Section 107 of the Copyright Act
FIG. 1: Section 107 of the Copyright Act Defines Fair Use
The United States Code, Title 17 contains the country’s Copyright Act. In Chapter 1 the subject matter and scope of copyright is set out. Section 107 of the Copyright Act gives guidance as to what may be considered fair use.
Briefly, Section 107 states the fair use of a copyrighted work, for purposes such as criticism,
comment, news reporting, teaching, which includes 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.
(4) The effect of the use upon the potential market for or value of the copyrighted
work.
Further, the fact that a work is unpublished shall not itself bar a finding of fair use if
such a finding is made upon consideration of all the above-mentioned factors.
As far as the mentioned points are concerned:
1. Purpose Character of Use Commercial or Nonprofit.
FiG. 2: Nonprofit Educational Use Likely to be Fair Use
The Courts are more likely to find that nonprofit educational uses are fair. It does not mean that all nonprofit educational and noncommercial uses are fair, and all commercial uses are not fair. The court will balance the purpose and character against the other factors mentioned. The court will consider whether the use is transformative, meaning that it adds something new or changes the original work in some way. Transformative uses are more likely to be considered fair.
2. Nature of Copyrighted Work
FIG. 3: A Composed Song Less Likely to Support a Claim of Fair Use
A more creative or imaginative work, such as a novel, movie, or song, is less likely to support a claim of fair use than using a factual work, such as a technical article or news item. This is because the law generally recognizes a greater need for the free use of factual works to promote the progress of knowledge and understanding, while recognizing that creative works have a greater need for protection against unauthorized use.
The use of an unpublished work is less likely to be considered fair. The reason why the fair use of unpublished works is generally disfavored is because the author’s right to control the first public appearance of their work is recognized as an important aspect of copyright law. However, the fair use of unpublished works may be allowed in certain limited circumstances, such as for scholarly research or news reporting.
3. The Amount and Substantiality of the Portion Used
FIG. 4: If a Large Portion (Horse and Chariot in Figure) of
Copyrighted Work Included Fair Use Less Likely to be Found
If the use includes a large portion of the copyrighted work, fair use is less likely to be found. A large portion would be for example the horse and chariot in Figure 4. On the other hand, if the use employs only a small amount of copyrighted material, fair use is more likely. However, some courts have found the use of an entire work to be fair under certain circumstances. In other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part or the “heart” of the work. In other words, when considering the substantiality of the portion used, the court will look at the qualitative significance of the portion taken in relation to the work as a whole. Using the “heart” or the most important part of the work may weigh against a finding of fair use, even if the amount used was relatively small. Conversely, using an insignificant portion of the work may weigh in favor of a finding of fair use, even if the amount used was relatively large.
4. The Effect Upon the Potential Market for or Value of the Copyrighted Work.
FIG. 5: Court Considers Effect on Potential Market
When Considering Fair Use
The court considers to what extent the unlicensed use harms the existing or future market for the copyright owner’s original work. The court takes into account whether the use is hurting the current market for the original work. It may be that the unlicensed use, for example, is displacing sales of the original. The court also considers whether the use could cause substantial harm if it were to become widespread.
Put another way, if the use of the copyrighted material is likely to significantly reduce the demand for the original work or cause economic harm to the copyright owner, this factor may weigh against a finding of fair use.
Similarly, if the use of the unlicensed material is likely to harm the potential market for derivative works based on the original work, this may also weigh against a finding of fair use. For example, if a movie studio were to create a parody of a copyrighted work, but the parody was so well-done that it would substitute for the original work in the marketplace, this would weigh against a finding of fair use.
Ultimately, the determination of whether a particular use is fair use will depend on the specific facts and circumstances of the case and will be made on a case-by-case basis.
Reference
“U.S. Copyright Office Fair Use Index.” Copyright.gov | U.S. Copyright Office. February 2023. Accessed April 3, 2023. https://www.copyright.gov/fair-use/
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