We frequently hear about the “fair use” defense when someone is accused of infringement. What is “fair use?”

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Simply put, the doctrine of “fair use” exempts certain unauthorized uses of copyrighted material from infringement liability. It must be noted that this is a very subjective and fact-specific determination.  The fair use defense involves a balancing of the interests of authors and inventors on one hand and society’s competing interest in the free flow of ideas, information, and commerce on the other hand.

Typical situations in which a “fair use” defense is encountered are:

a)      copying for educational purposes;

b)      quoting from copyrighted sources;

c)      online uploading and downloading;

d)      sampling of music;

e)      parody.

In determining whether something is fair use, courts will looks at a number of factors such as:

a)      The purpose and character of the infringing use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

b)      Is the use “transformative” i.e. has it added some new expressive meaning or is it a blatant copy?

c)      The nature of the copyrighted work;

d)      The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

e)      Is the use consistent with industry practices;

f)        Has the user acted in good faith that the use is fair or has the user knowingly infringed; and

g)      The effect of the use upon the potential market for or value of the copyrighted work

About:  Dr. Rayan F. Coutinho is an Intellectual Property and Technology Law attorney at the law firm of Wood & Lamping LLP and can be reached at 513-852-6030 or by email at rfcoutinho@woodlamping.com.

admin @ August 28, 2009