Fair Use
From DigitalRhetoricCollaborative
Fair use [2] is a doctrine included in the U.S. copyright laws that protects the reproduction of copyrighted works for certain circumstances. Under copyright law, any work of literature, art, or intellectual property is protected from outside replication. Fair use allows for the reproduction of these properties without express permission of the author as long as the intention behind the reproduction is beneficial for academic learning and not for personal profit or gain.
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Fair Use on the Internet
A Copyright Manifesto
The Digirhet writers of Michigan State University published A Copyright Manifesto as a set of guidelines for digital writers. These guidelines are established on three tenets of belief:
- Blame in terms of intellectual property law is based on outdated beliefs. With this in mind digital writers must become copyright activists, and striving for access to creative work to remain open, yet protected.
- All knowledge is cumulative, and current intellectual property laws hinder the natural expansion and growth of multimodal knowledge.
- Not only should credit be attributed, but digital writers/designers should be taking an active role in the intellectual property of their work during the creative process, not simply at completion.
The guidelines stated in A Copyright Manifesto is as follows:
- Digital Writers must take an active role in their creations: by understanding copyright, Creative Commons, etc.
- Sources must be attributed at all possible, and all repeated information must comply with the Fair Use Doctrine
- Digital writers are responsible for making sure other digital writers are aware of media laws and copyright infringement
- Writers must engage in digital legislation, whether it be through digital legislative communities or communicating with an elected official themselves.
- Digital Writers/Designers should create and be involved in other digital creative communities as to create a relationship of support.
- Digital Writers must exercise their own creativity constantly in order to minimize instances where they will be accused of violating copyright.
- In compliance with the above statement, digital writers should never partake in active and willful stealing of information or content.
Court Cases
Kelly v. Arriba Soft Corporation
Kelly v. Arriba Soft Corporation occurred in 2002, involving a commercial photographer and a search engine company. Kelly, the plaintiff, sued Arriba Soft (defendant) for copyright infringement for using thumbnail sizes images produced by Kelly on their new search engine program. Though Kelly sold images to Arriba Soft, he did not utilize permission for thumbnails to be used on Arriba search engine platforms. The United States District Court of California ruled that thumbnails did infringe Kelly’s copyright, but fair use permitted Arriba to use thumbnails in the image index. The court upheld the right by search engines to display thumbnail copies of images in their index. The analysis of the case was released in July 2003. Comparing the case to the four factors of Fair Use, the district court ruled that two weigh in favor of Arriba, one is neutral, and one weighs for Kelly (“Nature of the Copyrighted Work”).
Lenz v. Universal Music Corporation
Lenz v. Universal Music Corporation occurred in 2007, settling the argument as to whether or not copyright holders must consider fair use before removing content posted to the Internet. Stephanie Lentz (plaintiff), uploaded a video to YouTube of her children dancing to Prince’s song “Let’s Get Crazy.” Universal Music Corporation (defendant) sent a message to YouTube requesting that the video be taken off, claiming that it violated their copyright in compliance with the Digital Millenium Copyright Act (or DMCA). Lentz sued Universal Music for not considering fair use and misrepresenting information of the DMCA. During September 2007, both Prince and Universal released statements that Prince would be “reclaiming his art,” and that all user-generated content involving Prince would be removed from the Internet. Lentz argued that Universal was removing content in “bad faith” and not considering the fair use doctrine in their decision. The district court eventually ruled that copyright owners must consider fair use before issuing content removal in accordance with DMCA policies
Legislation about Fair Use
Fair use is referred to as a doctrine, not a law. Being a doctrine means that rulings on this issue are made using other legislation pertaining to the topic of copyrighting.
The doctrine of fair use is not a law by itself, but it is incorporated into multiple other pieces of legislation pertaining to copyright. Below are some of the laws and acts that are used when making cases about fair use.
US Copyright Law
The United States passed the Copyright Act in 1976. This act prevents the unauthorized replication of a work. The copyright only covers the exact replication of a work; the ideas held within the work are not protected. Because of the copyright act, any author or creator is not required to have to register with the copyright office or put a seal on their work; it is automatically protected.
Protection under the copyright law applies to published and unpublished works. These works include any kind of intellectual property such as music, art, literature, etc.
Within the copyright act, there is a provision for the doctrine of fair use in Section 107.
Fair Use - Section 107
Section 107 of the copyright act gives the conditions under which a reproduction of a work is able to be used without gaining permission first. This exemption can be used by teachers and professionals alike to share information and knowledge with peers and students without using valuable time to get permission to share the information.
There are four factors that influence the decision as to whether or not a piece is being used fairly. The factors are:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
All of these factors should be taken into consideration when using another person's works. There is a lot of freedom within the parameters of fair use for property to be redistributed, but because of that freedom the lines guarding the copyright are also a little blurred.
FAIR USE Act
- The FAIR USE Actalso deals with the idea of copyrighting and redistribution, but it has a different agenda. FAIR USE stands for “Freedom and Innovation Revitalizing United States Entrepreneurship Act of 2007”. This was a proposed law that was never passed, but it posed problems for the Digital Millenium Copyright Act.
Digital Millennium Copyright Act
- The Digital Millennium Copyright Act [3] was passed in 1998 by President Bill Clinton as an amendment to the Copyright Act focusing on bringing copyright into the digital realm. It gave heavier penalties for copyright infringement on the internet along with criminalizing measures taken to obtain copyrighted work on the web without proper permission. The DMCA implements two different treaties created in 1996 by the World intellectual Property Organization (WIPO). The treaties included are the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
Prominent People
Hector Postigo [4] - “The Digital Rights Movement:The Role of Technology in Subverting Digital Copyright”
Dr. Postigo is an Associate Professor at Temple University in Philadelphia, Pennsylvania. He teaches in the Department of Broadcasting, Telecommunications, and Mass Media. He has written two books that focus on the Digital Rights movement and the effect on copyright laws.
