Fair Use Are sports results protected by copyright

Fair use - Fair use

Exception to the exclusive copyright right granted to the author of a creative work
This article is about fair use for the United States. For information on "fair use" in other countries, see Fair Trade. For information about fair use in trademark law, see Fair Use (U.S. Trademark Law). For information about the broadband bandwidth management policy, see Fair Access Policy.

Fair use is a doctrine in United States law that permits limited use of copyrighted material without first obtaining permission from the copyright owner. Fair use is one of the restrictions imposed by copyright law in order to balance the interests of copyright owners with the public interest in wider distribution and use of creative works by making certain restricted uses in defense of copyright infringement that would otherwise be considered infringement could. In contrast to "fair dealing" rights that exist in most countries with a UK legal history, fair use law is a general exception that applies to all types of uses with all types of works and enables a flexible proportionality test, which examines the purpose of the use, the amount used and the impact of the original work on the market.

The "fair use" doctrine arose in Anglo-American common law in the 18th and 19th centuries to prevent copyright law from being overly enforced and "to suppress the creativity that copyright law seeks to encourage". Although originally a common law doctrine, it was incorporated into law when the United States Congress passed the Copyright Act of 1976. The US Supreme Court has issued several important decisions to clarify and confirm the fair use doctrine since the 1980s, most recently in the decision Google LLC against Oracle America, Inc. the year 2021 .

history

The Anne Statute of 1710, a law of the British Parliament, created copyright to replace a system of private order enforced by the Stationers' Company. The Anne Statute did not provide for lawful unauthorized use of copyrighted material. In the Case Gyles v Wilcox the Federal Chancellery established the "fair reduction" doctrine which, under certain circumstances, allowed unauthorized reduction of copyrighted works. Over time, this doctrine evolved into modern concepts of fair use and fair trade. Fair use was a common law doctrine in the United States until it was incorporated into the Copyright Act of 1976, 17 USC § 107.

The term "fair use" originally came from the United States. Although related, the copyright restrictions and exceptions for teaching and library archiving in the United States are in a different section of the statute. A similar sounding principle, fair dealing, exists in some other common law legal systems, but in fact it is in principle similar to the listed exceptions found in civil law systems. Civil jurisdictions have different limitations and exceptions to copyright.

In response to the supposed over-expansion of copyrights, several electronic civil liberties and expression organizations began adding fair use cases to their files and concerns in the 1990s. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union, the National Coalition Against Censorship, the American Library Association, numerous clinical law school programs, and others. The "Chilling Effects" archive was founded in 2002 as a merger of several law schools and the EFF to document the use of omission letters. In 2006 Stanford University launched an initiative called The Fair Use Project (FUP) to help artists, especially filmmakers, fight lawsuits brought against them by large corporations.

US fair use factors

Examples of fair use in U.S. copyright law include commentary, search engines, criticism, parody, reporting, research, and grants. Fair use is the legal, unlicensed citation or inclusion of copyrighted material in another author's work as part of a four-factor test.

The US Supreme Court has traditionally called fair use an affirmative defense, but in the Lenz v Universal Music Corp. (2015) ("Dance Baby" case), the US Court of Appeals for the Ninth Circuit concluded that fair use is not merely a defense against a breach claim, but was an expressly authorized right and an exception to the exclusive Rights granted to the creator of a creative work by copyright: "Fair use is therefore different from affirmative defense when a use infringes a copyright. However, there is no liability based on a valid excuse, such as abuse of a copyright. "

17 USC § 107

Notwithstanding the provisions of Sections 17 USC Section 106 and 17 USC Section 106A, your fair use of any copyrighted work, including use by reproduction in copies or telephone recordings, or by any other means specified in this section, for purposes such as criticism, comment, reporting, Teaching (including multiple copies for classroom use), grants, or research is not a violation of copyright law. In determining whether the use of a work is fair use in a particular instance, consider the following factors:

  1. The purpose and nature of the use, including whether such use is commercial or for educational non-profit purposes;
  2. the type of copyrighted work;
  3. the amount and materiality of the part used in relation to the copyrighted work as a whole; and
  4. the impact of the use on the potential market or value of the copyrighted work.

The fact that a work is unpublished does not prevent a determination of fair use if such a determination is made taking into account all of the above factors.

The four fair use analytical factors set out above are derived from the statement by Joseph Story in Folsom v. Marsh , in which the defendant copied 353 pages from the plaintiff's 12 volume biography of George Washington to create a separate two-page biography. own volume work. The court denied the defendant's fair use defense with the following statement:

[A] Reviewer can quote from the original to a fairly large extent if his design really and truly is to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is equally clear that when he cites the most important parts of the work like this, not to criticize, but to replace the use of the original work and replace the review for it, such as use is legally considered piracy ...

In short, we often need to ... pay attention to the nature and objects of selections made, the amount and value of the materials used, and the extent to which the use may affect sales or reduce profits or replace the objects that original work.

The above legal fair use factors come from the Copyright Act of 1976, which is codified in 17 USC Section 107. They were intended by Congress to reformulate, but not replace, the law previously enacted by the judge. As Judge Pierre N. Leval wrote, the Statute does not define or explain the contours or objectives of [fair use]. While it "leaves open the possibility that other factors may influence the question, the law does not identify any." This means that the courts are entitled to consider other factors in addition to the four legal factors.

1. Purpose and character of use

The first factor is "the purpose and nature of the use, including whether that use is commercial or for educational nonprofit". To justify its use as fair, it must be shown how it promotes either knowledge or advancement of the arts by adding something new.

In the 1841 copyright case. Folsom v Marsh, Justice Joseph story wrote:

"[A] Reviewer can quote pretty much from the original work if his draft is really and truly intended to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is equally clear that when he cites the most important parts of the Work, not to criticize the use of the original work, but to replace it and replace the review, such use is considered piracy by law. "

An important consideration in later fair use cases is the extent to which the use is made is transformative . In the decision Campbell against Acuff-Rose Music Inc. In 1994 the US Supreme Court ruled that the first factor, if the purpose of use is transformative, increases the likelihood of fair use. Before deciding on Campbell Federal Judge Pierre Leval argued in his 1990 article Toward a Fair Use Standard that transformativity is central to fair use analysis. Blanch v. Koons is another example of a fair use case that focuses on transformativity. In 2006, Jeff Koons used a photo by commercial photographer Andrea Blanch in a collage painting. Koons took on a central part of an advertisement she was supposed to shoot for a magazine. Koons caught on in part because its use was found transformative under the first fair use factor.

The Campbell Fall also looked at the sub-factor mentioned in the quote above, "whether such use is commercial or educational." In a previous case Sony Corp. of America v Universal City Studios, Inc. , the Supreme Court ruled that "any commercial use of copyrighted material is believed to be ... unfair". In the Campbell case the court clarified that this is not a "hard presumption of evidence" and that even the tendency for commercial purpose to "weigh against a determination of fair use ... will vary by context". The court in Campbell decided that the hip hop group 2 Live Crew's parody of the song "Oh, Pretty Woman" was being used fairly, even though the parody was selling for a profit. A commercial purpose therefore does not preclude its use being found fair, although this reduces the likelihood.

Likewise, the non-commercial purpose of a use makes it more likely that a fair use will be found, but it does not automatically make it a fair use. In the LA Times v Free Republic case For example, the court found that the non-commercial use of the Los Angeles Times through the Free Republic website does not constitute fair use as the public can obtain material at no cost that they would otherwise pay for. Richard made a similar decision in the story Code Revision Commission and in the US state of Georgia v Public.Resource.Org, Inc., that the service, despite the fact that it is a nonprofit organization and did not sell the work, annotated its unauthorized publication of the Official Code of Georgia for "the attention, appreciation, and contributions" it received in connection with the work had received.

Another factor is whether the use fulfills any of the preamble purposes also mentioned in the above legislation, since these have been interpreted as "illustrative" of transformative use.

Given the dominance of "transformative" rhetoric in recent fair use regulations, it is questionable whether the first factor and transformativity in general have become the most important parts of fair use.

2. Type of copyrighted work

Although the Supreme Court ruled that the availability of copyright protection should not depend on the artistic quality or value of a work, fair use analyzes consider certain aspects of the work to be relevant, such as: B. whether it is fictional or not fictional.

To prevent private ownership of works that are rightly in the public domain, facts and ideas are not protected by copyright - only their particular expression or fixation deserves such protection. On the other hand, the social benefits of freely available information can affect the adequacy of copyright for certain fixings. For example, the Zapruder film about the assassination of President Kennedy was dated Time Magazine bought and copyrighted. Yet their copyright law was not followed, in the name of the public interest, though time trying to dictate the reproduction of still images from the film in a history book on the subject in Time Inc v. Bernard Geis Associates .

In the decisions of the second circuit in Salinger versus Random House and in New Era Publications Int'l v Henry Holt & Co the issue of whether the copied work was previously published was considered crucial, assuming the original author's right to control the circumstances of the publication of his work or the preference not to publish at all. Judge Pierre N. Leval considered this importation of certain aspects of France droit moral d'artiste (moral rights of the artist) in American copyright law, however, as "bizarre and contradicting" because it sometimes gives works that were created for private use better protection for purposes that have little to do with the public goals of copyright law with works that copyright law originally designed for protection. This does not mean that unpublished works, or especially works that are not intended for publication, do not deserve legal protection, but that such protection should come from privacy laws rather than copyright laws. The fair use legal requirement was changed in response to these concerns by adding a final sentence: "The fact that a work is unpublished does not in itself preclude a fair use determination when that determination is made with all of the above factors in mind. "

3. Quantity and materiality

The Ninth Circuit has determined that the use of thumbnails in image search engines is fair use.

The third factor evaluates the amount and materiality of the copyrighted works used. In general, the less that is used in relation to the whole, the more likely it is to be used as fair.

Using most or all of the work does not prevent fair use. This simply makes the third factor less favorable for the defendant. For example, in Sony Corp. of America v Universal City Studios, Inc. the Copying of entire television programs for private viewing confirmed as fair use, at least when copying is for the purpose of time shifting. In the Kelly v Arriba Soft Corporation case the Ninth Circuit held that copying an entire photo for use as a thumbnail in online search results does not even speak against fair use "if the secondary user copies only what is necessary for him or her." Usage".

Even the use of a small percentage of a work can make the third factor unfavorable to the defendant by taking into account the "materiality" of the part used in addition to the amount used. In the Harper & Row v Nation Enterprises For example, the US Supreme Court ruled that quoting a news article less than 400 words from President Ford's 200,000-word memoir was enough to weigh the third fair use factor against the defendants. because the part was the "heart of the work". This use was ultimately found to be unfair.

4. Impact on the value of work

The fourth factor measures the effect that the allegedly infringing use had on the ability of the copyright owner to exploit his original work. The court is investigating not only whether the defendant's specific use of the work has significantly affected the copyright owner's market, but also whether such uses, in general, if widespread, would affect the potential market of the original. The burden of proof here lies with the owner of the copyright, who must prove the effects of the infringement on the commercial use of the work.

For example, the copyright owner has Universal in Sony Corp. against Universal City Studios provided no empirical evidence that Betamax use either reduced viewership or negatively impacted business. In Harper & Row, In the case relating to President Ford's memoir, the Supreme Court identified the fourth factor as "the most important element of fair use" and has since taken some precedence in the fair use analysis. The recent Supreme Court announcement in Campbell v Acuff-Rose Music Inc, that "all [four factors] should be examined and the results weighted together in light of the purposes of copyright law" has helped to modulate this emphasis on interpretation.

When assessing the fourth factor, the courts often consider two types of damage to the potential market for the original work.

  • First, courts consider whether the use in question is acting as a direct market replacement for the original work. In the Campbell case the Supreme Court found that "if a commercial use is a mere reproduction of the entire original, it clearly replaces the subject matter of the original and serves as a market substitute for it, making it likely that there will be discernible market damage to the original." Original will occur ". In one case, a court ruled that this factor incriminated a defendant who had made unauthorized movie trailers for video distributors because his trailers acted as direct replacements for the copyright owner's official trailers.
  • Second, the courts also examine whether potential market damage could exist beyond the direct replacement, for example through the potential existence of a licensing market. This consideration worked against commercial copy shops making copies of items in packaged courses for students when there was already a packaged course licensing market.

The courts recognize that certain types of market damage do not negate fair use, such as when a parody or negative evaluation affects the market of the original work. Copyright considerations may not protect a work from adverse criticism.

Additional factors

As explained by Judge Leval, courts are allowed to include additional factors in their analysis.

One such factor is recognition of the copyrighted source. Providing the name of the photographer or author can be helpful, but does not automatically make their use fair. While plagiarism and copyright infringement are related issues, they are not the same. Plagiarism (the use of words, ideas, images, etc. without credit) is a matter of professional ethics, while copyright is a matter of the law and protects the exact expression, not the Ideas. You can even plagiarize a work that is not copyrighted by, for example, casting a line from Shakespeare as your own. Conversely, the attribution prevents allegations of plagiarism, but does not prevent copyright infringement. For example, reprinting a copyrighted book without permission, relying on the original author, would be copyright infringement but not plagiarism.

US Fair Use Procedures and Practices

The US Supreme Court has fair use in Campbell v Acuff-Rose Music, Inc. referred to as an affirmative defense . This means that in a copyright infringement litigation, the defendant has the burden of collecting and demonstrating that the use was fair and not infringing. Therefore, fair use need not even be invoked as a defense, unless the plaintiff first demonstrates (or the defendant concedes) a "prima facie" case of copyright infringement. If the work was not copyrighted, the time limit has expired, or the defendant's work borrowed a small amount, for example, the plaintiff cannot Prima facie detect a violation, and the defendant does not even have to take a fair use defense. In addition, fair use is just one of many restrictions, exceptions, and safeguards against copyright infringement. Thus, a Prima facie be defeated without relying on fair use. For example, the Audio Home Recording Act states that it is legal to make copies of audio recordings for non-commercial personal use using certain technologies.

Some copyright owners claim they also commit violations in circumstances where the fair use defense would likely succeed, in the hopes that the user would refrain from using it rather than devoting resources to defending it. Strategic Public Participation Lawsuits (SLAPP) alleging copyright infringement, patent infringement, defamation or defamation may conflict with the defendant's right to freedom of expression. This possibility has led some jurisdictions to enact anti-SLAPP laws that reduce the burdens and risks of the plaintiff.

Although supposedly fair use allows certain uses without liability, many content creators and publishers try to avoid potential litigation by obtaining a legally unnecessary license from copyright holders for finding everyone Use of unprotected material, even in situations where fair use would likely be successful. The simple reason is that the licensing terms negotiated with the copyright owner can be much cheaper than defending against a copyright lawsuit or the mere possibility of a lawsuit jeopardizing the publication of a work in which a publisher has invested significant resources.

Fair rights of use take precedence over the interests of the author. Therefore, the copyright owner cannot use a non-binding disclaimer or notice to revoke the right to fair use of works. However, binding agreements such as contracts or license agreements may take precedence over fair use rights.

The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not viewed as infringing. For example, quoting from a copyrighted work is considered fair use to criticize or comment on, or to educate students about it. Certain established applications cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem with all four of the above factors (except possibly in terms of quantity and materiality), but some cases are not as clear. In each case, all factors are considered and balanced: a book reviewer who cites a paragraph as an example of the author's style is likely to fall under fair use even though he may sell his review commercially; An educational nonprofit website that reproduces entire articles from journals is likely to be a breach if the publisher can demonstrate that the website affects the market for the magazine even though the website itself is non-commercial.

Fair use will be decided on a case-by-case basis in all circumstances. The same act carried out in a different way or for a different purpose may acquire or lose fair use status. Even repeating an identical action at a different time can make a difference due to changing social, technological, or other circumstances.

Fair use in certain areas

Computer code

The case Oracle America, Inc. v Google, Inc. revolves around the use of application programming interfaces (APIs) that define the functionality of the Java programming language created by Sun Microsystems and now owned by Oracle Corporation. Google used the definition of APIs and their structure, order, and organization (SSO) in creating the Android operating system to support the mobile device market. Oracle sued Google in 2010 for both patent and copyright infringement. After two cycles, however, the matter was narrowed down to whether Google's use of the definition and SSO of Oracle's Java APIs (which were considered proprietary) was in fair use by Google. The federal appeals court ruled against Google, stating that while Google was able to defend its use in the nature of the copyrighted work, its use was non-transformative and primarily harmed Oracle commercially as it also sought access to the cellphone market. However, the US Supreme Court overturned that ruling, ruling that Google's actions meet all four of the fair use tests and that granting Oracle exclusive rights to use Java APIs in cellular markets "was not the basic creativity goals of copyright law further affect ".

Documentaries

In April 2006, the filmmakers became the Loose Change A series of lawsuits filed by Jules and Gédéon Naudet over the use of their footage, particularly the footage of the firefighters discussing the collapse of the World Trade Center. With the help of an intellectual property attorney, the creators of Loose Change successfully argued that much of the footage used was for historical purposes and has been significantly altered in the context of the film. They agreed to remove some of the shots that were used as a B-roll and that served no purpose for larger discussion. The case has been resolved and a potential multi-million dollar lawsuit has been avoided.

This film has not yet been rated. He Also relied on fair use to show multiple clips from copyrighted Hollywood productions. The director originally planned to license these clips from their studio owners but found that studio licensing agreements prohibited him from using this material to criticize the entertainment industry. This led him to invoke the fair use doctrine, which allows the limited use of copyrighted material for analysis and criticism of published works.

Data exchange

In 2009, fair use appeared as a defense in lawsuits against file sharing. Charles Nesson argued that file sharing was considered fair use in his defense of alleged file sharer Joel Tenenbaum. Kiwi Camara, who was defending alleged file sharer Jammie Thomas, announced a similar defense. However, in the Bar case, the Court rejected the idea that file sharing is fair use.

Internet publication

Kelly v Arriba Soft Corp. , a 2003 US lawsuit that provides and develops the relationship between thumbnails, inline linking, and fair use. In the lower judicial district case on a motion for summary judgment, the use of thumbnail image of the Arriba Soft and inline linking of Kelly 's website in Image of the Arriba Soft search engine was found not to be fair to its use. This decision has been challenged and challenged by internet rights activists like the Electronic Frontier Foundation, who argued it was fair use.

On appeal, the 9th District Court of Appeal ruled in favor of the defendant Arriba Soft. In making its decision, the court used the legal four-factor analysis. First, it was determined that the purpose of making the thumbnails as thumbnails was sufficiently transformative, determining that they shouldn't be displayed at high resolution like the original. Second, the photographs had already been published, diminishing the importance of their nature as creative works. Third, while a "full" replica of a copyrighted work would normally appear to be infringing copyright law, it has been found here to be appropriate and necessary for its intended purpose. Finally, the court found that the creation of the thumbnails would not significantly affect the market for the original photos. On the contrary, looking for thumbnails could increase the exposure of the originals. Looking at all of these factors as a whole, the court found that the thumbnails had been used fairly and, after issuing a revised opinion, referred the case to the lower court for trial on July 7, 2003. The remaining problems were subsequently resolved by default judgment. Arriba Soft had significant financial problems and was unable to reach a negotiated solution.

In August 2008, Judge Jeremy Fogel of the Northern District of California ruled in the Lenz v Universal Music Corp. case, that copyright holders cannot order the deletion of an online file without determining whether that publication reflects the "fair use" of the copyrighted material. The case concerned Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania, who made a home video of her thirteen-month-old son dancing to Prince's song Let's Go Crazy and posted the video on YouTube. Four months later, Universal Music, the copyright owner of the song, ordered YouTube to remove the video under the Digital Millennium Copyright Act. Lenz immediately notified YouTube that her video was fair usage and requested that it be restored. YouTube met the requirements after six weeks, not the two weeks required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for legal costs, alleging the music company acted maliciously by ordering the removal of a video depicting fair use of the song. On appeal, the ninth circuit appeals court ruled that a copyright owner must ascertain whether the conduct complained of is fair use before sending a notice of acceptance under the Digital Millennium Copyright Act, rather than waiting for the alleged infringer to make a fair use asserts. 801 F.3d 1126 (9th Cir. 2015). "Even though, as Universal strongly urges, fair use is classified as an 'affirmative defense', we clearly believe fair use is copyrighted within the meaning of the DMCA in order to be treated differently from traditional affirmative defenses. We conclude." Since 17 USC § 107 created a type of non-infringing use, fair use is "legally permissible" and a copyright owner must verify the existence of fair use before sending a notice of shutdown under § 512 (c). "

In June 2011, Judge Philip Pro of the Nevada District ruled in Righthaven v. Hoehn, that the publication of an entire editorial article from the Las Vegas Review Journal in a comment as part of an online discussion was undeniably fair. Richter Pro noted, "Non-commercial, non-profit use is probably fair. ... Hoehn published the work as part of an online discussion. ... This purpose is consistent with a comment for which 17 USC § 107 Protection from Fair Use It is undisputed that Hoehn published the entire work in his comment on the website. ... Wholesale copying does not preclude a determination of fair use. ...There is no real issue with the physical fact that Hoehn's use of the work was fair and a summary judgment is appropriate. "On appeal, the 9th Circuit Court of Appeals ruled that Righthaven didn't even have the authority to sue Hoehn for copyright infringement.

Professional communities

In addition to taking into account the four fair use factors, courts that decide on fair use cases also take into account the standards and practices of the professional community from which the case originates. The communities include documentary filmmakers, librarians, open courseware makers, visual arts educators, and communication professors.

Such codes of conduct have enabled communities of practice to make more informed risk assessments when they apply fair stance in their daily practice. For example, broadcasters, cable companies, and distributors typically require filmmakers to purchase failure and omission insurance before the distributor accepts the film. This insurance protects against errors and omissions made in the copyright release of material in the film. Before the Explanation the Documentary filmmaker on best practices for fair use Created in 2005, it was nearly impossible to get error and omission insurance for copyright clearance work, some of which was fair use. This meant that documentary filmmakers either had to license the material or cut it from their films. In many cases it was impossible to license the material as the filmmaker tried to use it critically. Shortly after the Best Practice Statement was published, all failure and omission insurers in the US relocated to offer routine fair use coverage.

Music sampling

Before 1991, sampling was accepted in certain genres of music, and copyright considerations were considered largely irrelevant. The strict decision against the appropriation of a Gilbert O'Sullivan song by rapper Biz Markie in the case Grand Upright Music, Ltd. against Warner Bros. Records Inc. changed practices and opinions overnight. The samples now had to be licensed as long as they rose "to a legally recognizable level of appropriation". This left the door for that De minimis Doctrine open to brief or undetectable samples; Such uses would not result in copyright infringement as, according to the De minimis Doctrine "the law does not care about little things". However, 3 years later, the Sixth Circuit effectively eliminated that De minimis Doctrine in the case Bridgeport Music, Inc. v Dimension Films according to which artists "have to get a license or not have to try". The court later clarified that our opinion does not apply to fair use, but between Grand upright and Bridgeport the practice had effectively shifted to eliminate unlicensed samples.

parody

Producers or creators of parodies of a copyrighted work have been sued for infringement by the aims of their ridicule, although such use may be protected as fair use. These fair use cases differentiate between parodies using a work to make fun of the work itself and the satire, or to comment on it or to comment on something else. The courts were more willing to protect parodies from fair use than satire, but the final outcome in either circumstance will depend on the application of the four fair use factors.

For example, when Tom Forsythe appropriated Barbie dolls for his Food Chain Barbie photo project (which shows multiple copies of the doll that are naked and disheveled and about to be baked in an oven, mixed in a blender, and the like), Mattel lost his Copyright infringement lawsuit against him because his work effectively parodies Barbie and the values ​​she represents. In Rogers v. Koons Jeff Koons tried to justify his appropriation of Art Rogers' photo "Puppies" in his sculpture "String of Puppies" with the same parody defense. Koons lost because his work was presented not as a parody of Rogers' photo, but as a satire of society as a whole. This was not enough to make usage fair.

In Campbell v Acuff-Rose Music Inc the US Supreme Court recognized parody as a potential fair use, even if carried out profitably. Roy Orbisons, Acuff-Rose Music, sued 2 Live Crews in 1989 for using Orbison's "Oh, Pretty Woman" in a derisive rap version with altered lyrics. The Supreme Court viewed 2 Live Crew's version as a ridiculous commentary on the earlier work and ruled that the commercial nature did not rule out the defense if the parody itself was the product and not just the advertisement. The Campbell Court also distinguished parodies from satire, which they termed a broader social criticism that is not inextricably linked to the ridiculousness of a particular work and therefore does not deserve the same exceptions to use as parody, since the satirist's ideas are capable of doing without the use of the phrase other special work.

A number of appeal decisions have recognized that a parody can be a protected fair use, including the second ( Leibovitz v Paramount Pictures Corp. ); the ninth ( Mattel v. Walking Mountain Productions ); and the eleventh circuits ( Suntrust Bank v Houghton Mifflin Co. ). In the case of Suntrust Bank from 2001 have the Suntrust Bank and the Margaret Mitchell Estate filed an unsuccessful lawsuit over the publication of The Wind Done Gone set in which many of the characters and situations look like Gone with the Wind However, the events were reused from the point of view of the enslaved people rather than the slave owners. The Eleventh Circle, the Campbell applied, found that The Wind Done Gone was used fairly, and overturned the district court's injunction against its publication.

Cases where satirical use has been found fair include Blanch against Koons and Williams v Columbia Broadcasting Systems .

Text and data mining

The transformative nature of computational analysis processes such as text mining, web mining and data mining has led many to believe that such uses would be protected under fair use. That view was supported by the judgments of Judge Denny Chin in the Case Authors Guild, Inc. v Google, Inc. underpinned, in which millions of books from collections of research libraries have been massively digitized. As part of the ruling that found the book digitization project to be fair use, the judge stated, "Google Books is also transformative in the sense that it uses book text for content research purposes, including data mining and text mining in new areas , has converted into data ".

Text and data mining was introduced in Authors Guild v. HathiTrust , a case from the same digitization project mentioned above, another review subjected . When Judge Harold Baer found that the accused's use was transformative, he stated that "the search capabilities of the [HathiTrust Digital Library] have already led to new methods of academic investigation such as text mining".

Reverse engineering

There is an extensive fair use law in place when it comes to reverse engineering computer software, hardware, network protocols, encryption and access control systems.

Social media

In May 2015, the artist Richard Prince published an exhibition of photographs entitled "New Portraits" at the Gagosian Gallery in New York. His exhibition consisted of screenshots of the pictures taken by Instagram users, which remained largely unchanged. Prince's comment has been added below. Although no Instagram user authorized Prince to use their images, Prince argued that adding his own comment on the images was fair use, so he didn't need permission to use the images or pay royalties for its use. One of the pieces sold for $ 90,000. With regard to the works presented by Painter, it was stated in the gallery in which the images were exhibited that "all images are subject to copyright law". Several lawsuits have been filed against Painter over the New Portraits exhibition.

Influence internationally

While US fair use law has had an impact in some countries, some countries have fair use criteria that are drastically different from those in the US, and some countries have no fair use framework at all. Some countries have the concept of fair trade instead of fair use, while others have different systems of restrictions and exceptions to copyright. In many countries reference is made to an educational exemption, although the extent of this exemption varies widely.

Sources differ in whether fair use is fully recognized by countries other than the United States. American University's infojustice.org Laws published a compilation of parts from more than 40 nations' that explicitly mention fair use or goodwill, and claims that some of the fair use laws, like Canada, have evolved them (as set by judicial precedents) very close to those of the United States be. This compilation contains fair use regulations from Bangladesh, Israel, South Korea, the Philippines, Sri Lanka, Taiwan, Uganda, and the United States. Paul Gellers International Copyright and his international practice from 2009 however, state that some other countries recognize similar exceptions to copyright, but only the United States and Israel fully recognize the concept of fair use.

The International Intellectual Property Alliance (IIPA), a lobby group of U.S. copyright industry entities, has opposed the international adoption of U.S.-style fair use exemptions, according to which such laws are dependent on common law and long-term legal precedent that cannot exist outside of the United States.

Israel

In November 2007, the Israeli Knesset passed a new copyright law that contained a fair use exception based on the American model. The law, which went into effect in May 2008, allows the fair use of copyrighted works for purposes such as personal study, research, criticism, review, reporting, quotation or instruction, or examination by an educational institution. The law sets four factors, similar to the US Fair Use Factors (see above), to determine whether use is fair.

On September 2, 2009, the Tel Aviv District Court ruled in the Premier League Ltd. against Ploni, that fair use is a user right. The court also ruled that streaming live soccer matches on the internet was a fair use. Thus, the court analyzed the four fair use factors adopted in 2007 and cited US case law, including thereby Kelly v. Arriba Soft - Corp. and Perfect 10, Inc. v. Amazon.com, Inc. .

Malaysia

An amendment to Section 13 (2) (a) of the Copyright Act 1987 in 2012 resulted in an exception called "Fair Trade", which is not restricted in its purpose. It includes the four fair use factors set out in U.S. law.

Poland

Fair use exists under Polish law and is covered by Articles 23 to 35 of Polish Copyright Law.

Compared to the USA, Polish fair use distinguishes between private and public use. If the use is public in Poland, there is a risk of fines. The defendant must also demonstrate that his use was private if he was accused that it was not or that other extenuating circumstances apply. Finally, Polish law treats all cases where private material has been published as potential copyright infringement where fair use may apply but which must be demonstrated by reasonable circumstances.

Singapore

Section 35 of the Singapore Copyright Act 1987 was amended in 2004 to allow for a "fair trade" exception for any purpose. The four fair use factors, which are similar to US law, are included in the new section 35.

South Korea

The Korean Copyright Act was amended in 2012 to include a fair use provision, Articles 35-3. The law provides a four-factor test similar to that used under U.S. law:

In determining whether art. 35-3 (1) applies to the use of copyrighted work. The following factors must be taken into account: the purpose and nature of the use, including whether the use is commercial or not for profit; the nature or purpose of the copyrighted work; the amount and importance of the part used in relation to the copyrighted work as a whole; the effect of using the copyrighted work on the current market or value of the copyrighted work or on the potential market or value of the copyrighted work.

Fair trade

Fair trade allows certain exceptions to copyright protection. The open concept of fair use is generally not followed in fair trade countries, although this varies. Fair trade is enshrined in law in Australia, Canada, New Zealand, Singapore, India, South Africa and the United Kingdom, among others.

Australia

While Australian copyright exemptions are based on the fair dealing system, since 1998 a number of investigations by the Australian government have examined and recommended in most cases the introduction of a "flexible and open" fair use system into Australian copyright law. From 1998 to 2017 there were eight investigations by the Australian government into the question of whether Australia should introduce fair use. Six reviews have recommended Australia adopt a "fair use" model for copyright exemptions: two studies specifically on the Copyright Act (1998, 2014); and four more comprehensive overviews (both 2004, 2013, 2016). One review (2000) recommended against the introduction of fair use and another (2005) did not issue a final report. Two of the recommendations were specifically in response to the stricter copyright provisions introduced under the Australia-United States Free Trade Agreement (AUSFTA), while the most recent two were introduced by the Australian Law Reform Commission (ALRC) and the Productivity Commission (PC) were) related to strengthening Australia's "digital economy".

Canada

The Canadian Copyright Act provides a fair trade in Canada that allows certain exceptions to copyright protection. In 1985 the Copyright Revision Subcommittee opposed the replacement of fair trade with an open system, and in 1986 the Canadian government agreed that "the current fair trade rules should not be replaced by the much broader concept of" fair use " ". Since then, the Canadian fair dealing exception has expanded. It now resembles fair use in the US in its effects, although the framework conditions are different.

CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 SCR 339, 2004 SCC 13 is a landmark case by the Supreme Court of Canada that sets the limits to fair trade in Canadian copyright law. The Law Society of Upper Canada has been sued for copyright infringement for providing photocopy services to researchers. The Court unanimously ruled that the Law Society's practice is fair trade.

United Kingdom

Within the UK, fair trade is a legal doctrine that provides an exception to national copyright law in cases where the copyright infringement is for the purpose of non-commercial research or investigation, criticism or review, or news reporting.

Political Arguments for Fair Use

A balanced copyright law gives many high-tech companies such as search engines and software developers an economic advantage. Fair use is also vital for non-tech industries such as insurance, legal services, and newspaper publishers.

On September 12, 2007, the Computer and Communications Industry Association (CCIA), a group that includes companies such as Google Inc., Microsoft Inc., Oracle Corporation,