Fair use

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In copyright law, fair use doctrine refers to a number of laws and court decisions that attempt to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing certain limited uses that might otherwise be considered infringement.

Fair use receives different treatment in different countries, despite the overall harmonization of copyright laws. The current U.S. guidelines are spelled out in 17 USC 107, excerpted here:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints copies of a poem to illustrate a technique will have no problem on all four of the above factors, but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself in non-commercial.

Fair use is an affirmative defense, meaning that a defendant accused of copyright violation bears the burden of proving in court that his copying was fair use, and therefore not infringement. For this reason, publishers frequently make claims of copyright infringement over uses that are clearly covered as fair use, hoping that the user will refrain from the use rather than spending resources in his defense. For example, producers of work that satirizes a copyrighted work are frequently sued for infringement by the targets of their satire, even though such use is protected as fair use. One recent example of this tactic is the suit against the publication of The Wind Done Gone, which is a satire of Gone With the Wind, reusing many of the characters and situations, but telling the events from the point of view of the slaves rather than the slaveholders. On October 10, 2001, the Eleventh Circuit Court of Appeals decided against the owner of GWTW and vacated (http://laws.lp.findlaw.com/11th/0112200opnv2.html) an injunction prohibiting TWDG's publisher from distributing the book. This decision set a precedent that the creation and publication of a carefully-written parody in the United States counts as fair use.

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