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Fair Use and Copyright

What is fair use of copyright?


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  The development of copyright and fair use


Though copyright and fair use can feel like modern concepts, their development stretches back hundreds or even thousands of years.  Precursors to modern copyright concepts existed in ancient Roman and Jewish law, and in the 6th century we can find the first recorded legal case surrounding the right to copy. “To every cow belongs her calf, therefore to every book belongs its copy,” ruled Irish king Diarmait at the time.  According to some historians battle was fought over the matter shortly after.

It was eventually technology, not bloodshed, that settled the matter of copyright.  The invention of the printing press in the 15th century made copying trivial and profitable. A printing “menace” began: publishers’ only option to constantly publish new content, as their works were cloned shortly after release.  It was during this period that the term patent originated, coming from ‘letters patent’ that a monarch or government created that gave a publisher an absolute monopoly or right to publish a work.

It wasn’t until shortly after the English and Scottish parliaments united in 1710 that the world got its first copyright statute, the Statute of Anne.  It’s this statute, also known as the Copyright Act, that established modern concepts such as public domain and a copyright register.  Thirty years later, after a legal battle, the doctrine of “fair abridgement”, which the US would later develop into the fair use doctrine, was established.

In 1886 the first large-scale international copyright agreement was signed – the Berne Convention.  The established the philosophy that works do not need to be declared.  Signatories also agreed that foreign authors or artists would be treated the same as domestic ones regarding copyright.  In 1995, the Berne Convention was integrated into the WTO’s TRIPS agreement, of which only a handful of countries are not signatories.

For a detailed overview of copyright and copyright protection see – what is copyright?

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   What is fair use and copyright?


Modern copyright laws seek to protect the profits of artists and publishers without significantly impacting citizen’s rights to free and creative expression. As a result, while the basic principle is that a creator should have the exclusive rights to copy, distribute, adapt, and perform their work, there are exceptions to this (fair use). Without these exceptions, publishers in the early days may have quickly gained a monopoly over information, and authors would be able to shut down any direct critique of their work (nobody would be able to quote it).

When ruling on a copyright lawsuit, judges must decide whether use of a work can be considered “fair use”.

  What are the 4 fair use exceptions to copyright?


Fair use in copyright is a set of guidelines that help judges decide whether the use of a work is permissible due to its importance to democracy or creativity. The four main fair use factors are:

  1. Purpose and character of the use:  Is the work being used for parodic, critical, or nonprofit educational purposes?  How much has the work been transformed when compared to the original and does it have the same purpose or character?  More transformative uses are more likely to be considered fair use.  Use with a commercial nature is less likely to lead to a finding of fair use.
  2. Nature of the copyrighted work:  Is it a highly creative work or more factual (i.e. a technical article or news reporting)?  Is the work published or not?  Use of more creative and unpublished works are less likely to be fair use.  Primarily factual works are typically seen as fair use because spreading the information benefits the public.
  3. Amount and substantiality:  How much of the work has been used?  Is the excerpt used a core part of the text/image?  What is the substantiality of the portion?  Use of a small amount of a work is much more likely to be considered fair, unless those parts are considered to be the “heart” of the work.
  4. Effect of the use:  Judges must consider whether the use of the content negatively affects the value of the copyrighted work and whether widespread use in this manner would harm the market or a potential market.

Fair use factors are examined as a whole rather than as a checklist and are examined on a case-by-case basis.  For example, somebody may lose a copyright lawsuit because although they have only used a small part of a work, it highly and intentionally impacts the value of the original.  Typically, however, it is the first and last factors that most influence a judge’s decision.

   Fair use examples


A better understanding of fair use can be gained by looking at some of the more prolific court cases in its history.

Bloomberg v Swatch

In 2014, Swatch Group Services Ltd, a logistics and IT company, opened a copyright infringement case against Bloomberg news.  The case related to the publication of a sound recording without authorization of a conference call with financial analysts discussing Swatch’s most recent earnings report.

In this case, the recording transcript was distributed in full without change and could reasonably impact the value of the company.  Additionally, as a subscription publication, it could be claimed that Bloomberg’s news reporting led to profit for the publication.  You might then think that this is a clear case of infringement.  However, a finding of fair use was found due to several factors.

First factor of fair use:

  • The publication of the call transcript served an important purpose in informing the public.
  • Bloomberg’s intent wasn’t to supplant the company’s right of first publication.

Second factor of fair use:

  • There was very little in the recording that could be considered copyrightable.

Third factor of fair use:

  • Using the entire recording was necessary.

Fourth factor of fair use:

  • Any harm to the company’s stock price would not be due to infringement on its copyright, but rather the public being more informed about the company’s finances.  The publication would not harm the value of earnings call as a whole or alter incentives for the creation of earnings calls.
  • Publication is mandatory anyway because it is in the public interest.
Castle Rock Entertainment, Inc. v. Carol Publ. Group

This court case involved the TV show Seinfeld and the publisher of a Seinfeld trivia book.  Questions were naturally based on events and characters of the show, with various direct quotes used.

You could argue that the book is transformative as it only uses short excerpts from the show in a different medium.  Dialogue quotes on trivia cards are clearly not a replacement for the Seinfeld show itself and are not the “heart” of the show.

Even so, the ruling was found to be not fair use of copyrighted material.  The trivia book was clearly published for personal financial gain to entertain an audience (first factor). It also used quotes without commentary or analysis (third factor) and the court found that the use could have a potential effect on the market for Seinfeld books (fourth factor).

   Fair use internationally


According to the American University Program’s Infojustice, around forty countries have adopted fair use or fair dealing provisions in their copyright laws.  These countries represent around a third of the population.

That said, a mention of fair use or fair dealing in a law does not mean that it has been implemented in the same way as the US system.  In some, fair use is very limited, while in others it is broader.  In 2009 in Israel, for example, a court ruled that unlicensed sport event streaming to the internet falls under fair use.  This is at odds with recent crackdowns on IPTV piracy in Europe.

   How does fair use work in practice?

  The difficulty of international fair use and copyright

As mentioned previously, most of the world is a signatory to some kind of international copyright agreement.  However, this may paint a rosier picture than the reality.  Copyright and fair use internationally is still fragmented.  Some countries have not signed the latest agreements (i.e. DMCA), or have different implementations of fair use and copyright.  Meanwhile, the countries that do not seem to care about copyright can have a major impact.

Why should this matter to you?  Well, anyone doing business over the internet selling copyrighted works is affected by international copyright whether they like it or not.  Pirates can quite easily publish copyrighted content on a server located in countries with less restrictive copyright laws.  Once it is out there, there is little incentive for the country to remove it.  Though access to websites can be blocked via DMCA notices to ISPs, this is a cat a mouse game and these restrictions can ultimately be bypassed using a VPN.  See what is DMCA and why it is not effective.

In other words, while copyright and fair use laws can be useful in some cases, the rights to a work do very little to prevent it from being copied and distributed without your permission.  You can add a copyright symbol and disclaimer to your PowerPoint slides or copyright a document in Word, for example, but it’s likely it’ll just be ignored and can be easily removed.  If copyright notices were an effective way of preventing unauthorized distribution, piracy would be virtually non-existent.

The reality is that if you are an individual trader or a small business then it is very difficult for you to rely upon fair use and copyright law to protect your IPR.  Only large companies can really afford to litigate to enforce their rights.  You may like to read the following article that points out some of the myths and practical realities of copyright and copyright enforcement:  Copyright myths – 10 big myths about copyright explained.

  Fair use disclaimers


If you have used copyrighted material without permission on your website or in a publication, it doesn’t hurt to add a fair use disclaimer.  This acknowledges that you have used copyrighted material in a manner consistent with fair use.  Typically, a fair use disclaimer:

  • Acknowledges that there is content in your site/publication/video that the original creator may not have authorized you to use.
  • Explains that this content is used legally, under fair principles, and links to Section 107 of the Copyright Act.

That said, it is important to recognize fair use disclaimers for YouTube, blog posts, an ebook, etc. will not necessarily help you in court.  Claiming that something is fair use does not make it so – it is up to the courts to decide if it is challenged.  The primary purpose of a fair use disclaimer is to:

  1. Demonstrate that you have some understanding of copyright law.
  2. Prevent the public from mass reporting your content as copyright infringement.
  3. Allow the original author of the content to consider the principles of fair use should they come across the content.

In practice, throwing a fair use disclaimer on content that is clearly not fair use may even count against you.  You are then demonstrating that you are aware of copyright law and fair use concepts but are violating them anyway.

  Safeguarding copyright with DRM

As evidenced by the rampant piracy and re-sharing on internet sites, fair use and copyright laws are not a strong deterrent or protection against infringement.  Though copyright regulation has come a long way, it is not fast enough nor widespread enough to keep up with the challenges of the global internet.  Preventing your work from being shared in the first place is the only effective way to protect your copyright and copyrighted material.  And the way to do that is through Digital Rights Management (DRM).

Digital Rights Management solutions are designed to prevent the mass sharing of digital content via the internet, USB transfer, or any other method.  There are variety of DRM systems for different filetypes, with varying degrees of effectiveness.  These include:

  • Games:  Denuvo, Steam, VM protect, SecuROM
  • Video:  Widevine, FairPlay, PlayReady
  • Audio:  FairPlay, Spotify, YouTube Music
  • Ebooks:  Kindle DRM, Nook, Adobe, FairPlay, Locklizard Safeguard

Any DRM solution must balance its ability to prevent sharing with usability, accessibility, and fair use.  DRM software that is so restrictive that it significantly impairs normal functioning or prevents fair use is likely to have a significant negative impact on sales.  However, a DRM system that is too lax (i.e. Adobe DRM, Steam, Kindle, Spotify) will do very little to prevent piracy.  It only takes one person stripping DRM from a file and uploading it to a file sharing site for it to be available to everyone.  In some file formats, this balance is more easily achieved than others.

   Why use Locklizard to protect your copyright?

  • No Passwords

    There are no passwords or codes for users to enter, so they cannot be shared.  Keys are transparently and securely transferred to authorized devices and locked to those devices.

    Unlike secure deal rooms, users cannot share access information, and therefore your ‘protected’ documents with others.

    Having no passwords also solves the password  management headache – Locklizard securely and transparently delivers document keys to a secure keystore locked to each device.

  • Secure Distribution

    Full control over document distribution:

    • Protect documents on your local computer – no uploading of unprotected files to a server where they could be exposed to attack.  You retain full control over unprotected documents and ensure they can never be exposed to the wrong people.
    • Distribute secure documents just like any other file – upload them to a cloud server, your website, send by email or distribute on a USB, etc.
    • You are not forced to use yet another system where you have to manage user passwords or use a fixed document structure for displaying your protected documents – easily integrate protected documents with your existing systems and automate document protection and administration.

  • DRM Controls

    A wide range of digital rights management controls to ensure documents cannot be copied or shared and you retain full control over them at all times.

    • Block screenshots – stops users from taking high-quality screen grabs using screen grabbing tools.  Cloud-hosted secure dealing room systems CANNOT stop screen grabbing because they do not install any software on the client device.
    • Disable printing (or limit the number of prints).  If printing is allowed, then we automatically prevent printing to file drivers (e.g. PDF files)– this is NOT possible to prevent with cloud-hosted secure dealing room systems.
    • Expire documents after a number of days use, views, prints, or on a fixed date.
    • Revoke documents and user access instantly (regardless of where they are located).
    • Track how documents are used by whom and when – know who you are actually tracking compared to shared emails and IP addresses.
    • Allow offline use with full protection– no forcing of users to be online to view protected documents.

  • Device & location locking

    Control the devices and locations your protected documents can be accessed from.

    • Automatically locks document use to authorized devices to prevent sharing.
    • Control the number of devices for each user that your protected documents can be used on.
    • Lock use to locations to control where your protected documents can be used from (e.g. office only).  This enables you to easily control BYOD use since documents on a mobile device will be available for use in the office but not when taken home.

  • Dynamic Watermarks

    Add dynamic watermarks to viewed and/or printed pages.  Dynamic variables are replaced by user data at print/view time.

    You only have to protect a document once for all users rather than having to protect documents individually for each user in order to display unique user information (name, email, etc.).

  • Secure Viewers

    • Installed Viewers provide stronger security than cloud-based systems – no uncontrolled browser environment where users can easily circumvent security controls.
    • We don’t expose user’s systems to attack by forcing users to enable JavaScript or turn off security functionality in Adobe Acrobat or other applications.
    • We don’t use or allow plugins since they easily break and can be used to bypass security.
    • No decrypting of files on a server or use of temporary files – documents are decrypted locally by the Viewer in memory so they cannot be compromised.
    • Unlike slow browser environments, large and complex documents are displayed instantly with fast scrolling and search.
    • You can also publish documents securely for zero installation viewing on USB devices (totally offline) or viewing in a Browser.
    • DRM controls are always enforced for both online and offline documents regardless of their location.

  • Simple to use

    Our document security software is simple to use:

    1. Secure documents by right clicking on them in Windows Explorer.
    2. You only have to protect a document once for all users to control individual expiry access etc.
    3. Manage users and document access via our web-based administration system.
    4. Automate document protection, and automate administration (user management and document access) with our command line and API tools.
    5. Once users have clicked on a link to activate their license they don’t need to do anything else (i.e. enter a password, login, etc.) to open documents that they have been authorized to view.

  • Cost Savings

    • No charges per document or user – just a one off fee for unlimited documents and users.
    • Perpetual licenses save thousands – 3 year use would be a $11,800 saving compared to a $500 monthly fee.
    • Host on premise in your own environment or use our ready-to-go AWS hosted systems.

Locklizard Safeguard allows you to protect your intellectual property from unauthorized sharing and reproduction without severely hampering usability.  The user does not need to always have an internet connection and readability is not affected.  After taking a minute to install their viewer application and activate their license, they can view any protected PDF you grant them access to by double-clicking on it.

To see why Locklizard is the best way to protect your copyrighted PDF files, take a 15-day free trial of our PDF DRM software.

    FAQs

Are screenshots fair use?

This naturally depends on what the screenshot is and how it is being used.  If somebody takes a screenshot of somebody’s artwork, ebook or other copyrighted material and posts it as is with no commentary, fair use is unlikely to be found.  However, generally screenshots are usually classed as fair use as they are quite often used for commentary or critique.*  With Locklizard Safeguard, users can only take screenshots of copyrighted material if you allow them to.

What is the fair use act?

There is no singular fair use act.  Fair use was a common law doctrine up until 1964 when it was bundled into Copyright Act of 1964 and became statutory law.

What can students use under fair use?

This is determined the four factors listed in the “What is fair use” section above just like it is for any other person.  Generally, educational use favors a fair use ruling, but a court can still rule against fair use if large portions of work are used, it is being used for commercial gain or entertainment, it could replace a sale of the work, etc.*

Are song covers fair use?

Most song covers are not usually in favor of fair use as they are not transformative enough.  This is particularly true if the content is monetized, either by advertising revenue or through the sale of tracks.  However, this does not necessarily mean that any cover song is illegal.  Some platforms, such as YouTube, have signed deals with large music publishers to allow the use of songs for cover in return for 50% of the advertising revenue.  In other cases, the cover artist may have the copyright owner’s permission.*

Are remixes fair use?

In short, “it depends”.  A remix might be considered transformative if it incorporates and alters part of an original work.  However, the other aspects of fair use still need to be considered: does it affect the market for the original, was it created for commercial reasons, how much does it use, etc.  The truth is that there is still uncertainty surrounding the legality of remixes and the guidance available to remixers is limited.*

Are memes fair use?

Like all fair use cases, whether a meme is fair use depends on the circumstances surrounding it.  Memes can fall under fair use even if they use copyrighted material if they are sufficiently transformative or parodic and it is clear that the poster is not trying to profit from the post.  However, minimal transformation (i.e. adding a caption on top of somebody else’s photo) could be considered infringement, particularly if it could negative impact the sales of the original image.

Additionally, selling meme-related merchandise with a copyrighted image without a license is very likely to be ruled not fair use.  This has been tested in court in the case of Grumpy Cat Ltd v Grenade Beverage LLC.  The drink maker, which had previously worked with Grumpty Cat Ltd on a range of iced coffee, was ordered to pay out $710,000 when it started selling unlicensed t-shirts and roasted coffee.  The reality is that few copyright holders pursue legal action unless the infringer is making a profit from it.*

Can EULA trump fair use?

This is something that is still hotly debated and has conflicting rulings.  The only answer we can really give is: maybe.  In Bowers v. Baystate Technologies, a judge ruled that EULA provisions can trump the right to the reverse engineering of software under fair use.  However, the enforceability of EULAs in general can vary dramatically based on the court the case is heard in, the wording of the EULA, the reason for the use, etc.*

Are parodies fair use?

Most legitimate parodies (note: this is different from satire) are in favor of fair use, as mimicking the original work is necessary to create this form of criticism of it.  However, parodies still need to go through the four-factor fair use analysis presented above.  If the parody does not add enough new or original elements to the work it is parodying, or is deemed primarily an excuse for a commercial venture rather than a critique, it may not be considered fair use.*

What is fair use doctrine?

The fair use doctrine in US law is a framework that can be utilized in deciding whether or not use of a copyrighted work is legal.

How much of a copyrighted material can be used under fair use?

There are no hard and fast rules surrounding how much of a work you can use under fair use.  Though you may find guidelines from various institutions, the truth is that how much you can get away with using depends on other fair use factors.  For example, if you used a tiny portion of a work, but it was considered its “core”, was not transformative, and was not used in an educational setting, it may still be considered infringement.  If you used a larger portion but it was highly transformative, used for critique, and was not for profit, then it could result in a finding of fair use.  Generally, of course, you should not be using large portions of a work.  If you are using more than 40% of a work (for example) then it is much more likely to serve the same purpose as the original and therefore not be fair use.*

What is the safest way to make sure you are using a copyrighted image fairly?

The only foolproof way to avoid copyright infringement on images is to reach out to the copyright owner and license the work.  Alternatively, stick to CC0 images, which allow you to freely copy, modify, adapt, distribute and perform the work, even for commercial purposes.*

If I have used copyrighted material on my site do I need to add a fair use disclaimer?

It would be wise to do so to acknowledge your use of someone else’s copyright works and how the conditions you have used it under pertain to fair use.  See the section on fair use disclaimers for more info.

Is creative commons the same as fair use?

No.  Creative Commons (CC) is a type of license that allows content to be shared without additional permission from the publisher or fees.  Depending on the type of license, users may also be free to remix or profit commercially from the work.  Creative Commons licenses are entirely separate from fair use and explicitly do not affect fair use exceptions:

“If your use of CC-licensed material would otherwise be allowed because of an applicable exception or limitation, you do not need to rely on the CC license or comply with its terms and conditions,” states the Creative Commons organization.

*This information does not, and is not intended to constitute legal advice.  Though we have researched to the best of our ability, the legal landscape changes quickly and experts can have varying opinions on fair use and copyright law.  Speak to a legal professional if you require advice on a legal matter.

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