How Fair is Fair Use

Fair use is a term you may have heard thrown around in discussions regarding copyright and intellectual property. From the term alone, you might think of it like “fair game”, as in you can take a work that falls under fair use and basically do whatever you want with it.

Not quite…

Rather, fair use is a doctrine, allowing for limited use of  copyright protected intellectual property without requiring permission from the person or company who holds the actual rights to that property. This rule is based on the freedom of speech rights in the United States Constitution.

So what falls under the fair use doctrine?

Basically everything. Well, maybe short of say, top secret classified documents from the CIA, but pretty much all intellectual property can be used under fair use. The fair use doctrine covers how you can use copyright protected property.

So what can you do with copyright protected intellectual property under the fair use doctrine? “Fair” does not mean what you think is fair. The term has a legal implication under the Copyright law. The fair use doctrine provides that you can use copyright protected material without authorization for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.  

To put it simply, education and news reporting are pretty much covered. In order to qualify as fair use under education, the actual purpose of the work has to be education. A teacher cannot simply screen a movie and charge a dollar per student for the viewing. The teacher actually has to substantiate the claim of education by using the movie as a learning tool, and not simply displaying the movie and leaving it at that.

Fair use can actually extend beyond education and news reporting, and go into derivative works, as well. For example, a music producer might take a one second clip from an existing, copyright protected song, and then use that one second clip as a sound byte in an otherwise original composition. This is where it can get kind of confusing though. In some cases, a judge might declare several seconds of a sampled song to fall under fair use, while in other cases, a one second loop might be deemed copyright infringement.

Much of it depends on the originality of the new song itself. For example, you might hear a rap song and not realize at first that the song appropriated a part of one of your favourite songs. On the other hand, you might hear a rap song that uses a much shorter sample, but which basically puts that sample on an endless loop without adding anything to the work besides a few rhymes added on top.

Articles that are free to view online are not always free to be copied and republished. It is not fair use to republish such articles even if you have paid for them. Attribution does not cure copyright infringement. You can be held liable for copyright infringement even if you do not make any money out of it. A copyright holder has the exclusive right to copy, distribute and display the work.   

If there’s any confusion, it’s always a good idea to get permission, even if it might not be legally required. In order to get a good idea of whether or not you’re covered before going through with any plans, always consult an attorney.

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