I’ve been reading up on the concept of Fair Use as a means of protecting bloggers from accusations of copyright infringement. Several non-profit websites whose purpose is to provide access to copyrighted news articles have come up with an interesting and innovative understanding of Fair Use as a strong defense against a charge of infringement.
The Global Policy Forum and Common Dreams republish copyrighted news stories that are relevant to their respective missions. They post the articles in their entirety without seeking permission of the copyright holder. To see an example of their approach in action, take a look at Israel Announces Official Decision to Remove Arafat on the Global Policy website; or From His First Day in Office, Bush Was Ousting Aristide at Commondreams.org. You will notice a Fair Use Notice which states:
FAIR USE NOTICE
This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, etc. We believe this constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use’, you must obtain permission from the copyright owner.
In my recent thinking about Fair Use, I saw it as providing limited protection because I understood it to apply only in cases where a scholar, educator or researcher quoted a very limited amount of a copyrighted text. Since I and many of us quote more extensively from such works, it seemed like Fair Use wouldn’t provide much help.
But Lloyd Rich, a Denver intellectual property attorney who maintains the Publishing Law Center website writes intriguingly in How Much of Someone Else’s Work May I Use Without Asking Permission?: The Fair Use Doctrine, Part I that word count is a poor way of understanding Fair Use. In some instances, a judge might find that publishing an entire copyrighted article (as do Common Dreams and Global Policy Forum) falls squarely within Fair Use and in other cases quoting an extremely modest amount of a copyrighted work may not be protected by Fair Use. It all depends on the circumstances surrounding use of the copyrighted materials.
Four “fair use factors” need to be analyzed in order to determine whether use of a copyrighted work is Fair Use:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.”
The first criteria provides stronger protection for derived works which are created for non-profit purposes. The second criteria
looks to see if the new work is for one of the purposes specifically contemplated by the fair use — (1) criticism and comment, (2) parody and satire, (3) scholarship and research, (4) news reporting and (5) teaching. The burden of proving fair use is somewhat easier to demonstrate if the new work is for one of these purposes.
The third criteria evaluates the degree of transformation accomplished by the new work, e.g., is the transformative purpose of the new work for comment, criticism, or parody of the copyrighted work. In other words, does the new work merely supplant the original, or does it add something entirely new to it? Does the new work have a different purpose or different character than the copyrighted work? The crucial factor is whether the new work alters the copyrighted work by adding new expression, meaning or message to the copyrighted work.
The scope of fair use is greater when an “informational” work – a work of facts or information, a work of scholarship or of news reporting — as opposed to a more “creative” work — a work of fiction — is involved or when a work is designed to inform or educate rather than entertain.
And under the fourth criteria:
those who wish to use another’s copyrighted materials without permission must decide whether or not their utilization of the copyrighted material is going to harm either the present or potential market for the copyrighted work.
Rich outlines four different cases in which Fair Use was invoked by defendants as a defense against an infringement claim in Fair Use: Interpretations and Guidelines – The Fair Use Doctrine Part II. Very informative reading.
In conclusion, I would suggest that if your blog like mine uses copyrighted material (especially news sources) to engage in important discussions about the issues of the day, then there’s a pretty good bet that Fair Use provides a strong defense. Why do I say this (at least in the case of my own blog)?
1. I quote from news article which are fact-based and not (except in a few instances) “creative works” like novels, poems or other works of art.
2. While I quote extensively from some articles, I almost never quote an entire article (& in the few cases where I’ve done this I will shortly be removing those items).
3. My blog is non-commercial.
4. I am not in any way hindering the copyright owner’s efforts to benefit financially from his or her asset.
5. I give full attribution in hyperlinks to the original copyrighted article or image (at least when I can verify such information).
6. My blog’s purpose is to educate my readers about important artistic, cultural, political and scientific issues of the day. Toward that purpose I engage in scholarly research while preparing my posts.
But as anyone who’s familiar with this somewhat ill-defined part of the law knows, copyright infringement is all in the eye of the beholder–in this case a judge. It’s up to him or her to determine, based on the infinite variety of the facts of the particular case, whether a violation occurred. And the only way to determine whether this view of Fair Use is valid is to go to court and prove it, an experience no one welcomes. But as Knownot, a legal correspondent who has taught me much about copyright law as it impacts bloggers, says: if you adhere to a principle you believe is important, the only way to show you really value it is by testing its mettle in a crisis–in this case an accusation of infringement.