even if Fair Use is obviously in play. Take the television for example. In 1984, the Supreme Court decided that taping a broadcast television show on a VHS was protected by Fair Use because the tape allowed the viewer to watch the show at their own convenience without threatening the commercial interests of the copyright owners or broadcasters. If DRM had been developed to protect users from recording broadcast TV via VCRs, users would have been protected against lawsuit, even if they had devised measures to break or escape the consequences of DRM, until 1999 when the DMCA was passed. Now, any effort to record a show protected by DRM using any means and any medium is strictly illegal, even though the Supreme Court declared it Fair use twenty-five years ago. Von Lohmann points out that our current choices are slim: “should the public be required to give up some measure of fair use in order to solve the ‘piracy’ problem [addressed by DRM]?”
Read more about Fair Use on the Wiki.
