What is a fair use doctrine or standard?
First noteworthy starting point is that to encourage learning from each other and for the benefit of the society, in certain laws, fair use of a copyrighted material is not an infringement of Copyrights of the author or creator of an art, music, phonogram, computer software, manuscript and similar literary works. (Art 2bis and Art 10 of Berne Convention 1979; EU Directive 2001/29/EC Art 5; US Copyright Title 17 U.S.C. §107 to §112, of 2018; Chapter III-Acts Permitted in Relation to Copyright Works of UK Copyrights and Designs Act 1988; and Section 35 of Singapore Copyright Act)
In UK and Singapore Copyright Acts the term fair use is referred to as Fair Dealing, which does not provide a definition of fair use but enlightens with the method of interpretation as:
“Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing – it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?” (Published on UK Government’s IPO Website)
Taking the example of provisions in Section 35(2) Singapore Copyright Act, the criteria to determine fair use includes:
- the purpose and character of the dealing, including whether such dealing is of a commercial nature or is for non-profit educational purposes;
- the nature of the work or adaptation;
- the amount and substantiality of the part copied taken in relation to the whole work or adaptation;
- the effect of the dealing upon the potential market for, or value of, the work or adaptation; and
- the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price.
The above list of criteria is not an objective yard stick which can be applied across the range and diversity of infringement claims invoked by the authors and copyrights holders. The courts and the tribunals must weigh each of the factors in context of the facts and arguments presented. The decision could be a gut feeling, intuitive or circumstantial. It is very unlikely that different courts can come to the unanimous decision for the same case and facts presented.
This dilemma of establishing fair use and challenges for the judiciary are elaborated with an impressive detail in an article by N. Leval Judge, US District Court, New York (Leval, Harvard Law Review Vol 103:1105).
The fair use of works of art and literature only, permits exception in protection of copyrights, which raises questions as to why should there be a fair use allowed in the first place, since there is no such provision in IPRs for patents, designs and plants varieties. The contrast between the two groups of intellectual property is that for patents not every inventor applicant can get a patent and exclusive rights. Secondly it requires the invention to be novel/new non-obvious to the person having skill in the (prior) art, with an inventive step and of industrial application.
However, for copyrighted works, there are no requirements of such stringent quality control, examination, authenticity and newness. As Judge Neval quotes in his article, “[a]ll intellectual creative activity is in part derivative. There is no such thing as a wholly original thought or invention. Each advance stands on building blocks fashioned by prior thinkers.” Thus, authors having learned from the society when they create intellectual works of further advancement, owe a responsibility to contribute to the society by allowing some fair use for similar creativity to continue into the future generation. Without having learnt freely from the ancestors, mankind would have no present but still would be living in stone age. Therefore, the statutes of most of the developed and developing countries address the subject of continuous innovation and growth through encouragement and sharing of intellectual resources.
In this bargain, for the market to flourish and society to benefit, the time and cost incurred by the author also needs to be rewarded by protecting their rights, for a specified period of time. Without benefit of protection and hope of return on their investments, there will be no growth of intellects and that will stifle research and economy in the long run. The social benefits of granting monopoly rights to the authors, easily outweighs the social costs, which anyway are borne by the inventors and authors.
In conclusion, as a responsible user with due recognition and respect for the works of an author, what can be determined as a fair use without compensation to the author, irrespective of the purpose or objective of use? In a fair minded and neutral view, one must recognise the contributions made by an author and should not indulge in misuse or unfair use, which:
- Causes undue prejudice to the economic rights of the copyrights owner or deprives him of the income from such works;
- Should not be used for commercial purpose, keeping in mind that educational and research are also highly sophisticated commercial activities and are no longer a charity, so authors deserve due compensation for such usage as well; and
- Should not be in breach of the moral rights of the original author.
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