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Fair Use And Copyright Infringement - A Loose Translation Of Rights

By Author: Steve Jenkins
Total Articles: 38

A couple of years ago, I was asked to write a paper on the "Fair Use" section of the U.S. Copyright Law. I begged off the project, explaining that I didn't feel remotely qualified. In all honesty, I don't feel much better equipped today to address this issue, which I find enormously complicated. But so much of late has come about that deals with what I perceive as an abuse of authors' rights, I feel compelled to offer a loose translation of "Fair Use" from a writer's perspective and not that of a jurist.
The Four "Fair Use" Factors Plus One
The "Fair Use" of a copyrighted work is constructed around four principles as defined in Section 107 of U.S. Copyright Act, with a fifth, unofficial metric thrown in for good measure.
The preamble states that the reproduction of copyrighted material is considered "fair" if this copy is used as criticism, comment, news, teaching, scholarship, or research. The four factors used to legally consider if the particular use of something is "fair" 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.
"Fair Use" Is a Muddle of Confusion
"Fair Use" doctrine provides no specificity whatsoever as to the number of words that can be used; nor the number of lines; nor even the amount of notes that may be taken without permission. And to address perhaps the only issue that's clear in any of this, citing the author of a passage, as we all did with footnotes in school, is not a substitute for gaining the permission of the copyright's owner.
Any Writer Can Sue If It's Felt the Reproduction Wasn't Flattering
This is factor number five, and as silly as this might seem, plaintiffs have been awarded judgments based on having their feelings hurt. With such abstract guidelines, is there any doubt why "Fair Use" leaves people who routinely deal with it scratching their heads? "Fair Use" probably gives credence to the Cory Doctorows of the world who believe that everything should be public domain once it's published. But what happens to that thinking when applying the Supreme Court ruling in 2012 that paved the way for works in the public domain to be copyrighted. Yes, the insanity surrounding "Fair Use" goes full circle.
What I Tell My Clients
As an editor, I have always strongly advised all of my clients to acquire written permission for anything they might use that is not their own. If not, the only thing certain about "Fair Use" is that they could be litigants in a protracted lawsuit that might cost them some martini time and a whole lot of aggravation.


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