Abolishing Fair Use?
Information Today, Vol. 23, No. 11, p. 21, December 2006
3 Pages Posted: 22 Jun 2010
Date Written: December 1, 2006
Abstract
Fair use has long been one of the problem children of copyright law. It was created and lives in a state of conflict. Its purpose is to allow one person to infringe on the copyright held by another, which may not sit well with the copyright holder. But its purpose is also to provide a means for new and different uses of copyrighted works. This allows for knowledge and learning to develop, which most people consider good.
Fair use is also misunderstood. It is not a right – as in “I have a fair use right to copy that article”. Legally, it is an exemption from infringement under limited and specified circumstances. More importantly, it is considered a defense to infringement that is raised after the infringement has already taken place.
Finally, fair use is complex and confusing. The fair use doctrine outlines a series of factors to determine if a use is fair or not. Those factors include requiring that the use for a specific beneficial purpose such as research, teaching, criticism or comment, news reporting and inquiring about the purpose of the use, the nature of the work being used, the amount used, and the effect on the market for the work. Because of all the variables, whether a use is fair is often uncertain, and can’t be made certain absent a lawsuit and court decision. As a result, fair use is often underused or overused, and the subject of litigation such as the current lawsuit between Google and the Author's Guild over the Google Print program.
Keywords: fair use doctrine, copyright law, reform, lawsuits, legislation, copyright infringement, market effect
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