To prove copyright infringement, the plaintiff must show that it owns a valid copyright and must establish that the defendant engaged in the unauthorized copying of the work protected by the copyright.
“Copying” refers to the act of infringing any of the exclusive rights that accrue to the owner of a valid copyright under 17 U.S.C. § 106, including the rights to distribute and reproduce copyrighted material.
However, the fair use doctrine is an affirmative defense to copyright infringement. Therefore, a defendant in a copyright infringement action could argue that while he may have infringed the plaintiff’s copyright, he did so in a way that is justified under the fair use doctrine. The fair use doctrine permits the legal use of copyrighted material without first acquiring permission from the copyright owner.
The fair use doctrine offers a means of balancing the exclusive rights of a copyright holder with the public’s interest in distribution of information in areas of universal concern such as art, science, or history.
17 U.S.C. § 107 states that, “…the fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
To determine whether the use made of a work is a fair use, the below factors are to be considered:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. See 17 U.S.C. § 107.
The above four factors are nonexclusive. Courts should consider all of them; however, the statute offers no guidance on how courts should consider them, how much weight they should give to each one, or how they should be balanced. Additionally, courts are not required to make a fair use determination solely on the four factors; courts are free to consider other factors, such as a defendant’s bad faith.
In recent years, the significance of fair use within the overall scheme of copyright law has increased considerably. The question of what uses are fair has become increasingly important, as the fair use doctrine has been used to protect a wide range of otherwise infringing activities, from photocopying portions of works for research purposes to recording television broadcasts on DVR.
In my next couple of posts, I will continue to discuss the fair use doctrine. Stay tuned!