Skip to main content

Fair Use - Part 1: The Basics

If you read Monday's introductory tutorial on types of intellectual property, you probably noticed the conspicuous absence of several issues, fair use and first sale among them. I've discussed first sale in the context of digital media fairly extensively, so I will likely let those posts stand as a primer on first sale, unless it becomes important for another tutorial. Fair use, on the other hand, demands its own tutorial, largely because many of the most visible intellectual property conflicts involve fair use at some level. Rather than explain that assertion just now, let's begin the tutorial and return to that point once the basics have been explained.

Fair use is a part of copyright law. As explained in the previous tutorial, copyright gives the creator exclusive control over making and selling copies of the work, and authorizing the creation of derivative works (translations, adaptations, etc). These rights are often understood to be limited by fair use. In other words, a fair use is a use of copyrighted material (for instance, making and distributing copies) that would infringe on copyright were that use not defined by law as “fair.” There are four main factors that are weighed to evaluate a fair use:
  • purpose of the use – noncommercial and educational uses weigh toward fair, for example
  • the nature of the copyrighted work – if the work presents its content as fact, the copyright-holder cannot assert copyright in the facts themselves
  • the amount or substance of the copied material – in general, smaller excerpts are more likely to be considered fair
  • the potential for the use to harm the commercial market for the original – designed to protect the ability of the creator to profit from his work, while allowing some non-authorized use
The first thing to notice is that subjective evaluation plays a fairly hefty part in determining whether a use is fair or infringement. Take the first factor for example. Whether a use is educational is fairly objective. If I photocopy a poem for my class to read, that's an educational use. The same factor is invoked for excerpting a novel for the purposes of review, another objectively determinable use. The problems begin with another type of use usually evaluated under the umbrella of that first factor: parody. Use of a work or a portion of a work for the purpose of parody is supposed to weigh in favor of fair use, and Weird Al Yankovic has made quite the career on that factor. Nevertheless, parody is not a carte blanche for making use of copyrighted material. Consider the case of Walt Disney Productions vs Air Pirates in which Disney sued the producers of an underground comic strip for depicting Mickey and Minnie Mouse using drugs and having sex. While one might think that such use would clearly constitute parody of Disney's antiseptic family-friendly image, the Air Pirates ultimately lost the suit. The lesson, as it were, is that a cartoonist's parody and a lawyer's infringement can indeed be one and the same.

Likewise, the third factor poses problems for subjective evaluation. Exactly how much is too much might vary depending on the nature of the work. Excerpting a single page from a novel just does not constitute a substantial copy, but copying the entirety of a single poem certainly looks like a substantial copy. Trying to set standards, such as the percentage of the work, invites incoherence. Consider setting the limit at 1% of the work. That percentage might constitute half a page of a short novel, but a few words of a short poem. Even setting standards by medium is problematic in this regard. While 1% of Fight Club by Chuck Palahnuik might be about a page and half, the same percent of Infinite Jest by David Foster Wallace would allow one to copy ten pages. The inevitable conclusion from such a standard is that the length of the work determines the fairness of the use, posing the question as to why the length of the original should determine whether or not a use is infringing.

The nature of the original seems more straightforward. The author of a textbook cannot assert copyright in the facts described, but can assert copyright in the format of the book, the way those facts are presented. If any readers have followed the recent Dan Brown craze, you might have run across a copyright infringement lawsuit regarding The DaVinci Code. Some of the bizarre conspiracies utilized in the novel made appearances in a 1982 book Holy Blood, Holy Grail by Michael Baignet, Richard Leigh, and Henry Lincoln. When The DaVinci Code became successful, the authors of Holy Blood, Holy Grail sued Dan Brown for copyright infringement. Baignet, Leigh, and Lincoln lost the suit because their book presented those conspiracies, specifically the marriage and progeny of Jesus and Mary Magdalene, as fact. Facts cannot be controlled under copyright due to the so-called idea-expression dichotomy, but that will be the subject of its own tutorial. For now, suffice it to say that if you don't want your conspiracy theory co-opted by a bestselling novel, don't present it as fact.

The final factor concerns protecting the market for copyrighted works against derivative works or copies. Making a backup copy of a CD does not significantly harm the market for original copies. Distributing that backup, the making another and doing the same, does. In general, this aspect of fair use is designed to protect personal copies. For instance, Sony Corp of America v Universal City Studios concerned the right of individuals to record television programs. When Sony released the first home video cassette recording devices, some major studies, Universal included, were concerned at the potential for copyright infringement inherent in the devices. Using the newly created Betamax, an individual can record a broadcast, make a copy of the broadcast, using another Betamax machine, then sell the copies. The Supreme Court ultimately ruled that consumers did not purchase VCR's for the purpose of infringement, but primarily for the purpose of “time-shifting,” recording broadcasts so that they can be watched at a more convenient time. Time-shifting, as a personal and not commercial use, does not harm the market for commercial copies sold by the major studios, so such use is fair.

Now that the major factors are covered, I've realized that there is a great deal to say about the history of fair use, as well as myths and conflicts, likely enough for its own tutorial. As such, the next installment will address further issues regarding far use, not that the basics have been explained.


Popular posts from this blog

RPG Systems: An Analogy with UI Design

The current game in our weekly role-playing group is Deadlands. The previous game was Shadowrun. Both rule systems lie closer to the “chunky” side of the spectrum. Shadowrun has a particular reputation for its complex and somewhat cumbersome rules, and while Deadlands has less overall complexity, the system has a degree of granularity that interrupts play more often than it enhances narration. I enjoy role-playing games because I like participating in a good story. The rules system provides a set of constraints for the characters, the setting, and the conflicts. They help give the narrative structure, a background against which the story will take place. Too few rules, and telling an interesting and well-developed story becomes difficult. Too many rules tend to get in the way of individual scenes or events. With the right balance, it’s possible for the game master, usually me, to be sufficiently fluent in the rules system to resolve any conflict without extended consultation of on

Some Thoughts on Dharma Decline

Many of these blog entries have concerned my main research in political philosophy, intellectual property and technology. Now for something a little different, I thought I would write up some thoughts on another area of interest: Buddhism. For those who don't know, I've taught courses in Buddhism since I began teaching, having learned a great deal from my undergraduate advisor, Donald Hanks, and Ashok Aklujkar, a now-retired professor of Indian languages, literature and philosophy for whom I served as teaching assistant during my time at UBC. Thanks to their instruction, I developed a solid knowledge of the Indian Buddhist tradition, and I've used what they taught me to deepen and develop that knowledge to improve my teaching and my personal meditation practice. While I don't want to write a full tutorial on Buddhist thought, I would like to discuss a notion that prevails in some traditions, and that discussion will require one to know a few basic ideas. At its cor

Justifications for Intellectual Property Part 1: Utilitarianism

There is no way this tutorial series would be complete without some discussion of justifications for intellectual property. While not necessarily a matter of law, some knowledge of the philosophical foundations will provide a better sense of the values at stake in intellectual property debates. Notice, for instance, that the tutorials on fair use were punctuated with appeals to values, social goods, and individual rights. Without an understanding of the moral and political framework against which the law stands, one can very easily find oneself in a stalemate, with one value pitted against another and no way of deciding which should prevail. To understand the jurisprudence around intellectual property rights, one has to have some idea of the justifying theories to which attorneys and judges appeal in their arguments and decisions. So, without further ado, let's get to the tutorial. There are three main ways of justifying intellectual property rights: the Utilitarian theory, th