FairUse also extends to parody and satire in many English-speaking countries. However, Continental Europe grants what are known as MoralRights? to the author which gives her the power to veto any derivation that may defame her. Abused, this may severely restrict free speech and criticism in our democracies. As Vaidhyanathan (2001) argues, due to the international copyright treaties, like the BerneConvention, MoralRights? are creeping into English-speaking countries' legislation, overturning a multi-century belief in copyright as a balance between the needs of the PublicSphere? and the needs of TheAuthor.
Vaidhyanathan (2001) further argues that the same tools that protects the integrity of the authors' reputations against unfair criticism has also helped eliminate the critical separation of ideas from expression that is fundamental to the notion of copyright. Copyright is only meant to protect the expression of an idea, not the idea itself. Vaidhyanathan chronicles the demise of this separation throughout the 20th century in ruling after ruling, until now it is very difficult to derive from someone else's work without getting permission first. At one point, it was even legal to make a translation without permission, as the second language version was considered a different expression of the idea.
In a sense, the idea expression separation worked against the GreyAlbum. If ideas were protected outright, it would have been clear that the GreyAlbum was a distinct idea unimpugning The White Album. However, since expression is protected, the GreyAlbum required sort special exemption--a fair use exemption--to allow it and other pieces like it to exist.
At a more practical level, copyright infringement cases depend on the resources of the plaintiffs. In many cases, authors find themselves letting go abuses of their work because it is not worth the cost of litigation (Cox, 2002). On the other hand, the music industry has deep pockets. The music publishing industry insists that lyrics cannot be quoted at all, not even in scholarly works, without permission. One is advised to always obtain permission to use song lyrics (Orlans, 1999).
The 1895 Berne Convention represented until very recently the world's treaty on copyright. While countries such as the United States and Canada joined relatively late, the Berne Convention continues to influence lawmaking today. As mentioned above, and as Vaidhyanathan (2001) argues, the introduction of moral rights from Europe has remarkably altered the American copyright jurisprudence.
The specific legal situation to your country may vary. Indeed, it may even vary with time or location within your country, or the mood of the judge. Fair use is the most difficult aspect of copyright law.
In Canadian law, FairUse is referred to as fair dealing under section 29 of the Copyright Act. The Supreme Court of Canada, CCH Canadian Ltd. vs. The Law Society of Upper Canada (2004) ruling greatly clarified what in fact constituted fair dealing. First, although fair dealing is a defense, it is an integral part of CopyrightLaw in the sense that it is the user's right to use works under the fair dealing provisions.
The Copyright Act grants exceptions for research, private study, criticism, review or news reporting. Here, research is not meant to be highly restrictive, as it might include commercial research. That being said, commercial use is considered less fair than non-commercial use.
What constitutes fair is non-trivial, but Canada now has an analytical framework. When judging whether a use is fair, one must take into account:
Part of this ruling seems to permit copying images or photographs (proviso the other factors to take into account). "It may be possible to deal fairly with a whole work. As Vaver (2000) points out, there might be no other way to criticize or review certain types of works such as photographs." (p. 12)
For much of the history of the United States, FairUse was a matter of the common law. Only in 1976 were FairUse exemptions in the United States made statutory in the Federal Coypright Act, [Section 107] - Limitations on exclusive rights: Fair use, which states that "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." Further, a four-part test is applied when considering whether a particular case is exempted under fair use:
FairUse is an affirmative defense, which means a defendent has to proactively claim protection under its exemption, rather than forcing the court to decide itself whether the exemptions apply. Thus, even if you would have succeeded in being granted relief under FairUse, if you don't ask for it, you won't get it.
In Vaidhyanathan (2001) outline of the history of fair use, he demonstrates that the Bench has always had a hard time ruling on Fair Use. It's not easy determining what is an idea and what is an expression, and in many respects, there is no distinction. To quote Lord Denning in Hubbard v. Vosper (1972, p. 1027):
As stated above (Lessig, 2001; Vaidhyanathan, 2001), FairUse protections have been dramatically eroded in the United States since the advent of the motion picture industry. Due to a wild rollercoaster of rulings, it is no longer FairUse to plagiarize even concepts that may not have been considered copyrightable before. The ideas are considered expressions. To quote film director, David Guggenheim:
Some such as Lessig (2001) have commented how this makes an unreasonable limit to FairUse, especially considering the prevalence of digital video cameras and the ease of online publishing. Others have responded that this only eases the dilution of their brands, and thus requires stronger protections. In any case, the point is that what is conceived as FairUse is constantly changing with society.
For the most part, FairUse considerations novel to the Internet falls into two categories. One is how the explosion of copyrighted material on the Internet is protected, as each LifeInText becomes protected under copyright law. As banal as these are, in the United States, even these minimally commercially valuable works likely are protected under the No Electronic Theft (NET) Act signed into law in 1997 (Heneghan, 2001). These are perhaps more properly protected by the RightToPublicity?, as described here as SubjectRight.
On the other hand, the DigitalNetwork not only allows, but affords (SocialAffordance?) sampling and mixing through the use of copy & paste. From digital music to the WebLog practice of fisking, the RightToSample is a necessary extension of FairUse that is too slow in coming. Some like the CreativeCommons have begun to work on explicit licenses to enable this.
One problem with fair use is that it is heavily usage dependant, so what is fair use for me may not be fair use for a third party. This causes problems with content under CopyLeft, which cannot make heavy use of fair use text without damaging the rights of sublicensees. One solution is to license the source text under a copyleft or PrimarilyPublicDomain or similar, but this is a blunt approach.
Therefore, grant ExtendedFairUse? permissions over your content. For example, use the "Sampling" license from CreativeCommons: http://creativecommons.org/license/sampling. Basically, do something like:
This places copylefted and closed content on a level playing field in terms of their ability to make "fair use" of your content. At least this serves as a useful GuidePost.
Would the WebLog practice of 'Fisking' be unprotected under the criticism exception because it copies extensive to entire portions of a work? A CollaborativeCriticism tool might enable extensive and comprehensive criticism of works, and the limitation on the extent of quotation might limit such a tool.
FairUse would be wholly inappropriate for "ShellyJackson?'s" PatchworkGirl?, as it doesn't seek to quote and criticize, but rather integrate and "vocabularize"--i.e. sampling bits of Mary Shelley's Frankenstein into tokens used in the expression of PatchworkGirl? (cf. ). The GreyAlbum is also an example of this, where it's not a quotation, but a linguistic derivation that requires the RightToSample. See the RightToDerive for a stronger right than FairUse.
Campbell v. Acuff-Rose Music, Inc. (1994). 510 U.S. 569, 574.
CCH Canadian Ltd. vs. The Law Society of Upper Canada. (2004). SCC 13.
Cox, R. J. (2002). Unfair use: advice to unwitting authors. Journal of Scholarly Publishing, 34(1), 31-42.
Heneghan, B. P. (2001). The NET Act, fair use, and willfulness - Is Congress making a scarecrow of the law? Journal of High Technology Law, 1. Available from http://www.law.suffolk.edu/stuservices/jhtl/V1N1/BHENEGHANV1N1N.pdf
Hubbard v. Vosper. (1972). 1 All E.R. 1023 (C.A.).
Lessig, L. (2001). The future of ideas: The fate of the commons in a connected world. New York: Vintage Books. [TheFutureOfIdeas?]
Metcalfe, A., Diaz, V., and Wagoner, R. (2003) Academe, technology, society, and the market: Four frames of reference for copyright and fair use. portal: Libraries and the Academy, 3(2), 191-206.
Orlans, H. (1999). Scholarly fair use: Chaotic and shrinking. Change, 31(6), 52-60.
Vaidhyanathan, S. (2001) Copyrights and copywrongs: The rise of intellectual property and how it threatens creativity. New York: New York University Press.
Vaver, D. (2000). Copyright law. Toronto: Irwin Law.