Fair use is the doctrine that exempts or allows a limited use of owners’ copyrighted work without his or her permission. This doctrine applies when the existing work is used for purposes of parody, criticism, teaching, research, or scholarship. To ascertain the grounds for fair use, Section 107 under the copyright law of the U.S. (Hathcock 1) outlines four factors that are essential for this claim. The first factor is the purpose of the use, followed by the nature of the work under copyright, then the amount and substantiality, and finally the effect of the existing material on the potential market. These factors are applied mutually rather than independently for a claim to suffice fair use.
Fair use has changed and expanded the body of knowledge in different fields of study such as the scholarly, entertainment, and art world. As a result, the exclusive rights that confined the existing work only to copyright owners over the years has been expanded to include ordinary individuals for the betterment of the society. The proliferation of technological advancements in the recent years has caught wind of the copyright law with digitized technologies such as the Digital Rights Management that seek to immerse fair use into an encrypted world. Even though there exist varied antithetical arguments against DRM and its relevance to fair use, the importance of both fair use and DRM cannot be wiped out entirely.
The Purpose Using the Material
As a rule in this factor of fair use, educational, nonprofit, criticism, commentary, news reporting, parody, research, or personal use of content qualifies as fair use. Work used for transformative purposes also favors a fair use claim and this applies to the creation of a new work rather than adapting an existing one (Hathcock 1). Additionally, using the original work for a completely new purpose with a different intention from the original work qualifies as fair use. This may include a parody composition of existing work or showing an existing work during class for purposes of commenting or criticizing. For instance, a parody claim of fair use of existing work does not hold ground merely by modeling characters that are similar to an existing work.
A practical example is in J. D. Salinger’s case, where the author sued a different author named Colting for writing a book that had allegedly modeled the same character found in one of Salinger’s books named Catcher in the Rye. Colting employed the fair use defense and claimed his sequel was a parody. However, the district court rejected his claim and held that even though Cotling aged the character and depicted him to live in the recent time, the character still had the same personality like from the original work (Stim 1). On the other hand, changing an existing work to a different medium, such a film or television adaptation of books goes against fair use.
Nature of Copyrighted Work
The works that favor a fair use claim under this factor include factual works that have been published or non-fiction work. On the other hand, unpublished work weighs against the fair use principle as the creator reserves the right to give permission to an individual who wants to use his or her work. This means that publishing such work jeopardizes his or her creative undertaking and effort. Additionally, creative works, such as art, poetry, fiction novels, film have more copyright protection than non-fiction and factual works, such as educational texts, informational display, and documentary films. For instance, showing a new film or displaying a Picasso’s painting without the production house or collection house’s permission respectively goes against the principle of fair use. On the other hand, instances such as a documentary film on the wildebeest migration favor fair use. Even so, this aspect does not neglect the fact that creative or unpublished work cannot be without the creator’s permission.
Amount and Substantiality
This factor relates to the portion of the work being used, as the law does not set absolute limits on the scope of fair use. As much as small portions of the original work might fall within the premise of fair use, this does not mean predominant small portions will always favor it (Strba 123). Further, caution should be observed in employing this factor, as it not only considers the quantity of the work, but also the assessment of the heart of the work. For instance, a fair use may suffice when an individual uses a portion of a short motion picture clip, but the same doctrine fails to protect the individual when he or she uses the most creative or unique aspects of the same film.
Similarly, quoting a small portion of a news or magazine article might be acceptable, but not if the quote is the journalistic masterpiece or scoop. Nonetheless, different contexts might lead to the acceptance to use or copy an entire work and considered fair use, such as parody or critical comment. This aspect also may lead an individual to use more of an original work depending on the need to achieve his or her purpose. Artwork and photographs usually generate controversies as only a full image or work can communicate the message that ultimately fails on the fair use principle. However, they can be used for fair use when used for critique purposes in scholarly presentations. Additionally, a court has ruled that an image in a low-resolution form the existing work might be used to serve research or education purposes (Columbia University Libraries 1).
Effect of Work on the Potential Market
The final factor highlights whether using existing work has economic disadvantages to the copyright owner. Fundamentally, evaluation of this factor considers not only the negative economic impact of the work, but also investigating the market to ascertain whether it is available for licensing or purchase. The availability of existing work such as a book may go against fair use if an individual is using an extensive part that is available in the market for sale at a typical price. Not hiding to this factor can likely catalyze a lawsuit. For instance, in the Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) case, the claimant, who was a photographer, sued the defendant for copying all the elements his copyrighted photo and using it as an essence for wood sculptures without his permission. When the defendant sold the sculptures, he earned large sums of money. The artist employed the fair use defense by claiming the photographer would not have considered transforming the photographs into sculptures. The court ruled against the artist because whether the photographer had thought about transforming the photograph into sculptures or not, there existed a potential market for the photograph sculptures (Stim 1).
Evidence in Support of Fair Use
Copyright law has a far-reaching impact in fostering the progress of science, dissemination of ideas, and the creation of culture. However, the most crucial, yet reprimanding aspect of copyright is protection and retention of the rights of existing work to the owner. For this purpose, the importance of fair use through access to quotes, copies, and re-using existing literal, artistic, scientific, and cultural material in expanding the scope of knowledge in research, culture, and intellectual exchange is unmatched(Adler et al. 5). Fair use cuts across many professions such as medicine, science, history, and art. A common example is a wide extent in which historians quote primary and secondary sources and even writings of other historians.
Visual artists and filmmakers also use this doctrine in critiquing and reinterpreting copyrighted material. Fair use also finds premise in commercial media such as broadcast news where references to classic TV programs, popular songs, archival images, and popular films are often unlicensed (Aufderheide, Patricia, and Peter 82). Academic and trade publishers frequently rely on this principle to incorporate third-party material or content in the books or journals they produce. To appreciate the importance of fair use principle, imagine a situation where a student would not be able to quote the original book without the author’s permission while reviewing it. Even worse, the owners of such books could have withheld the review unless the student parts with a large payment. In effect, many activities of social value would have been impaired if using every unauthorized copyrighted work would suffice infringement (Tushnet 544).
Another important factor of fair use is its flexibility in allowing the copyright law to adjust to the advantage of the society. This aspect is made possible by the nature of copyright law not to spell out how fair use applies specifically. For this reason, lawyers and judges have overlooked prescriptive formulas, such as detailed facts and circumstance to determine copyright cases and decided the cases on the reasonable and equitable grounds. This factor has greater cultural and social benefits to society that surpass the subjective cost implication to the copyright owner.
Antithetical Arguments on Fair Use
DRM is the most profound technological development that epitomizes copyright law by preventing users such as commercial distributors from the fears of piracy. DRM has restrictive access technology that controls the extent to which copyrighted material is used, modified, and distributed (Gillespie 57). DRM has been dubbed the most promising and effective solution for managing copyright issues over the digital networks. However, DRM’s eligibility in protecting the copyrighted material has dire consequences that span the economic, cultural, and democratic dimensions. This problem concerns the nature of the decisions that ascertains which appropriate rules are best suitable to be built into the technology. The biggest challenge arises in coding the rules that govern the fair use practice of a software application or technological device in the law as it requires very specific rules.
Further, the system would be less capable of judging contextual and ambiguous situations compared to a human. Even worse, computer scientists are influenced by the ambiguity because they focus on designing a precise mathematical tool. This implies they have a vague legal definition of fair use that does not capture or provide the basis for fair uses. The fact that there exists no standard algorithm for ascertaining if a specific use is fair among computer scientist complicates the dream of developing a perfect DRM. Computer specialists’ view such ambiguities as a bug while among lawyers consider this aspect as a feature since it gives the Judge direction in case. This kind of uncertainty about the fair use application is enough reason to rule out the practicality of a DRM system that fosters fair use (Gillespie 60).
This example highlights the differences in mindsets for both programmers and lawyers. Another feature of technological applications that pits them against the law is the fact that they are designed to perform all activities. Such technologies do not do so with the aim of anticipating the possible action within each context, rather by articulating all the categories of possible actions in the system and provide a default instruction for any action that is not within the required parameter. Fair use is antithetical to technologically enforced rules, a characteristic that leads some people to predict a bleak future for in its relevance and applicability. A case in point is the Napster filter that was unable to identify what a user’s intention of downloading a song was, therefore, prevented the downloading process.
Another challenging factor is that Napster could not tell whether a user was a professor, parodist, or pirate, therefore, restricted all from accessing material. On the other hand, proponents of the digital technology claim that this platform might facilitate affordable and simple licensing of users who use it frequently. Moreover, this platform would link the users directly with the owners of existing work to negotiate and help the owners to form centralized licensing organizations. Through DRM, the licenses would easily be achieved. To avert the numerous claims against DRM, there is a need for technological modifications to address and minimize the social cost that may pose a potential threat to erode fair use.
The federal government should also ensure that DRM encompasses fair use because when the task is purely left for private parties, this will set up the public for a losing battle that by not accommodating their interests (Gillespie 62). In translating the law into the technological dimension of code software, caution should be considered to ensure the subtle character rules do not change. With the potential abuse of control or imperfection that might bedevil any technological advancement, room for improvement and adjustment should be allowed to ensure the system is applied to its best potential. More importantly, the advancement of technological systems being incorporated in the doctrines such as the fair use is evidence that new risks and opportunities are opening with the aim of expanding the scope of knowledge in copyright law.
It should be apparent that fair use has changed the narrative of copyright law by expanding the intellectual space and exchange in different fields of study. Gone are the days when an existing work of the owner could not be used for research, or critiqued. Even though the copyright law is supreme and protects against using the owner’s work without permission, fair use has increasingly opened the opportunity to access these materials for ordinary people. As with any technological advancement, fair use has faced dire challenges in adaptation to the digital platform through DRM technologies. Part of the problem involves the ambiguity of this application to model its rules around the copyright law and policy. Even so, concerted efforts by the federal government to ensure this technology encompasses fair use and ensuring the public gain is upheld will go a long way to uphold this profound doctrine, now, and in the future.
Gillespie, Tarleton. Wired Shut: Copyright and the Shape of Digital Culture. Cambridge, MA: MIT Press, 2007. Print.
Stim, Rich. “Measuring Fair Use: The Four Factors.” Stanford University Libraries. Stanford University Libraries, 2015. Web. 3 Dec. 2015. <http://fairuse.stanford.edu/overview/fair-use/four-factors/>.
Hathcock, April. “Copyright: Applying Fair Use.” New York University Libraries. New York University Libraries, 2015. Web. 3 Dec. 2015. <http://guides.nyu.edu/fairuse>.
Adler, Prudence S, Patricia Aufderheide, Brandon Butler, and Peter Jaszi. Code of Best Practices in Fair Use for Academic and Research Libraries. Washington, DC: Association of Research Libraries, 2012. Print.
Tushnet, Rebecca. “Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It.” Intellectual Property Law Review. 114.1 (2004): 535-590. Print.
Aufderheide, Patricia, and Peter Jaszi. Reclaiming Fair Use: How to Put Balance Back in Copyright. Chicago, IL: The University of Chicago Press, 2011. Print.
Strba, Susan I. International Copyright Law and Access to Education in Developing Countries: Exploring Multilateral Legal and Quasi-Legal Solutions. Leiden, NL: M. Nijhoff Pub, 2012. Print.
Columbia University Libraries. Fair Use. Columbia University Libraries, 2015. Web. 3 Dec. 2015. <https://copyright.columbia.edu/basics/fair-use.html>.
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