What is "Fair Use?"

Intellectual property is a right recognized not only by the United States government but also through international law. The ability to maintain the exclusive rights to use and control the use of intellectual property is both an important source of pride for authors and artists, as well as a potential source of income through monetization. However, forbidding anyone from using any portion of a piece of intellectual property for any reason at all is not conducive to a smoothly-functioning society, and the Constitution preserves ten limitations on the Copyright Act which are designed to maintain full First Amendment rights. Let’s take a closer look at “fair use” and learn why it could be important when you plan on copying a document.

The Fair Use Statute

Whenever a piece of intellectual property is produced, both the producer and society as a whole have an interest in the ability to use that particular piece of property for various reasons. While the property owner doesn’t want to see their work stolen or appropriated without adequate recompense, society as a whole does not want to have to pay to use the piece for their own means that would otherwise be protected by the First Amendment. Thus, over years of litigation and arguments from both sides, the courts developed the principal of “Fair Use,” which is now inscribed in law via the Copyright Act.

Fair Use essentially dictates that there are a limited number of circumstances in which an individual can legally copy a portion of an intellectual work and use it for their own purposes. There are four fundamentally protected instances which are protected by fair use: criticism, news reporting, teaching, and research.

However, there’s more to the doctrine than just those four purposes. In determining whether a particular use is “fair,” the court will take a few other things into account. First, is the use of a particular piece of intellectual property intended to be non-profit and educational, or does the user intend to use the intellectual property in any part in an attempt to make a profit? If money will be made off the property, odds are it will not be protected by fair use. The courts will also look at how much of the work is being appropriated through the use. For example quoting a newspaper article while writing for a scholarly journal is generally protected as fair use, provided the journal author cites the original newspaper article. However, a teacher who wishes to use a particular textbook for their class may not simply copy the entire textbook and distribute it to their students since they are appropriating a large portion of the work.

This latter example also shows another factor taken into account by the courts: the effect the appropriated use can have on the value or market for the original work. By copying the information out of a textbook and distributing it to their class, the teacher has substantially weakened the market for purchasing copies of the textbook, potentially costing the author the value of a certain number of copies of that book sold.

Why Is This Important When Copying?

If you plan on making copies of a particular piece of intellectual property and distributing it, it’s important that you know you are doing so under one of these three circumstances:

  • You own the rights to a particular piece of intellectual property, either by creating the property yourself or by purchasing them from the copyright holder
  • You have the express permission of the copyright holder to make the copy and distribute it for your purposes
  • You are making the copy under the terms protected by fair use

In the business world, copies must be made all the time for a variety of reasons, but making copies of something that someone or a company does not have the rights to could result in potentially serious consequences, including fines and reparations to the copyright owner. Be extremely careful when making copies that you plan on distributing; if you don’t own the rights to a particular piece of property, make sure it’s covered under fair use.

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