Unfortunately, the only way to get a definitive answer to the question of whether a particular use is fair dealing is to have it clarified in the Federal Court. Judges use four factors to resolve fair dealing disputes, as explained in detail below. It is important to understand that these factors are only guidelines that the courts can adapt to certain situations on a case-by-case basis. In other words, a judge has a great deal of freedom when making a fair dealing decision, so the outcome may be difficult to predict in a particular case. Fair dealing with a copyrighted work. does not constitute copyright infringement. Historically, this is the most important of the four fair dealing factors. However, this may no longer be the case, as many recent court decisions have focused more on whether use under the first fair use factor is considered “transformative.” This factor takes into account not only whether the defendant`s activities may harm the current market, but also whether the use may cause harm to potential markets that could be exploited by the copyright owner if the use were to spread. Again, the parody gets a slightly different fair use analysis in terms of market impact. It is possible that a parody reduces or even destroys the market value of the original work. That is, the parody can be so good that the audience can never take the original work seriously again.
While this can result in a loss of income, it is not the same type of loss as if an offender were content to appropriate the work. As one judge explained, “the economic effect of a parody we are dealing with is not its potential to destroy or diminish the market for the original – any bad criticism can have that effect – but whether it meets the demand for the original.” (Fisher v. Dees, 794 F.2d 432 (9 Cir. 1986).) Since there are no exact rules for fair dealing, you should use your best judgment when deciding whether or not to post materials on Canvas without permission. There is no precise number of chapters, paragraphs, or lines that are certainly right (or unfair), nor are there certain percentages. Copying a single chapter from a book can be fine, while copying the entire book is usually not. Consider the four factors above and try to be honest about whether your use seems reasonable. You can revise your judgment by answering this question: “If someone were to use so much of my work, would I think it`s right, or would someone want to ask my permission?” Borrowing small pieces of material from an original work is considered fair use rather than borrowing large pieces. However, even a small contribution can weigh against fair dealing in some situations if it represents the “heart” of the work. Fair dealing is an affirmative defense against a lawsuit for copyright infringement. It is potentially available in all media in terms of all types of unauthorized use of all types of copyrighted works. The fair dealing exception allows a party to use a work for such use in certain circumstances without the permission of the copyright owner and without compensation from the copyright owner.
The Copyright Act identifies certain types of uses, including criticism, commentary, reporting, teaching, science and research, as examples of activities that can be considered fair dealing. Whether you are an author, professor or student, there are many opportunities if you want to use the copyrighted works of others. This page explains the main aspects to consider when using copyrighted material, including determining whether a work is protected by copyright, understanding fair dealing, and deciding whether to seek permission for a particular use. For example, in one case, an artist used a copyrighted photo without permission as the basis for wooden sculptures and copied all the elements of the photo. The artist earned several hundred thousand dollars from the sale of the sculptures. When the photographer complained, the artist claimed that his sculptures were fair use because the photographer had never considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; What mattered was that there was a potential market for photography sculptures. (Rogers v. Koons, 960 F.2d 301 (2d Cir.
1992).) There are differences in copyright law between countries. The Berne Convention, which has been signed by 163 countries, requires countries to recognize works by foreign authors in the same way as those of their own nationals. For example, all works performed or published in the United States are subject to the provisions of U.S. copyright law, regardless of where they were originally created. Most countries have standardized their copyright requirements, so foreign copyrights usually last as long as U.S. copyrights: the author`s lifespan plus 70 years. When determining whether or not you can use a foreign work in a particular way, you must consider the specific circumstances of your case, such as the country where the work was created, whether the work is printed or not, and how you intend to use the work. 3.
Scope and relevance of the part used in relation to the copyrighted work as a whole In addition to the above factors, depending on the circumstances, other factors may also be considered by a court when considering a fair dealing issue. Courts assess fair dealing claims on a case-by-case basis, and the outcome of a particular case depends on a factual investigation. This means that there is no formula to ensure that a predetermined percentage or quantity of a work – or a certain number of words, lines, pages, copies – can be used without permission. The Fair Use Index is designed to be user-friendly. For each decision, we provided a brief summary of the facts, the relevant question(s) asked, and the court`s decision as to whether the disputed use was fair. You can search all cases, search for cases that relate to specific topics or categories of work, or review cases from specific courts. The index usually reflects only the highest court decision in a case. The opinions of the court themselves are not included. However, we have provided the full legal citation so that those who want to read the actual decisions can access it via free online resources (such as Google Scholar and Justia), commercial databases (such as Westlaw and LEXIS) or the federal courts` PACER e-filing system available at www.pacer.gov. The impact on the market can be more complicated than the other three factors. Basically, this factor means that while you could have realistically purchased or licensed the copyrighted work, this fact weighs against a fair dealing determination.
To assess this factor, you may need to conduct a simple market study to determine whether the work is reasonably available for purchase or licensure. A work may reasonably be available if you use a large portion of a book that is for sale at a typical market price. The “effect” is also closely related to the “goal”. If your goal is research or science, it can be difficult to prove the effect on the market. If your goal is commercial, it may be easier to prove the negative impacts on the market. Occasional quotations or photocopies may not have a detrimental effect on the market, but reproductions of software works and entire videos may directly enter potential markets for such works. If you have determined that the use you wish to make is not fair use, you must ask the copyright owner for permission. For more information and examples of request letters, see the section on applying for permission to use copyrighted material. Another important fair dealing factor is whether your use deprives the copyright owner of revenue or undermines a new or potential market for the copyrighted work. Depriving a copyright holder of revenue is very likely to trigger a lawsuit. This is true even if you do not compete directly with the original work.
Dishes also prefer uses that are “transformative” or that are not just reproductions. Fair dealing is more likely to be found when the copyrighted work is “transformed” into something new or a new use or meaning, such as quotes incorporated into an article, or perhaps parts of a work mixed with a multimedia product for your own teaching purposes or included in comments or reviews of the original. Fair use is a legal doctrine that promotes freedom of expression by encouraging the unlicensed use of copyrighted works in certain circumstances. Section 107 of the Copyright Act provides the legal framework for determining whether something constitutes fair use and identifies certain types of uses – such as criticism, commentary, media coverage, teaching, science and research – as examples of activities that can be considered fair use. Article 107 requires that the following four factors be taken into account when assessing a fair dealing issue: The same fair dealing provisions that protect the use of quotations and extracts in scientific literature also protect such uses in scientific submissions. You may be able to include copyrighted text, images, or videos in your presentation slides. In a 1994 case, the Supreme Court emphasized that this first factor was an important indicator of fair use. It`s about whether the material was used to create something new, or whether it was literally copied into another work. If you include parts of copyrighted works, ask yourself the following questions: We hope you find the Fair Use Index a useful resource. However, if you are wondering if a particular use is fair or if you believe that someone has made unauthorized use of a copyrighted work in a way that is not fair, it is best to consult a lawyer. Unless you created the work as part of your work as an employee or under contract as an ordered work, you are the author and original copyright owner.