Fair Use, a.k.a. How Law Fries My Brain
It's about time I wrote another editorial, and I figure this topic was a valid one as any - it's a topic that affects all bloggers as a whole, the argument about whether or not what we blog about falls under "fair use." It's been brought to my attention recently, because my blog differs from others' in that I not only quote directly from my sources, but I also make use of and edit their images (I take care to upload them to a separate server, though - direct linking is a crime). So that got me thinking about copyrights and whether or not I'm stepping on any legal toes. Anyway, before I go about discussing fair use (as even lawyers themselves dispute over what it really means), let me just put how I understand it on the table. To the best of my knowledge, fair use constitues use of copyrighted material in a non-profit and nondamaging fasion - meaning you don't earn from material you appropriate, nor should your use of it harm the copyright holder in any way. This is the main reason I don't put ads on my site (not that I can, anyway), because I don't see it fair to make money off of other people's work / images, and I want Teknolohiya to be about information, not profit.
To discuss this topic and eventually come to a conclusion as to what is safely considered as fair use, I'm going to be citing the law as it stands in Section 107 of the U.S. Copyright Act, Title 17 of the U.S. Code, along with discussion to better understand the tenets of the law from a secondary resource. Let's start with an introduction:
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
Right off the bat, if you fall under the above categories, you're pretty much safe with invoking the "fair use" argument, or rather, I'm pretty safe, since my blog is about criticism, commentary, news and teaching. There are nuances to these factors, however, so let's take the rest of the law one by one.
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
You're relatively safe so long as the material you use is for nonprofit, educational, or personal purposes. Blogs are a more often than not nonprofit personal media (in my case educational too), so that's a big plus right there. Also, if the character of your use is that of criticism, commentary, newsreporting, parody, and otherwise "transformative use" (the "core" fair uses), then any of these additional core conditions help boster the fair use argument.
2. the nature of the copyrighted work;
So long as what you're using is fact, and is published, then your use leans towards fair. Using copyrighted material that is imaginative or unpublished, though, and you're leaning towards having to ask permission to use the work.
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
This is a little tricky, so I'll let my secondary resource explain it for me:
This factor has its own peculiarities. The general rule holds true (uses on the left [small amount of use] tip the balance in favor of fair use; uses on the right [substantial amount of use] tip the balance in favor of asking for permission), but if the first factor weighed in favor of fair use, you can use more of a work than if it weighed in favor of seeking permission. A nonprofit use of a whole work will weigh somewhat against fair use. A commercial use of a whole work would weigh significantly against fair use.
By now, you should more or less have a general idea on whether your use of material is fair or not; it's important in analyzing in the last factor.
4. the effect of the use upon the potential market for or value of the copyrighted work.
Courts deal with this propensity of the fourth factor to encourage circular reasoning by looking at the first three factors before evaluating the fourth. If the first three factors indicate that the use is likely fair, courts will not permit the fourth factor to convert an otherwise fair use to an infringing one. On the other hand, if the first three factors indicate that the use is likely not fair, courts are willing to consider lost revenues under the fourth factor. In this case they do not have to assume the conclusion in order to reach it. They reach the conclusion based on good evidence that the use is not fair. This means that if a use is tipping the balance in favor of fair use after the first three factors, the fourth factor should not affect the results, even if there is a market for permissions, even if the owner would lose money because of the use.
To put a long story short, if your use is defined fair after the first three factors, then the fourth is negligible - otherwise, it will be used to determine damages to the offended copyright holder.
The Copyright Office website also offers a lot of additional information to help understand the law better; it offers some examples as to what courts have regarded as fair use: "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report [I think I fall under this category]; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
The bottom line is, it's still the best course of action to ask permission before using any copyrighted material. In most cases though, my above definition holds true, especially for bloggers. Keep it nonprofit, cite your sources, and make sure you're not explicitly going against the wishes of the copyright holder, and you're pretty much playing fair. Due to the vagueness of the law, however, and the uncountable ways with which it can and is interpreted, a good choice of action would be to consult your attorney if you have any additional concerns.
Fair Use [U.S. Copyright Office]
Fair Use of Copyrighted Materials [University of Texas System]
To discuss this topic and eventually come to a conclusion as to what is safely considered as fair use, I'm going to be citing the law as it stands in Section 107 of the U.S. Copyright Act, Title 17 of the U.S. Code, along with discussion to better understand the tenets of the law from a secondary resource. Let's start with an introduction:
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
Right off the bat, if you fall under the above categories, you're pretty much safe with invoking the "fair use" argument, or rather, I'm pretty safe, since my blog is about criticism, commentary, news and teaching. There are nuances to these factors, however, so let's take the rest of the law one by one.
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
You're relatively safe so long as the material you use is for nonprofit, educational, or personal purposes. Blogs are a more often than not nonprofit personal media (in my case educational too), so that's a big plus right there. Also, if the character of your use is that of criticism, commentary, newsreporting, parody, and otherwise "transformative use" (the "core" fair uses), then any of these additional core conditions help boster the fair use argument.
2. the nature of the copyrighted work;
So long as what you're using is fact, and is published, then your use leans towards fair. Using copyrighted material that is imaginative or unpublished, though, and you're leaning towards having to ask permission to use the work.
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
This is a little tricky, so I'll let my secondary resource explain it for me:
This factor has its own peculiarities. The general rule holds true (uses on the left [small amount of use] tip the balance in favor of fair use; uses on the right [substantial amount of use] tip the balance in favor of asking for permission), but if the first factor weighed in favor of fair use, you can use more of a work than if it weighed in favor of seeking permission. A nonprofit use of a whole work will weigh somewhat against fair use. A commercial use of a whole work would weigh significantly against fair use.
By now, you should more or less have a general idea on whether your use of material is fair or not; it's important in analyzing in the last factor.
4. the effect of the use upon the potential market for or value of the copyrighted work.
Courts deal with this propensity of the fourth factor to encourage circular reasoning by looking at the first three factors before evaluating the fourth. If the first three factors indicate that the use is likely fair, courts will not permit the fourth factor to convert an otherwise fair use to an infringing one. On the other hand, if the first three factors indicate that the use is likely not fair, courts are willing to consider lost revenues under the fourth factor. In this case they do not have to assume the conclusion in order to reach it. They reach the conclusion based on good evidence that the use is not fair. This means that if a use is tipping the balance in favor of fair use after the first three factors, the fourth factor should not affect the results, even if there is a market for permissions, even if the owner would lose money because of the use.
To put a long story short, if your use is defined fair after the first three factors, then the fourth is negligible - otherwise, it will be used to determine damages to the offended copyright holder.
The Copyright Office website also offers a lot of additional information to help understand the law better; it offers some examples as to what courts have regarded as fair use: "quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report [I think I fall under this category]; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
The bottom line is, it's still the best course of action to ask permission before using any copyrighted material. In most cases though, my above definition holds true, especially for bloggers. Keep it nonprofit, cite your sources, and make sure you're not explicitly going against the wishes of the copyright holder, and you're pretty much playing fair. Due to the vagueness of the law, however, and the uncountable ways with which it can and is interpreted, a good choice of action would be to consult your attorney if you have any additional concerns.
Fair Use [U.S. Copyright Office]
Fair Use of Copyrighted Materials [University of Texas System]