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Copyright Corner

Did you know?
By Eric S. Slater, Esq., Manager, Copyright, ACS Pubs. Division

Fair use. Just those two words by themselves can conjure up anxiety and a cold sweat among both users and owners of copyrighted content. In last month’s column, we looked at content that is published on the Internet and that led to a brief discussion on works in the public domain. Let me say emphatically that fair use is not the same thing as the public domain. I bring this up as I’ve seen in my experience a tendency of people to erroneously lump them together. Fair use concerns material that is protected under copyright, while works in the public domain are not protected by copyright.

As I stated in a previous article I wrote on the subject, fair use is the privilege to use copyrighted material in a reasonable manner without having to secure the copyright owner’s consent (Chemical Innovation, 2001, 31 (3), 46-47). Fair use is a limitation on the exclusive rights of copyright (pursuant to Section 106 of the US Copyright Act). Realistically speaking, though, fair use is technically an infringement; however, one that legally permits certain uses of content as set forth under Section 107 of the United States Copyright Act.

Generally recognized uses include the following:

criticism, comment, news reporting, teaching (NOTE: not all teaching uses constitute fair use – we’ll leave this topic for another time), scholarship, research.

Four factors to consider in determining if use is fair use:

	purpose and character of use
	nature of work
	amount and substantiality of portion used
	effect of use on potential market for value of copyrighted work

The above four factors are what the federal courts use to base the fair use analysis, and should be used by anyone contemplating use of copyrighted material in determining whether their purported use is fair. A large factor to consider is whether the so-called fair use will potentially have a negative financial impact on the copyright owner. Courts tend to weigh this quite heavily into their analysis, and a negative financial impact on the copyright owner does tend to cut against fair use.

Keep in mind that there are no specific amounts of works that necessarily qualify as fair use. The copyright law does not specify any sort of magic number, whether that number is a certain or exact number of words, or a certain percentage of the particular work that will always be tantamount to fair use. The best legal answer I can provide here is that “it depends.” It depends on the specific content being used when compared to the work in its entirety. In speaking for the ACS Copyright Office, the interpretation of what constitutes fair use varies widely. For example, a copyright owner’s interpretation may be very narrow; a person looking to utilize fair use will interpret it broadly.

It is also important to note that fair use is a defense to copyright infringement. In other words, if you are sued by a copyright owner after re-purposing his work and make a fair use argument, you are in actuality using that as a defense. You would have to be able to convince the court that your use is fair. A good rule of thumb is that one should never rely on fair use as a defense. You can never go wrong by formally obtaining the permission of the copyright owner.

For more information:

	http://www.copyright.gov/title17/chapter01.pdf (scroll down to Section 107)
	http://www.copyright.gov/fls/fl102.pdf
	http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/
	http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm

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