Exceptions to Copyright

Sameer Prasai
August 15, 2021

The public domain and creative commons offer plenty of resources for content creation. But what if you want to build on an original work that is copyright protected? For example, quoting a paragraph from a recently released book you are reviewing in the local newspaper? Or what if you want to do a parody of a commercial music video? The safest approach is to get permission from the author to make derivative work from the original content, which, sadly, isn’t always possible. The good news, however, is that there are exceptions to the copyright law which make it possible for you to legally use a copyrighted work without the author’s permission.

The first unambiguous exception to copyright laws is for creating accessible materials to the physically disadvantaged people. For example, braille or audiobooks. The specialized format, however, must contain the statement “Further reproduction or distribution in a format other than a specialized format is prohibited.”

Copyright laws maintain the delicate balance between making knowledge accessible for public benefit and providing the author with the returns they deserve for their work. To maintain the right balance, there exists the most famous and controversial exception to copyright, which deems the use of copyrighted material as appropriate or “fair” if it satisfies a set of criteria inclined towards the benefit of the public and progress of science and arts. This exception to copyright is known as “fair use” in the US. Its less flexible British counterpart “fair dealing” governs such cases in the UK and Commonwealth of Nations. In this article, we’ll focus on fair use as per US law. The idea behind fair use is generic and forms the heart of similar laws in different countries. 

There is no one definition for fair use, and what is fair use and what is not is still a topic of hot debates and discussions in courtrooms. Therefore, the only way to get a definitive classification on whether a particular use is  fair or not is to get it resolved in court. However, there might be situations when we have to reasonably conclude whether using a particular use would be fair or not.

For example, while writing this blog, we found an extremely informative blog Measuring Fair Use: The Four Factors by Richard Stim. We think quoting a small portion from the original blog verbatim, like the following, would greatly benefit our readers.

Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important To understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict.

The four factors judges consider are:

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken
  • the effect of the use upon the potential market

At this point, you might be trying to shout to us, “You have not obtained the permission to copy that portion! You are violating copyright!” That is absolutely true. We don’t have the permission to copy, and we would very much like to get permission. But we are afraid we might annoy the author by asking for permission, and we are not sure the author would be able to respond by our deadline. So, let’s analyze whether the use is fair or not on the basis of the excerpted factors:

  1. The first factor, the purpose and character of your use (also known as the transformative factor) encourages us to consider whether we are just copying the work or are we adding something new to it. Have we added any new value to the original work, by giving it a new expression, understanding, aesthetic, or insight? It appears to us, we have. We are writing this blog solely for educational purposes, and we are elaborating on each factor the way we think would suit the readers of this blog the best. So we think we can safely check the first criteria.

    This factor can often be observed in parodies, where a parodist takes an original work and gives it new expression by ridiculing it with humor. Works such as criticism, review, or commentary also qualify as a transformative use, because again, value is being added to the original work.
  2. The second factor, the nature of copyrighted work, asks us to evaluate the creativity in a body of work. The more creativity required in its making, the stronger is the copyright protection it gets and thus harder to qualify for fair use. It takes more creativity to write a novel than to write an article explaining the four factors determining fair use. Because knowing these facts about fair use benefits the public, it is likely to constitute fair use. It is important to note that this factor also considers whether a work is published or not. If these facts were not published in a blog,we could not excerpt them here without permission because the creator should have the right to control the first public appearance of their work.
  3. The third factor, the amount and substantiality of the work, assesses how much and what is being copied. If it is a small amount, like in this case, it is probably fine. But if we had pasted the whole article, then it would not be fair use. However, it is not only how much that matters, but also what. This prevents people from lifting the heart of a work and possibly devaluing the original work. The four points are important portions of the original article but because those points are generic while talking about fair use, we can safely assume that we haven’t borrowed the heart of the article.
  4. The fourth factor, the effect of the use upon the potential market, requires us to think about whether copying a particular work may replace the original. In such cases, the original creator is financially disadvantaged, which is against the very spirit of copyright laws— to encourage content creation. So in our case here, there is a chance that search engines might favor this blog over the one where they were originally listed. However, we think the original article is more detailed and elucidated with examples, which this blog can not replace. 

With factors 1, 2, and 4 firmly established and factor 3 reasonably established, we  think the excerpt does qualify for fair use. So we can include it here. However, this is by no means a definitive analysis, and as unlikely as it may be, we should be open to any legal notices.

 

References:

Measuring Fair Use: The Four Factors – Copyright Overview by Rich Stim – Stanford Copyright and Fair Use Center

Featured Image taken from copyrightexceptions.eu