What’s Fair about Fair Use?
This past week, I read a number of articles on copyright and fair use from the U.S. Copyright Office, Stanford University Libraries, Reference & User Services Quarterly and the University of Texas. The purpose of this section is to provide an overview of fair use guidelines in order to move closer towards developing a framework for understanding fairness within the context of this study.
The U.S. Copyright Office states that Section 107 of the Copyright Act of 1976 “contains a list of the various purposes for which the reproduction of a particular work may be considered ‘fair,’ such as criticism, comment, news reporting, teaching, scholarship, and research.”
Stanford University Libraries writes that “Comment & Criticism” and “Parody” are the two main categories within which a fair use analysis of copyrighted works can be applied. In the first example, “The underlying rationale of this rule is that the public benefits from your review, which is enhanced by including some of the copyrighted material.” In this case, fair use allows you to “reproduce some of the work” without obtaining permission. A parody, on the other hand, allows for a “fairly extensive use of the original work.” However, the website makes clear that “there are no hard-and-fast rules” for applying a fair use analysis of copyrighted materials.
Section 107 provides guidelines, known as the “Four Factors,” upon which fair use of copyrighted materials are considered. The University of Texas explains these fair use factors in the following
- What is the character of the use?
- What is the nature of the work to be used?
- How much of the work will you use?
- What effect would this use have on the market for the original or for permissions if the use were widespread?
Stanford University Libraries, in their chapter on “Measuring Fair Use: The Four Factors” adds, “At issue is whether the material has been used to help create something new, or merely copied verbatim into another work.” Here, it is important that the use of copyrighted material is used with a “transformative” purpose. But as the website explains, “the only way to get a definitive answer on whether use is a fair use is to have it resolved in federal court.”
Here, yet again, the “presence of conflicting claims” plays an essential role in ultimately determining what is considered fair use and how we can understand fairness within the context of fair use and copyright law.
