What are fair use and other exceptions to copyright?
Laws across the globe recognize that strict application of copyright laws in certain cases may be unfair or may inappropriately stifle creativity or stop people from creating original works, which would harm the public. These laws allow people to use, under certain circumstances, someone else's copyrighted work. Common examples include use for the purpose of criticism, commentary, parody, satire, news reporting, teaching, education and research.
The United States and some other countries follow the “fair use” doctrine, while other countries, including those in the European Union, provide other exceptions or limitations to copyright. These exceptions or limitations permit users to use copyrighted material where appropriate. You may want to seek legal advice if you have questions about the possibility to use someone else’s copyrighted work within the limits set by the law.
Though it's often difficult to know if a particular use of copyrighted work is a fair use, the law offers some factors you can consider:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes:
- The nature of the copyrighted work:
- The amount and substance of the portion used in relation to the copyrighted work as a whole:
- The effect of the use upon the potential market for or value of the copyrighted work:
Does the use transform or change the original work by adding new meaning, context or expression? Using a fashion photograph to discuss the amount of photo editing used in the photograph is more likely to be fair use than simply posting the photograph without comment. Parodies may be fair use if they imitate a work in a way that criticizes or comments on the original work.
Is the use commercial or purely personal? Commercial, or for-profit, uses are less likely to be considered fair use.
The use of factual works like maps or databases is more likely to be fair use than the use of highly creative works like poems or science-fiction movies.
The use of small portions of a copyrighted work is more likely to be fair use than copying an entire work. But even if only a small portion is used, it is less likely to be fair if that portion used is the most important piece — the “heart” of the work.
Will the use replace the original work such that people stop buying or viewing the copyrighted work? If so, this is less likely to be fair use.
To learn more about fair use in the U.S., you can visit the U.S. Copyright Office Fair Use Index.
Exceptions to Copyright
The application of exceptions and limitations to copyright may vary from country to country. As a general matter, in countries that rely on exceptions and limitations, the use of copyrighted works should not unreasonably harm a rights holder’s interests. In the EU, each Member State must ensure that users are able to rely on the following exceptions when making content available: quotation, criticism, review, caricature, parody or pastiche. To learn more about copyright law in the EU, you can visit the EUIPO website.
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