(Defenses to copyright infringement, Part II)

Sometimes people want to use portions of copyrighted works for purposes other than complete reproduction and distribution of the work for enjoyment or profit.  Examples include book reviews (which may quote portions of the book), school reports (which may include facts or excerpts from books and other sources) and research (which may use or build on the work of other scholars and researchers). 

Copyright law exists to “promote the Progress of Science and the useful Arts” (U.S. Constitution, Article I, §8, clause 8).  Without a mechanism to permit people other than the copyright holder to make permitted use of copyrighted works, the law would become more a method for the protection of rights and less a tool for the promotion and advancement of useful works as a whole.

Legal Defenses provide a mechanism for the use of copyrighted works by people other than the copyright holder.  Part I of this series discusses many of these defenses.  Part II will focus on the Fair Use Doctrine, and Part III will examine use of works in the Public Domain.

The Fair Use Doctrine provides the largest and most complex defense to copyright infringement.  Many people exercise their rights to fair use of copyrighted material without understanding or even knowing about the doctrine that provides legal permission for their actions.

The Fair Use Doctrine grants people other than the copyright holder a right to use or reproduce portions of copyrighted material without legal liability for a variety of purposes including “criticism, comment, news reporting, teaching, scholarship and research” (17 USC 107, describing the “fair use” of copyrighted works).  This list is illustrative, meaning that other uses may (or may not) also qualify as legally permissible fair uses of copyrighted works.

Use which falls within “fair use” does not qualify as infringement and does not create legal liability for the user.

Fair Use is a facts and circumstances test, which means that the law does not establish an absolute test, but rather evaluates each use of copyrighted material independently to see whether the use constitutes protected Fair Use or unprotected infringement.  Users should evaluate intended uses of copyrighted works to see whether the use seems likely to qualify as Fair Use and should seek legal counsel before engaging in questionable uses.

Questions to ask when attempting to evaluate a potential “Fair Use” include:

1.  Is the original work protected by a valid copyright?

            Remember, copyright protection is a prerequisite to infringement liability.

2.  What impact will the proposed use have on the market for the original work?

            This is the most important factor in determining whether or not a use qualifies as fair use or infringement.  Uses which reduce or negatively impact the market for the original work cannot qualify for fair use.  An exception to this occurs when the use criticizes the original work in a manner which reduces consumers’ interest in acquiring the original work.

            For example: A textbook which quotes large sections from another textbook, enabling purchasers to use the new book in place of the original has probably engaged in infringement.  An article which quotes from a textbook as part of a negative review which causes consumers to cease purchasing the textbook has probably engaged in fair use.  The negative review, if inaccurate or libelous, may create different kinds of legal liability for the writer and publisher, but those forms of liability do not arise under copyright law.

3.  What is the purpose and character of the intended use?

            Commercial uses of copyrighted works, meaning attempts to profit directly or indirectly from the use and reproduction of copyrighted works, seldom constitute “fair use.”  Copyright law generally permits the copyright holder to control and profit from commercial use of the copyrighted work.  If financial gain (or preventing the “need” to purchase the copyrighted work from the copyright holder) is the primary purpose or likely result of the use, the user should seek the advice of experienced legal counsel before using copyrighted material

            For example:  copying all or large portions of copyrighted material for use in a school classroom, in order to prevent having to purchase individual copies for student use, probably constitutes infringement rather than fair use.  Copying the first chapter of a textbook for students to use on a temporary basis while copies of the textbook (previously purchased by students or by the school) are shipped from the publisher is more likely to constitute fair use.

4.  How much of the copyrighted work will be used?  How substantial are the portions used when compared with the original? 

            The law does not establish how much of a copyrighted work may be used before the use ceases to qualify as “fair use” and becomes infringement.  However, courts often ask whether the fair use damages the market for the original work and whether the user has taken enough of the copyrighted work for the use to unfairly impact the copyright holder’s ability to control copying and distribution.  Fair use generally (a) supports or advances the new work or (b) quotes only as much of the original work as necessary to provide background information.

5.  Does the nature of the copyrighted work make this use seem like infringement?

            Sometimes known simply as “the nature of the copyrighted work,” this portion of the test essentially requires a user to evaluate whether use of the copyrighted work seems “in keeping” with proper use.  For example:     

6.  Has the user properly cited the original work and author?

            Quotations and paraphrased materials both require proper citation (reference to the original work and its author, presented in an appropriate and accepted form).  Failure to properly reference the original work may result in liability for both copyright infringement and Plagiarism (a separate criminal act involving improper appropriation and use of material written or created by someone else).  This blog will address proper citation and plagiarism after completing Part III of copyright defenses.

Christians should carefully evaluate uses of copyrighted material both to comply with the laws of man (and comply with Romans 13) and to comply with the LORD’s instructions to “treat others the same way you want them to treat you” (Luke 6.31) and “love your neighbor as yourself” (Leviticus 19.18, Matthew 22.39).

Christ instructed the Pharisees to “render unto Caesar the things that are Caesar’s, and to God the things that are God’s.”  (Mathew 22.21)  Copyright infringement violates this fundamental rule by attempting to wrongfully take something which does not belong to the user without giving proper tribute to the copyright holder.  Fair use, on the other hand, permits advancement of “the useful arts” while continuing to respect both the law of man and the higher law revealed in Scripture.