ArtsAutosBooksBusinessEducationEntertainmentFamilyFashionFoodGamesGenderHealthHolidaysHomeHubPagesPersonal FinancePetsPoliticsReligionSportsTechnologyTravel

The doctrine of Fair Use: An overview

Updated on July 8, 2011
Fair use makes life easier for everyone.
Fair use makes life easier for everyone.

The funny thing about rights is that they may affect other rights. For instance, the right to freedom of expression is no excuse for libel or slander.

With copyright law, authors, publishers, producers and inventors are just some of the personnel who benefit from having their rights enshrined by it.

However, there are limitations that pertain to copyright law as well. The most important limitation of copyrighting is the Fair-Use doctrine.

The Fair-Use doctrine was initially more of a convention than it is law, since it is based on precedents and previous decisions made in Civil Court. It permits uses of copyrighted work based on principles derived from judicial precedents and decisions. The Fair-Use doctrine facilitates use of copyrighted work, but it also protects copyrighted material by clearly distinguishing what is fair from what isn’t.

The set of principles associated with Fair Use applies to both intangible and tangible work – anything from printed work to software. Fair Use was eventually written into copyright law in the United States, under Section 107. This outlines what fair use is and what elements determine it. Four principles, outlined by the U.S. Copyright Office, are most important in establishing whether use of copyrighted material is fair or unfair.

i) The characteristics of the use – its purpose and nature

ii) The nature of the copyrighted material

iii) How much of the work is used or how substantial the use of the work is

iv) The market consequences of the use of the work

The purpose and nature of use pertains to the use of the work for commercial reasons as opposed to non-profit educational use or private use. The last point refers to the impact on the market. In other words, how does it affect the actual or potential earning capability of the material used?

In judging cases of possible copyright infringement, all four principles come into play. However, there are exceptions to the rule with all the principles. For example, just because use of copyrighted work is commercial does not automatically render the use unfair.

For example, in a 1992 case, the decision was that reverse-engineering was permissible since it was used for research and developments and not to develop copies of a game. Instead it was used to create new material, which the law permits.

In her book, The Gift of Fire, Sara Baase suggested that factual work does not have as much protection as creative material does. She also noted that the effect of use on the actual and potential earnings or marketability of works may carry more weight in judgements.

In the widely-covered Napster case, Napster actually had the other bases covered. However, the judgement went against them because the widespread use of Napster affected the selling capacity of the music industry. Clearly, Napster’s argument that it was helping the music industry did not impress the judges.

Copyright law welcomes the use of copyrighted works for educational purposes, news reporting, and for critiquing. It also welcomes the private use of works – for instance, downloading a YouTube video to listen to it privately.

Even with applications of the Fair Use principles, there are some cases that are very difficult to predict. The Fair Use doctrine merely offers guidelines. In cases where the fairness of the use is doubtful, it is best to seek permission from the relevant copyright owners. If that is not possible, soliciting legal advice, in cases where liability would be an issue, is even better.

Comments

Submit a Comment

  • SpiffyD profile imageAUTHOR

    SpiffyD 

    6 years ago from The Caribbean

    Thanks for your comment BT. As you observed, "fair use" was not intended to be that magical pass to copyright infringement.

  • BusinessTime profile image

    Sarah Kolb-Williams 

    6 years ago from Twin Cities

    Thanks for this great hub -- there are a lot of people out there that think "claiming fair use" is some sort of magical free pass that allows you to do whatever you want -- definitely not the case!

working

This website uses cookies

As a user in the EEA, your approval is needed on a few things. To provide a better website experience, hubpages.com uses cookies (and other similar technologies) and may collect, process, and share personal data. Please choose which areas of our service you consent to our doing so.

For more information on managing or withdrawing consents and how we handle data, visit our Privacy Policy at: https://hubpages.com/privacy-policy#gdpr

Show Details
Necessary
HubPages Device IDThis is used to identify particular browsers or devices when the access the service, and is used for security reasons.
LoginThis is necessary to sign in to the HubPages Service.
Google RecaptchaThis is used to prevent bots and spam. (Privacy Policy)
AkismetThis is used to detect comment spam. (Privacy Policy)
HubPages Google AnalyticsThis is used to provide data on traffic to our website, all personally identifyable data is anonymized. (Privacy Policy)
HubPages Traffic PixelThis is used to collect data on traffic to articles and other pages on our site. Unless you are signed in to a HubPages account, all personally identifiable information is anonymized.
Amazon Web ServicesThis is a cloud services platform that we used to host our service. (Privacy Policy)
CloudflareThis is a cloud CDN service that we use to efficiently deliver files required for our service to operate such as javascript, cascading style sheets, images, and videos. (Privacy Policy)
Google Hosted LibrariesJavascript software libraries such as jQuery are loaded at endpoints on the googleapis.com or gstatic.com domains, for performance and efficiency reasons. (Privacy Policy)
Features
Google Custom SearchThis is feature allows you to search the site. (Privacy Policy)
Google MapsSome articles have Google Maps embedded in them. (Privacy Policy)
Google ChartsThis is used to display charts and graphs on articles and the author center. (Privacy Policy)
Google AdSense Host APIThis service allows you to sign up for or associate a Google AdSense account with HubPages, so that you can earn money from ads on your articles. No data is shared unless you engage with this feature. (Privacy Policy)
Google YouTubeSome articles have YouTube videos embedded in them. (Privacy Policy)
VimeoSome articles have Vimeo videos embedded in them. (Privacy Policy)
PaypalThis is used for a registered author who enrolls in the HubPages Earnings program and requests to be paid via PayPal. No data is shared with Paypal unless you engage with this feature. (Privacy Policy)
Facebook LoginYou can use this to streamline signing up for, or signing in to your Hubpages account. No data is shared with Facebook unless you engage with this feature. (Privacy Policy)
MavenThis supports the Maven widget and search functionality. (Privacy Policy)
Marketing
Google AdSenseThis is an ad network. (Privacy Policy)
Google DoubleClickGoogle provides ad serving technology and runs an ad network. (Privacy Policy)
Index ExchangeThis is an ad network. (Privacy Policy)
SovrnThis is an ad network. (Privacy Policy)
Facebook AdsThis is an ad network. (Privacy Policy)
Amazon Unified Ad MarketplaceThis is an ad network. (Privacy Policy)
AppNexusThis is an ad network. (Privacy Policy)
OpenxThis is an ad network. (Privacy Policy)
Rubicon ProjectThis is an ad network. (Privacy Policy)
TripleLiftThis is an ad network. (Privacy Policy)
Say MediaWe partner with Say Media to deliver ad campaigns on our sites. (Privacy Policy)
Remarketing PixelsWe may use remarketing pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to advertise the HubPages Service to people that have visited our sites.
Conversion Tracking PixelsWe may use conversion tracking pixels from advertising networks such as Google AdWords, Bing Ads, and Facebook in order to identify when an advertisement has successfully resulted in the desired action, such as signing up for the HubPages Service or publishing an article on the HubPages Service.
Statistics
Author Google AnalyticsThis is used to provide traffic data and reports to the authors of articles on the HubPages Service. (Privacy Policy)
ComscoreComScore is a media measurement and analytics company providing marketing data and analytics to enterprises, media and advertising agencies, and publishers. Non-consent will result in ComScore only processing obfuscated personal data. (Privacy Policy)
Amazon Tracking PixelSome articles display amazon products as part of the Amazon Affiliate program, this pixel provides traffic statistics for those products (Privacy Policy)