[Home]FairUse

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One problem with copyright without limitation is that it restricts reasonable criticism about a work by preventing direct use of the source text. That is, it is much easier to talk about something when you can quote it. Left to itself, copyright law defaults to restrict any copying of material from the source text. Thus, the FairUse exemption is constructed to allow reasonable and limited quotation. Quotations are restricted to be minimal; only enough to serve the functional purpose of the criticism or annotation. They must be credited.

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).

Berne Convention

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.

To quote CopyrightLaw directly from the BerneConvention:

Article 10

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

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.

See WikiPedia:fair_use. Compare the RightToDerive.


FairUse in Canada

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.

"User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation." (Vaver, 2000, p. 171)

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:

  1. the purpose of the dealing;
  2. the character of the dealing;
  3. the amount of the dealing;
  4. alternatives to the dealing;
  5. the nature of the work; and
  6. the effect of the dealing on the work.

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)


FairUse in the United States

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:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  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; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

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.


Practicalities of ruling on FairUse

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):

"It is impossible to define what is 'fair dealing'. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide." -- Hubbard v. Vosper [1972] 1 All E.R. 1023 (C.A.), p. 1027. (ed: yes, that is L. Ron Hubbard; cf. [1])

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:

I would say to an 18-year-old artist, you'e totally free to do whatever you want. But-and then I would give him a long list of all the things that he couldn't include in his movie because they would not be cleared, legally cleared. That he would have to pay for them. [So freedom? Here's the freedom]: You're totally free to make a movie in an empty room, with your two friends. (Lessig, 2001, p. 5)

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.


net.FairUse

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.

Extended fair use

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:

  1. You are encouraged to re-publish small portions of this site under "fair use" laws.
  2. The result of such re-publishing is deemed to be PrimarilyPublicDomain.

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.

That would be allowed by [Sampling+], but not by [Sampling].

FairUse in pastiche

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. [2]). 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.


Other FairUse contexts


References

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.


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