What does current law allow?

What is Fair Use?fairuse.jpg

Fair use, according to Stanford Law, is the use or copying of copyrighted material for limited and "transformative" purpose. For example, a person could comment on, criticize or parody a copyrighted work. These uses do not require permission from the copyright owner. Fair use is not an infringement of copyright. The problem of determining what is fair use is caused by the wording of the definition. The word "transformative" is open to interpretation. Millions of dollars in legal fees are spent every year to determine what is and is not fair use.
Most fair use fits under either criticism or parody:

1. Comment and Criticism

Fair use principles allow users to reproduce some of the work for comment or criticism.
Some examples of commentary include:
  • quoting a few lines from a song in a music review
  • summarizing and quoting from an article on a specific subject in a news report
  • copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
  • copying a portion of a magazine article for use in a related court case.

2. Parody

Parody is a work that uses humour and imitation to make fun of, usually well-known work. Parody by its nature requires using some of the original work. In parody a fairly large part of the original work is permitted. (Stanford, Chapter 9)

To learn more about fair use see Six Resources for Learning about Fair Use
For information about fair use in scholarly research see Code of best practices in fair use for scholarly research in communications (2010), Center for Social Media or download the Code of Best Practices in in Fair Use for Scholarly Research in Communication PDF here

According to Sarah Perez in her July 26, 2010 article "Fair Use Legalized, Says EFF" new exemptions have been included in the Digital Millennium Copyright Act.

From the article:
"Exemptions include the following:
  • Permission for cell phone owners to break access controls on their phones in order to switch wireless carriers or "jailbreak" their device
  • Permission to break technical protections on video games to investigate or correct security flaws
  • Permission for college professors, film students and documentary filmmakers to break copy-protection measures on DVDs so they can embed clips for educational purposes, criticism, commentary and noncommercial videos
  • Permission to enable an e-book's read-aloud function or use a screen reader with the e-book, even when built-in access controls prevent this
  • Permission for computer owners to bypass the need for external security devices called dongles if the dongle no longer works and cannot be replaced" (Read Write Web article)

Point 3 sounds like a welcome addition!

Watch Fair Use in Action: A Fair(y) Use Tale

The video, A Fair(y) Use Tale, uses Disney characters to humorously explain copyright. The use of Disney characters is ironic, as Disney has been a vocal opponent of openness and their history contains much appropriation of previous culture without attribution. The character Mickey Mouse who first appeared in 1928 in "SteamBoat Willy" was a direct take-off of Buster Keaton's, "Steamboat Bill" from earlier in the same year and a great many of their characters come from the Brothers Grimm.

The video "A Fair(y) Use Tale" comes out of Stanford University’s Fair Use Project that supports projects that clarify, and extend, the boundaries of fair use and enhance creative freedom. According to Mat Honan of Wired, "The mashup cuts up and splices audio from more Disney movies than I could begin to list (or even identify) to explain the intricacies of copyright law and the fair use doctrine. It takes the works of “the very folks we can thank for nearly endless copyright terms” and flips them to argue against longer copyrights and attacks on fair use. It leads to some beautifully surreal moments, often highly recursive, with the characters of The Jungle Book and The Lion King asking questions such as 'what is the public domain?' or proclaiming 'fair Use is not a right; fair use is only a legally defensible position, and this is not fair…The point is if fair use actually works then movies like this one will have legal protection.' Word." (Honan, 2007)

For a good book on the Public Domain and intellectual property rights, see the online book The public domain: Enclosing the commons of the mind. Boyle, J. (2008)

Next up: Teaching Copyright