fair use doctrine in american law

slowly, over some time, i’ve been learning about fair use and the history of copyright law. this is especially interesting in recent time because of digital media, remixing, and projects like the wikipedia with their non-reserved copyrights.

so it’s quite interesting to hear about the current harry potter case in new york. the wall street journal has been following the case, which rapped up arguments yesterday, and blogging about it. we should hear soon whether in that case re-organizing and re-packaging rowling’s work in an encyclopedic fashion will be allowed under fair use.

personally, i think they should be allowed to publish. the suit now is merely about it’s publication in book form, when they were making money off it previously in web site ad form it was not contested. but also because it’s re-organization alone is useful. the structure of a work imparts quite a different usage and value alone. and the only argument that rowlings would be negatively impacted financially is if she published a competing encyclopedia, which she has not. it’s more likely that supplemental material like this would only support and increase sales of her books.

i’m sure there are many misunderstandings about copyright and i have only the most amateur understanding. if you’d like to learn more i recommend perusing the stanford university fair use web site as well as the wikipedia article on the topic.

i’ve included the stanford site summary of fair use (which is reprint of nolo press material) below the fold, as an example of fair use.

the following is copyright 2007 by nolo, used here in a way i believe to be fair use, from their book Getting Permission (October 2007) by Richard Stim. if you’d like to read even more about this concept, i recommend his book highly. i must smirk though at the opportunity to include this summation of fair use as an example of fair use.

[The fair use] rule recognizes that society can often benefit from the unauthorized use of copyrighted materials when the purpose of the use serves the ends of scholarship, education or an informed public. For example, scholars must be free to quote from their research resources in order to comment on the material. To strike a balance between the needs of a public to be well-informed and the rights of copyright owners to profit from their creativity, Congress passed a law authorizing the use of copyrighted materials in certain circumstances deemed to be “fair” — even if the copyright owner doesn’t give permission.

Often, it’s difficult to know whether a court will consider a proposed use to be fair. The fair use statute requires the courts to consider the following questions in deciding this issue:

• Is it a competitive use? (In other words, if the use potentially affects the sales of the copied material, it’s usually not fair.)
  How much material was taken compared to the entire work of which the material was a part? (The more someone takes, the less likely it is that the use is fair.)
• How was the material used? Is it a transformative use? (If the material was used to help create something new it is more likely to be considered a fair use that if it is merely copied verbatim into another work. Criticism, comment, news reporting, research, scholarship and non-profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use).
• As a general rule, if you are using a small portion of somebody else’s work in a non-competitive way and the purpose for your use is to benefit the public, you’re on pretty safe ground. On the other hand, if you take large portions of someone else’s expression for your own purely commercial reasons, the rule usually won’t apply.

so then using this example, is my republication of this small snippet of the book a competitive use? perhaps! i can see how the argument might follow that once you’ve read this snippet you will feel sufficiently informed an no longer desire to purchase the source book. but as a counter i recommend the book and link back to it. it’s probably more likely that you’ll buy the book because i cited it and quoted it. so i think competitive use is not clearly established. then how much is used? well, only a very small portion. significantly less than you can read if you use google’s book reader to access the entire page it occurs on and then further pages. so i think that establishes it squarely as fair. lastly, how is the material used and is that transformative? well, i’m using it in connection with my own creative work commenting upon the rowlings court proceeding. i’m not just copying it with the sole purpose of providing a web page summarizing the same topics that nolo publishes. so i think that the kind of use establishes fair use. but i’m an amateur for sure, not a legal ace, so this is just my opinion. i can see how it’s fuzzy and not well defined: those criterion are up to interpretation yes?

If you're new here, thanks for visiting! Please subscribe to my RSS feed and consider visiting my design-related blog and my meditation-related blog.