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Key Topics
Requirement
COPYRIGHT LAW AND FAIR USE
Solution
INTRODUCTION
The U.S. Court of Appeals in New York City had stated in 1986 that fair use was ‘the most troublesome concept in Copyright law. This description can be said to be accurate today also.
In order to properly understand what ‘fair use’ is all about, we need to first understand what is “copyright’ per se.
“Copyright, a form of Intellectual Property Law, protects original works of authorship including literary, dramatic, musical, and artistic works such as, poetry, novels, movies, songs, computer software, and architecture.” (Office)
Section 107 of The Copyright Act, 1976, titled ‘fair use’ specifies some of the conditions according to which, the copying of a limited amount of copyrighted work was NOT a copyright infringement.
A copyright is created as soon as a new piece of work is created by someone. It applies to work whether published or unpublished. Anything from an image uploaded on Face book to a new blog post, etc. is protected by copyright laws the second it is created. Copyright is an automatic right and registering some work in the U.S. Copyright Office is completely voluntary. Although, in order to file a suit for infringement of copyrights, one needs to be registered at the copyright office.
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WHAT IS FAIR USE?
Fair use can be seen as an exception to the right of inimitability that is borne out of a copyright.
In U.S.A. fair use allows limited copying of a copyrighted material without the proper consent of the owner if it benefits the public.
The Copyright Act, 1976 provides that
“ Not being in contradiction with sections 106 and 106A, the fair use of copyrighted material, including use by reproduction in copies or phonorecords or any other means mentioned in that section, for things like criticism, comment, news reporting, teaching (as well as multiple copies for classroom purposes), scholarship, or research, cannot be called a copyright infringement.” (Copyright Law of the United States of America)
As can be gathered from above, fair use is not exactly a clear cut concept and can be quite vague. The decisions in cases of fair use all depend upon their own circumsatnces. They are subject to 4 factors which mainly determine what can constitute as fair use. These four factors have been developed over time via precedents.
THE FOUR FACTORS OF FAIR USE
The 4 factors of fair use mainly talk about how and when it is “fair” for one person to copy limited amounts of copyrighted material without the owners consent.
Section 107 of the Copyright Act, 1976 further states that
“ In deciding if the use made of a work in any particular case is fair use, the influencing factors to be taken into consideration are—
the purpose and character of the use, also whether it is of commercial nature or educational;
the nature of the copyrighted material;
the amount and substantiality of the portion used when compared to the entire copyrighted material; and
the effect of the use on the market for or value of the copyrighted work.”(Copyright Law of the United States of America)
1.The purpose and character of the use.
The first factor has had varied opinions in different cases under different circumstances. In the case of Sony vs. Universal City Studios 464 U.S. 417, 451(1984), it was held that the purpose and character of the use, counting also if the use is commercial or for educational or research purposes, it has been held that every commercial use is presumptively unfair. (Kumar, 2004) Whereas in the case of Consumers Union Inc vs. General Signal Corp.724 F.2d 1044 (1983) , commercial use was found to be fair. There have also been cases where educational purposes have also been deemed unfair.
What needs to be understood here is that the main agenda behind copying the copyrighted material needs to be considered in order to deem it fair or unfair, if there is a motive of deriving any profit from the copyrighted material without paying for it. Its tendency to commercialize decreases the more transformative the copying is.
2.Nature of the copyrighted work
The nature of the copyrighted work that has been copied is also of great importance as this helps determine whether the copying of the work was fair or not.
The law allows a narrower or wider perspective depending upon the characteristics of the copied work. Use of work that is commercially available mostly for educational purposes is disfavored strongly. The courts tend to be more protective of creative works like art, poetry, etc. it also needs to be noted whether the copied work is still in print or not.
3.The amount and substantiality of the portion used.
The amount of the work that is copied also plays an important role in determining its fairness. Courts have opined that a small amount copied from a copyrighted text may amount to fair use if it does not take away from the ‘heart of the work’. For eg. copying a quote from a magazine will be fair use until and unless it is not quoting the journalistic scoop. (Columbia University Libraries/ Information Services)
Also, not all parts of a copyrighted material are protected, so copying the unprotected part is fair use.
In cases of parodies, copying the whole copyrighted material can also be fair use. It generally depends on how much is needed to achieve the purpose.
4.The effect of the use on the prospective market for or value of the material
The effect on the market is quite a complicated matter and courts opine that it may also be the most important factor. The effect can also be closely linked to the purpose. If the purpose is mainly educational or for research, the market effect is difficult to prove and if the purpose is commercial then adverse market effect is presumed. (Kumar, 2004)
To determine whether something is fair use or not, all four factors need to be taken into consideration and no one factor can determine the same. Even though courts say that the fourth factor may be the most important, all four factor HAVE to be taken into consideration.
CASE ANALYSIS:
1.Sony vs. Universal City Studios.464 U.S. 417, 451(1984)
In the aforementioned case, Sony Corp. manufactures home videotape recorders, and the respondents i.e. Universal City Studios brought an action against the petitioners in the Federal District Court, alleging that VTR consumers had recorded some of the respondents copyrighted material and hence infringed their copyrights.
They sought monetary damages, an equitable accounting of profits and an injunction against the manufacturing and marketing of the VTR’s.
The district court had decided that petitioners had not infringed any copyrights of the respondents and denied all relief. The Court of Appeals consequently reversed the order and held the petitioners liable for contributory infringement and ordered the district court to award suitable penalty.
Held- The sale of VTR’s to the general public does not constitute contributory infringement of respondents’ copyrights. (JUSTIA)
Any individual could reproduce a copyrighted work for a ‘fair use’, the copyright materials’ owner doesn’t have the private right to such a use.
2.UMG Recordings vs. MP3.com Inc 92 F. Supp. 2d 349
In this case, the defendant had claimed that they offered a service to users that they could store and listen to their CDs from wherever they could access the internet. The defendant had purchased a large amount of the plaintiffs CDs and had converted them into mp3 format and store it on its site. Users could then access the music upon showing that they did already have a CD of the said song or album.
Held- The court had held that the defendants were guilty of infringing the copyrights of the plaintiff and suitable reward was given. (internet library of law and court decisions)
The court rejected the amount that copying the CDs was fair use on the part of the defendants because of the nature of copying and the purpose of it.
3.Kelly vs. Arriba Soft 280 F. 3d 934(9th cir. 2002)
This case was a topic of discussion for some time. Arriba Soft (formerly known as Ditto.com) was an image search engine like Google which provided people with numerous photographs of various things. They showed the thumbnails of the images necessarily but one could also access the whole image. This process is called in-line linking.
One Kelly, a photographer, realised that Ditto.com had taken his photos and also put them up on its website. He then brought an action against Ditto.com for infringement of Copyrights.
Held- The court held that the copying of the images till they were thumbnals would be compliant with S. 107 of the Copyright Act. (Electronic Frontier Foundation)
Following the case of Perfect 10 vs. Google, the court revisited the arguments that had been made in Kelly vs. Arriba Soft and deided that in-line linking does not infringe upon any copyrights.
4.Sega vs. Accolade 977 F.2d 1510 (pth Cir. 1992)
Sega was a Japanese Company that made video game consoles and it licensed the rights to other gaem developers to make games for their consoles. Accolade had wanted to sell their games on the Sega console but didn’t want to pay them for the same. Accolade modified the system in such a manner that the games could be played on the Sega console without the Sega computer code in it. Sega brought an action against them for copyright infringement but Accolade plead that their actions were protected by section 107 of the Copyright Act. (Law school case briefs)
Held- The court decided in favour of Sega at first but later the 9th Circuit Court reversed it decision and said that the actions of Accolade had indeed been protected by section 107 of the Copyright Act and that there had been fair use.
5.Campbell vs Acuff-Rose 510 U.S. 569 (1994)
The establishment of Acuff-rose music Inc. had sued 2 Live Crew and their record company on the ground that they had infringed upon the copyrights of the plaintiff in their pretty woman because Acuff-rose Inc. had the rights of Roy Orbinson’s Oh Pretty Woman. The defendant took the plea of fair use and said that the song was a parody of the aforementioned song.
Held- The court had first decided in favour of the defendants but later their decision was reversed and the Court Of Appeals held that the 2 Live Crew and their record company were liable for copyright infringement as even though the song was a parody, its commercial nature had made it presumptively unfair. (Oyez)
Other courts later criticised this judgement saying that judging the song only on its commerciality is the wrong thing to do and the purpose etc. should also be taken into consideration.
CONCLUSION
All instances of copyright infringement that take up the plea of fair use have to be dealt with individually according to their circumstances. U.S Courts have given varied decisions in this regard.
As in the case of Sony vs. Universal City Studios, the District Court had held that the petitioners weren’t liable for infringement but the Court of Appeals had later reversed the decision of the district court.
If the Court of Appeals had not done so, the consequences would have been different as that would have then changed the perspective of the courts towards infringement and fair use giving it an even wider scope than it already has.
Taking into consideration the four factors that come into play while determining fair use as an exception to Copyright laws, we can come to the conclusion that the provisions under section 107 of the Copyright Act, 1976 provide a very wide scope. But even so, it is a very vague provision as it does not give any specifications as such.
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(n.d.). Retrieved 12 3, 2015, from internet library of law and court decisions: http://www.internetlibrary.com/cases/lib_case198.cfm
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(n.d.). Retrieved 12 4, 2015, from Electronic Frontier Foundation: https://www.eff.org/cases/kelly-v-arriba-soft
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Columbia University Libraries/ Information Services. (n.d.). Retrieved 12 3, 2015, from Copyright Advisory Office: https://copyright.columbia.edu/basics/fair-use.html
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Copyright Law of the United States of America. (n.d.). Retrieved 12 3, 2015, from http://www.copyright.gov/title17/92chap1.html
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JUSTIA. (n.d.). Retrieved 12 3, 2015, from supreme.jusita.com: http://supreme.jusita.com/cases/federal/us/464/417/case.html
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Kumar, D. S. (2004). Photocopying Of Copyrighted Works For Educational Purposes: Does It Constitute Fair Use?
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Law school case briefs. (n.d.). Retrieved 12 4, 2015, from invipress.com: www. invipress.com/law/copyright/sega.html
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Office, U. C. (n.d.).
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Oyez. (n.d.). Retrieved 12 4, 2015, from oyez.org: https://www.oyez.org/cases/1993/92-1292
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