Q: If a work remains in copyright, limited quotation is legal within fair use (U.S.) and fair dealing (U.K., etc.) provisions.What are the legal definitions of fair use (U.S.) and fair dealing (U.K., and the like)?
United State of America
According to section 107 of the U.S. Copyright Law, “fair use,” which limits the exclusive rights of the copyright holder, is defined in the following manner:
“The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- 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 substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such a finding is made upon consideration of all the above factors.”
N.B.: contrary to one of the more persistent myths about copyright law, fair use cannot be reduced to a certain quantity of words or number of lines; it is, rather, a flexible multi-factor analysis that can be subjective and tends to differ from case to case and court to court. However, some publishers, editors, and organizations have adopted “guidelines” that limit fair use to specific word counts, line counts, or percentages of text, and sometimes insist that fair use does not apply to certain types of scholarly quotation, such as epigraphs. While these house rules may reflect the comfort level of the publisher or editor, they are not necessarily consistent with the scope of fair use as defined by the law.
It is generally understood that parody may be treated as fair-use criticism or comment in the U.S., as long as the parody specifically targets the copyrighted work and does not merely use the work as a springboard for unrelated “satire.” (See below.)
Increasingly, the pivotal consideration under U.S. fair use is whether the purpose and character of the use are “transformative,” or instead merely “superseding,” of the copyrighted work. A transformative use is one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message . . . .” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). In the scholarly context, a transformative use would typically be one that subjects a reasonable amount of discontinuously-quoted material to critical commentary and analysis, in contrast to a full page or several pages of uninterrupted quoted material that is not treated to substantial analysis or critical commentary by the quoting scholar.
It is important for the scholarly community to understand that as of 1992, the U.S. Copyright Act was amended so that the privilege of fair use was expressly acknowledged as extending to unpublished as well as published material. (See above.) While it is clear that fair use may apply to unpublished material, it is also the case that U.S. courts have historically been more reluctant to find fair use in the context of unpublished material. The case law is still developing on this point.
Finally, the fact that one has asked for permission to quote and been denied it by the copyright holder does not, at least in the U.S., negate the fair-use privilege if it otherwise applies. Individuals often seek permission, not because they believe that fair use does not apply, but because they wish to avoid litigation or threats of litigation by the copyright holder. Were mere refusal of the copyright holder enough to negate fair use, the law could effectively be overruled by private veto.
United Kingdom
Fair dealing and related exceptions in the U.K. include the categories of noncommercial research and private study, criticism and review, as well as the reporting of current events or official proceedings. Fair dealing requires that the user give sufficient acknowledgment of the author and title of the quoted work. The exemptions for criticism and review apply to works that have already been “made available” to the public, and so do not generally apply to unpublished works.
From the website of the Intellectual Property Office.
“For example, ‘fair dealing’ with a literary, dramatic, musical or artistic work, for the purposes of non-commercial research or private study does not infringe any copyright in these works or the typographical arrangement of published editions of these works. Fair dealing has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use; where the economic impact is not significant, the use may count as fair dealing. So, it is probably within the scope of the above fair dealing exception to make single photocopies of short extracts of a copyright work for the purposes of non-commercial research or private study. [FAQ note: that is, multiple reprographic copies of a protected work made in the course of instruction are not fair dealing.] It may be possible to ask a librarian to copy a short extract from a copyright work for you if you are not able to do it for yourself in a library.
“The other fair dealing exception covers use of a copyright work for criticism, review or news reporting.”
A webpage hosted by the Society of Authors offers the following discussion of U.K. fair dealing:
“It is not possible to give specific guidelines on what constitutes ‘fair dealing’ [for criticism or review]; it is a matter of impression and common sense according to the circumstances. However, it may be relevant to take into account the following:
- the length and importance of the quotation(s)
- the amount quoted in relation to your commentary
- the extent to which your work competes with or rivals the work quoted
- the extent to which works quoted are saving you work.
“Some years ago The Society of Authors and the Publishers Association stated that they would usually regard as ‘fair dealing’ the use of:
a single extract of up to 400 words or a series of extracts (of which none exceeds 300 words) to a total of 800 words from a prose work or extracts to a total of 40 lines from a poem, provided that this did not exceed a quarter of the poem.
“The words MUST be quoted in the context of ‘criticism or review.’
“NOTE: While this statement does not have the force of law, it carried considerable weight with a judge experienced in copyright in a leading infringement case. It does not mean, however, that a quotation ‘for purposes of criticism or review’ in excess of these limits cannot rank as ‘fair dealing’ in some circumstances.”
It should be noted that U.K. fair dealing is less flexible and less broadly construed than the fair-use doctrine in the U.S.; fair dealing tends to be categorically limited to the various express purposes mentioned above.
Republic of Ireland
Fair dealing under Irish law (for research or private study, criticism, or review) is similar in many ways to fair dealing in the U.K. and often draws upon U.K. judicial decisions. In addition to fair dealing, the Irish copyright statute provides: “The copyright in a work which has been lawfully made available to the public is not infringed by the use of quotations or extracts from the work, where such use does not prejudice the interests of the owner of the copyright in that work and such use is accompanied by a sufficient acknowledgement.” Copyright and Related Rights Act, 2000, § 52(4). The full significance and application of this provision remain to be explored.
Irish fair dealing requires sufficient acknowledgment of the author and title of the quoted work.
Canada and Australia
Under Canadian “fair-dealing” provisions, the following uses do not infringe copyright:
- for the purpose of research or private study
- for the purpose of criticism, review, or news reporting, so long as the source and the name of the author are mentioned
- for purposes of instruction to make a manual reproduction of a work onto a display board or to make a copy of a work to be used on an overhead projector
- live, not-for-profit performance of a work by students at an educational institution before an audience consisting primarily of students and instructors.
(for a more detailed treatment, see <http://laws.justice.gc.ca/en/c-42/39417.html>)
Australia’s fair-dealing provisions are generally similar with respect to research or study, criticism or review, or news reporting.
In Canada, a work’s being unpublished does not automatically disqualify the person who quotes, copies, or publishes it from the fair-dealing defense, but in general the courts have been reluctant to regard the use of unpublished work as fair dealing. In Australia, a specific exemption permits libraries to provide copies of older unpublished works to patrons for purposes of research or study or with a view to publication.
Factors that may be considered in determining fair dealing in Canada and Australia include the purpose and character of the use, the amount of the use, the alternatives to the use, the nature of the copyrighted work, and the effect of the use on that work. As with U.K. fair dealing, fair dealing in Canada and Australia is generally less flexible and broadly construed than the fair-use doctrine in the U.S.; fair dealing in these countries tends to be categorically limited to the purposes set forth above. Both Canadian and Australian fair dealing draws upon British legal doctrine and precedent.
Q: How do I know whether my quotations are within the parameters of fair dealing/fair use?
There are no easy or straightforward answers to this crucial question, as legislation tends to name general categories of permitted use without providing specifics as to proportion, importance, economic impact, etc. In fact, fair-dealing/fair-use guidelines that name specific percentages or page numbers generally have no basis in the law and are often circulated by publishers, editors, or organizations with an interest in a narrow construction of fair dealing/fair use. (See above.)
U.K. law makes clear that unless it is for noncommercial criticism or review purposes, it is an infringement of copyright to quote or copy a substantial part of a work in copyright without permission. However, “substantial part” is left undefined; precedent suggests that both the size and the importance of the quotation in relation to the total work are considerations in determining substantiality.
Updated April 2012