We all know it when we see it: fair’s fair. We may be vaguely aware that other people see fairness slightly differently than we do, but that’s not important. What we feel to be fair is obviously what’s fair. We all leaned about it in the playground.

Unfortunately, for a concept so important in copyright law, fair use is “defined” in our law about as precisely as my first paragraph. Copyright owes its existence to a wish to safeguard intellectual property for the good of society; it wasn’t invented as a way to line the pockets of corporations. It was all about encouraging research and writing so that readers could benefit from the writer’s insights and go on and build on them. Now the purpose of copyright is to restrict access by others to “your” copyrighted works. Of course creators of intellectual property deserve to be rewarded, but the real motivation behind copyright was originally to protect the creators so that they’d be keen to create and share, and to make it straightforward for others to stand on their shoulders and extend the reach of knowledge. We’ve come a long way.

Our Copyright Law §107. Limitations on exclusive rights: Fair use says

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1.  the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2.  the nature of the copyrighted work;
  3.  the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4.  the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The trouble with this clause, which isn’t even 100% clear on the face of it, is that it’s only there as an illustration of the sort of thing that might be considered a valid excuse for using someone’s copyright without permission. It’s not a list of permissible uses, though it does first appear to set up a list of OK uses; but it then backtracks and subjects them to assessment by four tests. Effectively the only way to know for sure whether this or that use of copyright material is fair or not, is to be sued by the copyright owner, and to win the lawsuit. An expensive test. Most publishers have concluded that it’s better (cheaper) to work on the basis of when in doubt apply for permission. The US Copyright Office maintains a Fair Use Index where you can look up cases about fair use, and get bogged down in glorious detail. 

This video from Professor Tom Bell is a sort of trailer trailer for his book Intellectual Privilege: Copyright, Common Law, and The Common Good.

 

Professor Bell doesn’t waste time on fair use in his video: but his criminal mastermind is surely innocent of the crimes she stands charged with. Making a copy of a page or two of a book for your own study is not an infringement of copyright: it’s fair use. The joke joke is that its creator would probably wish that everyone should forward the joke to as many friends as possible, so that maximum exposure was achieved, though “publishing” it might nevertheless technically be an infringement. Drawing your own Bart Simpson would only move into the realm of copyright abuse when you sought to publish it — you can happily draw away for yourself: if you made it into a parody, you’d probably be protected anyway. Since Professor Bell made his video Happy Birthday has of course been rescued for the public domain.

The video is taken from Copyright as a government-granted privilege at The National Review.

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