Dan began with referencing a portion of United State Constitution, Article 1, Section 8, Congress shall have the power… “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. This is what sets up what copyright is, however in that statement is an inherent conflict, Dan commented.
We are all pretty familiar with the concept of Title 17, Subsection 106 of the United States code. This is the part that grants the owner of the copyrighted work the exclusive rights to do and authorize reproductions, copies, derivatives, etc. However, it’s Subsection 107 that tends to create confusion—the limitations on exclusive rights—fair use. There are four specific factors, that work together, which must be considered to determine fair use.
- 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.
I can relate if you’re thinking, “I’m not a lawyer, how am I supposed to be expected to interpret this?” Legal-ese makes my head spin, but the way Dan explains it, with the examples he uses, helps it all to make a little more sense so I highly recommend you check out this short (under 30 minutes) webinar replay.
He focuses on the two points that we, as PR professionals, are most likely to be affected by. In addition, he references two specific copyright-specific court rulings on recent media monitoring cases. (Side note: BurrellesLuce has a copyright compliant article program and agreements with most major publishers as well as individual titles.)
- Purpose and character of use. Dan says the real defining question is: is the content used in a different manner or for a different purpose from that which was originally copyrighted? He read a portion of a 1990 legal article, written by two judges, dealing with whether the use is “transformative” (which is a valid defense). There is a lot of gray area here and it’s no wonder there’s so much confusion surrounding fair use! Dan claims that fair use is part of the law but some claim it’s only lawful in that it offers a defense to the end user should the use be challenged by the copyright holder.
- Effect of the use upon the potential market or value. This is a little easier to understand. Dan says the defining question here is: what is the effect of the use on the copyright owner’s ability to exploit the value of their original work. In other words, is how you’re using it taking potential money out of the owner’s pocket?
Dan cautions that fair use is based on market conditions—as the market changes, so may the judicial rulings.
Webinar moderator, Johna Burke, who’s also AMEC North American Co-Chair and BurrellesLuce CMO, wrapped up with questions to Dan from the participants. He finished-up with some straight-talk about why you need to know these things, the most compelling of which was “so you don’t get sued” (but he had a lot other great answers as well).
I’ve enjoyed learning more about measurement (and copyright) the past couple weeks and hope you have too!
*This post by Tressa Robbins originally appeared on October 5, 2016, on the BurrellesLuce Fresh Ideas blog at http://www.burrellesluce.com/freshideas/2016/10/copyright-understanding-fair-use/ and is cross-posted here with permission.