What is Fair Use?

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Note: In some legislations ‘Fair Use’ is known as ‘Fair Dealing’.

 

 

A recent article Creative Commons outlined how copyright holders may grant open permission for others to copy, edit, build upon, etc., their copyrighted works. Though there are fundamental differences, ’Fair Use’ is, in a sense, an extension of this facility. It acts as a limitation and exception to the exclusive right granted to the author of a creative work under copyright law.

In United States of America copyright law, Fair Use enables brief excerpts of copyright material to be quoted verbatim, without permission or payment, for such purposes as:

  • Criticism.
  • Comment.
  • Critique.
  • Review.
  • Quotation.
  • News Reporting. (Does not include photographs and requires the source is acknowledged.)
  • Teaching.
  • Private Study.
  • Research.

Definitions

A legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner.’ (Merriam-Webster Dictionary)

Reasonable and limited use of copyrighted material so as not to infringe upon copyright.’ (Dictionary.com)

Fair Use is ‘intended to balance the interests of the copyright holder with the public interest.’ (Wikipedia)

Determining Fair Use

Naturally, to protect interests, especially commercial and financial, over the years there have been numerous litigations. Fair Use originates from an 1841 court ruling. When determining Fair Use courts usually look at four factors:

  1. Purpose and character of the use.
  2. The nature of the copyrighted work.
  3. The amount and substance of the portion used.
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Fair Use is not limited to text based works. It also applies to musical, dramatic, artistic, literary, and typographical works.

Obviously, if someone utilises another’s copyrighted material for their own commercial or financial benefit they cannot claim Fair Use.

Application

Bearing in mind this website and blog are principally designed to benefit authors and readers the application of Fair Use will be considered from their perspective.

Authors

In their sharing, publicity, and marketing authors will often refer to:

  • Publishing companies.
  • Writing organisations.
  • Websites.
  • Blogs.
  • Software providers.
  • Other authors.
  • Other’s Books.
  • Etc.

Naturally, many aspects are subject to copyright e.g. Company name and logo (Amazon; Apple; Google; etc.); Content (articles; images; etc.); and so on. However, under Fair Use it is permissible to reproduce some elements of these, especially if the intention is to help or teach. But it needs to be born in mind the legislation only permits the use of ‘part’. To reproduce the whole without permission may, probably will, be seen as copyright infringement.

Note: Direct quotes from other author’s book(s) is not covered here. These sometimes require, if the book is not in the public domain, specific permission. Authors wishing to include such quotes in their own works should seek legal advice.

Readers

As may be noted from the start of this article: criticism; comment; critique; review; and quotation are included within Fair Use.

It is assumed, at least hoped, readers will have the courtesy to write and publish reviews of books they have read, especially those they found engaging and enjoyable.

A review naturally requires the book be referred to, utilising, where the review is published in a website and/or blog and on social media, the cover image and sometimes a quote from the book or its blurb, all of which are subject to the authors’s copyright. However, under Fair Use terms reproducing these is permitted.

Conclusion

Beside comprehending the law, Fair Use primarily relies upon common sense.

If there is any uncertainty it will help to check for any specific statements prohibiting any sharing or reproduction.

Although not generally required, it may be worth considering the addition of an attribution for the original work.

Using any elements of another’s work for commercial or financial gain is prohibited.


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