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Navigating fair use as a publisher or freelance writer

Avoid copyright trouble! Understand "Fair Use" for publishers & freelance writers. Get the lowdown & protect your work!

"Fair Use" is a basic but frequently misunderstood principle of copyright law. It's a standard line of defence against accusations of copyright infringement. In its broadest definition, fair use refers to any reproduction of copyrighted content that serves a "transformative" purpose, such as providing commentary on, criticising, or parodying the original work in question. Such applications do not necessitate the approval of the original creator. Fair use can be used as a defence when challenged for copyright infringement. Fair use means that your use is not illegal because it does not violate anybody else's rights.

But what exactly constitutes a "transformative" application? Millions of dollars in legal expenses have been spent defining what constitutes fair use. Thus, this definition may sound unclear or vague. The judges and politicians who established the fair use exemption did not wish to restrict its scope. Therefore, they left its application to discretion rather than regulations. They aimed for it to be broadly interpretable, much like the right to free expression. You can find the fair use index published by the US Copyright Office here. 

Determining what is transformative—and the degree of transformation—is often tricky. The creation of a Harry Potter encyclopaedia, for instance, was deemed "slightly transformative" (since it compiled all of the Harry Potter lexicons and glossaries into a single volume), but the extensive quotations from the books disqualified the work from being considered fair use. (“Warner Bros. Entertainment, Inc. v. RDR Books”).

This Fair Use Doctrine  Only Works in the USA!

Section 107 of the United States Copyright Act of 1976, titled "Limitations on exclusive rights: Fair Use," is the only place in the law where the idea of "Fair Use" appears.

It is not an infringement of copyright to use a copyrighted work "for fair purposes," which the US Copyright Act defines as "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Claiming "Fair Use" as a legal defence does not guarantee that you will not be held responsible for copyright infringement because it is not applied consistently or absolutely.

‍Similar doctrines can be found in the law of many nations, where they may be referred to as "Fair Dealing" clauses or as "copyright law limitations," among other names. Hence, it is important to know that 'Fair Use' does not provide blanket protection for online publications outside the United States.‍

‍What kinds of uses do not require authorization and fall under the category of "fair use"?

While 'Fair Use laws vary by jurisdiction, in general, they permit the use of copyrighted works within certain parameters without the need to seek out or pay the original author for permission to do so.

There are four factors for deciding fair usage,

Here are the four standards:

The nature and goals of the application: For instance, there is typically a divide between commercial and non-profit/educational applications. The fact that your work is intended for financial gain does not automatically render it an unfair usage. However, if you're using a lot of other people's ideas and creations to support your own business ventures, it may not fall under the umbrella of ‘Fair use’

The nature of the copyrighted work: It is important to note that anything which is a fact or a truth is not copyrightable. In general, more protection is afforded to works that display creativity or imagination.

How much and how important the part used was in comparison to the whole work that was quoted. There is no percentage or word count provided by the legislation to use in this instance. Fair use may not be met if the bit you've quoted is the most important or interesting element of the original work. However, most publishing houses' author guidelines include a rough estimate.

The impact of the appropriation on the book's marketability and worth.  Fair use does not come into play if the use of the original work makes people less likely to buy the original work/book. By this I mean: If you quote the work a lot or in a way that makes the original source unnecessary, then you might be hurting the market for that work. However. Don't mistake this criterion with the goal of reviews or criticism. If a bad review would make consumers reluctant to purchase the source, that has nothing to do with the fair use debate.

General FAQS

If due credit is given, can the copyrighted material be used without permission?

Although giving due credit is the right thing to do ethically. Legally, attribution is not enough to avoid copyright infringement when weighing the four statutory considerations that define fair usage.

How can publications obtain permission to utilise copyrighted material?

The owner of the copyright can be contacted by the publisher to gain permission. Fees and licences may need to be negotiated as part of this process. Getting permission in writing is the best way to avoid misunderstandings and document the deal.

What steps should publishing companies take to be more aware of fair use?

The answer is that publishers need to keep records of their fair use analyses, which should specify how they weighed each of the four considerations. Written evaluations, correspondence with copyright owners, and applicable legal counsel sought may all qualify as documentation.

How can publishing houses keep up with evolving standards for fair use?

Reading respected trade magazines, and consult an attorney as necessary. Joining a professional organisation and going to conferences in your field can also be very informative. You can also find more information on fair use here.

Yoshita Gwalani

I am distinguished and licensed attorney renowned for expertise in Intellectual Property (IP) law, holding a coveted master's degree, with a specialized focus on Intellectual Property Rights (IPR), data privacy, and technology law, I am a dedicated legal professional committed to providing invaluable counsel to start-ups and clients alike. My formidable forte is legal research and writing, offering clients comprehensive and strategic solutions in the ever-evolving landscape of intellectual property and technology legal matters.

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