Fair Use

Fair Use

Fair Use protects free speech and common-sense uses from the copyright monopoly.

Copyright does not trump free speech, nor a number of common-sense uses of copyrightable material. This is because as a society, we place a greater value on the right to uncensored communication than the monopoly rights of an artist. The concept is codified in Title 17, Sect. 107.

Three common-sense use categories are comment, research, and education. To better explain, let’s consider what would happen if fair use did not exist. After reading the newspaper on the way to work, a co-worker could not talk to you about what he had learned without infringing on the author’s copyright. A researcher would be unable to legally quote his sources, let alone derive new theories from ones previously written. A professor would be unable to legally distribute copies of an article about a new scientific discovery to her students. The lack of protection for these categories furthers the key policy of copyright-dissemination of ideas.

Perhaps more importantly is the fair use category of criticism. Copyright does not trump critical speech. If it did, criticizing a politician’s statement, questioning a report found in a newspaper, or disputing an interpretation of a law would be infringement.

Section 107 provides the standards by which a court can determine if an act is infringement or a fair use. One very important case, Sony Corporation v. Universal City Studios applied these standards and outlined the legal basis for the public’s ability to record television on a VCR. Also called “time-shifting,” it allows one to copy a copyrighted work, in order to view or use it at another time. Another analogous concept is that of “space-shifting” which allows one to transfer a copyrighted work from one medium to another—from a CD to an audio tape, MP3 player, or to another CD. Although “time-shifting” has never been written into law, this concept has not been challenged by a copyright holder.