How “Fair” is Fair Use?

 

Copyright, as defined by the Oxford English Dictionary, is the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. It also refers to a particular literary, artistic, or musical work that is covered by copyright. It is illegal to produce copies of copyrighted material. However, the introduction of Fair Use under the US copyright law allows people to use the copyrighted materials under certain circumstances and constraints.

 

Fair Use

 

Under fair use, four factors are taken into consideration:

–          the purpose and nature of the use, whether it is commercial or non-profit educational purposes

–          the nature of the copyrighted work

–          the amount and significance of the portion used as compared to the entire copyrighted work

–          the effect of use on market for or value of copyrighted work

 

Although these four factors may seem substantial enough to justify whether the copyrighted work could be used, the concept of fair use remains to be an ambiguous one.

 

Example

 

A music professor cuts out different pieces of Baroque music on a CD played by a renowned symphony orchestra, pieces them together, and plays the music for her class.

 

Under fair use, we examine if her actions are justifiable. Firstly, the purpose of copying the music was educational. Hence, we can say that it weighs in favor of fair use.

 

Let us now examine the second factor. The nature of the copied work is music, hence this factor weighs against a ruling of fair use.

 

The third factor is the amount of copied material in comparison with the entire music. If she cuts out six out of seven songs in the CD, it is not likely to be justified as fair use. However, if the excerpts she cut are only 2 out of seven songs, it is likely that her actions can be considered as fair use.

 

Lastly, we realize that by cutting out the music and playing the music for her class, she does not jeopardize the commercial value of the CD on market as she is only playing and sharing it to the class for appreciation and teaching purposes. However, if she decides make copies of her edited version of music and gives them out to her students, her actions would weight against a ruling of fair use.

 

Conclusion

 

Using the example, we notice that the actions of the music professor may or may not be classified as fair use, depending on the amount of music copied and whether or not she burned the music into CDs and distributed them to her students. Most importantly, we realize that different people may have different perspectives about her situation and have contrasting opinions as to whether her actions should be considered as fair use or not, hence the four factors of fair use are not comprehensive enough. On one hand, the symphony orchestra might consider her actions as potentially insidious, as her students might want to edit this music and add on to it, claiming that it is used for educational purposes. However, depending on the length of the music and the arrangement of it, it is difficult for us to judge whether the professor’s actions are justified or not. Hence, we realize that the four factors under fair use are just a general guideline and may be assessed differently from different perspectives.

 

References

 

http://www.digitalphotopro.com/business/is-fair-use-really-fair.html

http://www.umuc.edu/library/libhow/copyright.cfm

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.html

http://www.copyright.gov/fls/fl102.html

 

~Yangxi

4 thoughts on “How “Fair” is Fair Use?

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