What Does “Fair Use” Mean?

While copyright law seeks to define the rights of authors, creators and publishers, certain limitations apply to these rights. Of these limitations, one of the most important is the fair use doctrine. This doctrine, which was established on judicial precedents and decisions, allows uses of copyrighted material based on principles gleaned from judicial decisions. It primarily ensures that the use of copyrighted material does not impinge the creator's or publisher's income from the material.

The fair-use concept applies to work ranging from tangibles, such as printed material, to intangibles such as software and electronic data. Although it is based on historical judicial decisions, Section 107 of U.S. copyright law codifies what constitutes fair use and how it is determined.

According to the U.S. Copyright Office, there are four factors that are important in determining fair use cases. These are:

i) The purpose and nature of use, including whether such use is of a commercial nature or is for non-profit educational purposes

ii) The nature of copyrighted work

iii) The amount and substantiality of the portion used in relation to the copyrighted work as a whole

iv) The effect of the use on the potential market for, or value of, the copyrighted work

While all factors have implications for whether use is considered fair, there are extenuating circumstances for each one. For instance, that copyrighted material is used for commercial purposes does not automatically suggest that its use is a copyright infringement. For instance, in a 1992 case (Sega Enterprises, Ltd. v. Accolade, Inc.), the court ruled that Accolade's reverse engineering of Sega's game-machine software was fair because Accolade was not actually selling copies of Sega's games. Accolade was using it for research purposes -- to create new games.

In terms of the nature of copyrighted material, author Sara Baase notes that "Creative work has more protection than factual work." Typically, in fair-use cases, the court takes into account all four factors, but market effect and impact on income typically get more weight than others. Indeed, this was a significant factor in the famous case of Napster, where reduced sales of albums and singles -- attributed to Napster -- played a decisive role in the court's ruling against Napster.

The doctrine of fair use merely offers guidelines about whether it is legal to use copyrighted work. Fair use cases are difficult to predict, since there is no objective determination of the concept. The U.S. Copyright Office recommends that persons seek the permission of the copyright owner. If any doubt lingers, sound legal advice should be sought in cases where permission is difficult to obtain.

Fair uses of copyrighted work include teaching, research, scholarship, news reporting, comment and criticism. It is also held that using copyrighted material privately -- such as copying music for private listening -- also constitutes fair use. Some uses of copyrighted material are copyright infringements; others are clearly not, but many reside in a gray area. Fair-use principles assist with determining how appropriate a particular use might be.