FAIR USE - art copyrights in the digital age
The individuals and corporations that hold the copyrights to some of the most lucrative cultural icons from this and the previous century are using their political influence to have the rules bent in their favour. In 1998, after some persuasive lobbying and well-targeted campaign contributions, US Congress passed the Copyright Term Extension Act, which prolonged existing copyright controls by twenty more years. This was the eleventh time that Congress had extended ‘fixed’ copyright terms. These and other recent amendments to copyright law have redefined the notion of a public domain to the advantage of copyright owners.
As we begin to realize the immense potential of digital networks for the preservation and free exchange of global culture, it is our collective responsibility to ensure that the private interests of the few will not take precedence over the educational and expressive rights of the many, as is currently occurring with the “calcification” of the public domain.
Fair use allows for the legal, non-licensed citation or incorporation of copyrighted material for purposes such as criticism, comment, parody, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. Similar provisions exist in most European and Commonwealth nations, though their name and specific clauses may vary. In the UK, the comparable defence is known as ‘fair dealing’, though parodies are not included in its list of potential applications. Because of its unpredictability, the high cost of defending it in court, and the crushing liability that may result if one guesses wrong, it is becoming exceptionally difficult to build a reliable fair use defence.
The fair use provision can be invoked for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
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.
2006