artdogspot.com » Fair Use: What is “Fair”?

June 26th, 2009 // by Jeannine O'Brian

Copyright practices have become a front-burner issue as more creative works are posted on the Web. While the online environment provides an efficient and expedient way to market all kinds of work, once it is posted there is little protection against intellectual property theft. The following the second in a series of articles describing some current thoughts aimed at finding solutions to current copyright practices that can no longer effectively meet the needs of the accelerated evolution of the contents on the world wide web.

The practice of using old culture to create new works is ancient, but the relatively recent development of the Web as a venue for posting creative works has led to an explosion in remix culture.

Thanks to the Web, you can effortlessly find and take, borrow, or steal (as the case may be) existing material for inspiration in your work. Others can also do the same to any original work you may have posted online.

While copyright law provides, at least theoretically, robust protection for creators of all genres, copyrighted work may be legally used in some situations. The tricky part is figuring out what uses are acceptable.

The concept of fair use has been recognized by U.S. courts for about 150 years and was incorporated in the Copyright Act of 1976. The law provides that copyrighted material may be used, without charge or penalty, for the purposes of comment, criticism, news reporting, teaching, scholarship and research. The factors considered in determining whether the use of copyrighted work is fair include

1. the purpose character of the use

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

4. the effect of the use upon the potential market value of the copyrighted work.

Peter Jaszi, law professor at American University, describes fair use as a balancing tool that allows creators to make new work based on old culture without taking any rights away from a copyright holder. His view of fair use is a far cry from that of James Boyle, (see ‘The Copyright Dilemma’) who argues that current copyright law needs to be completely reworked so that it doesn’t squash collaboration, innovation and creativity.

Regardless, the fair use doctrine leaves much up to court interpretation. In practice, judges have consistently considered the following questions when determining whether a use is fair:

1. Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?

2. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?

Fair use can be seen as a doctrine that keeps copyright law from infringing on the right to free speech provided by the first amendment.

American University’s Center for Social Media tackled the ambiguous issue of fair use for online video by putting together a ‘Code of Best Practices.’ People in a wide variety of industries encounter fair use issues every day without even thinking about them. A code of best practices defines fair use for a particular industry, taking care of some of the question marks created by the fair use doctrine of the Copyright Act of 1976. Visithttp://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/ to read or watch a seven-minute video synopsis of the code.

Sometimes you can use other people’s work without even worrying about fair use. Check out this document created by AU’s Center for social media about freely using online video: http://www.centerforsocialmedia.org/files/pdf/free_use.pdf. You also don’t have to worry about using works in the public domain. The Cornell Law School website provides a chart that can help you decide if a copyright term on a particular work has expired: http://www.copyright.cornell.edu/public_domain/.

Also, keep your eye out for Creative Commons licenses that more and more creators are attaching to their work. These specify how you may or may not use someone a particular work. You may want to consider one of these licenses for your own work post on the Web if you’re concerned about how people will use it.

Sources and more information:

http://www.centerforsocialmedia.org/resources/publications/fair_use_in_online_video/

http://www.centerforsocialmedia.org/files/pdf/free_use.pdf

http://www.copyright.gov/title17/92chap1.html#107

http://www.copyright.cornell.edu/public_domain/

http://malor.wordpress.com/2008/03/04/what-bloggers-should-know-about-copyright-and-fair-use/

http://creativecommons.org/