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Fair use doctrine under copyright law: what you must know?

Fair use is an exemption to a creator’s rights that permits limited copyrighted content without the author’s consent. The fair use concept serves to prevent a strict interpretation of copyright law, which would be detrimental to copyright’s primary goal of encouraging creativity. Let’s have a look at the Fair Use of Copyright.

What exactly is copyright?

Copyright refers to an author’s, artists, composers, or other creators’ inherent right to control the Use of their Work. It means that without the author’s consent, a copyrighted work may not be replicated, spread, or appropriated by others. Furthermore, the Work’s public presentation or performance is under the creator’s authority.

Factors determining fair use Doctrine under Copyright Law

The concept of fair use evolved through time as courts attempted to strike a balance between copyright owners’ rights and society’s desire to allow limited copying. This doctrine is based on the idea that not all copying should be restricted, especially in socially significant undertakings like criticism, news reporting, education, and research.

The Copyright Act now codifies the notion of fair use, which the courts first adopted. Four considerations must be taken into account to decide whether certain conduct is a “fair use” under the Act. The following are some of these variables:

  1. The user’s purpose and nature, including whether it’s commercial or educational:

Courts consider how the party alleging fair use is employing the copyrighted Work, and nonprofit educational and noncommercial uses are more likely to be found to be fair. It is not to say that all nonprofit educational and noncommercial uses are fair or that all commercial uses are unjust; instead, courts will weigh the aim and nature of the use against the other elements listed below. Furthermore, “transformative” applications are more likely to be seen favorably. Transformative uses contribute something new to the Work, such as a new purpose or character, and do not replace the Work’s original usage.

  1. The nature of the copyrighted Work:

This element assesses how closely the Work utilized relates to copyright’s goal of promoting creative expression. As a result, claiming fair Use for more artistic or imaginative Work (such as a novel, movie, or song) is less likely than claiming fair use for real Work (such as a technical article or news item). Furthermore, it is less probable that the use of an unpublished work will be judged fair.

  1. The amount and quality of the portion copied in proportion to the entire copyrighted Work:

Courts consider both the amount and quality of copyrighted material utilized in this aspect. Fair use is less likely to be found in use involves a considerable percentage of the Original Work; fair use is more likely if the user utilizes only a small amount of copyrighted material. However, under certain conditions, some courts have ruled that using a whole work is permissible. In other cases, it was decided that utilizing even a tiny portion of a copyrighted work was not fair since the selection represented a significant part—of the “heart”—of the Work.

  1. The impact of the usage on the prospective market for or value of the copyrighted Work: 

In this case, the courts consider whether and to what degree the unauthorized use affects the present or future market for the copyright owner’s original Work. In determining this criterion, courts evaluate whether the use harms the current market for the original Work (for example, by displacing the actual sales) and whether it may cause significant harm if it becomes widespread.

Other Factors to be determined by the Court 

In addition to those mentioned above, the Court may consider other factors in assessing a fair use claim, depending on the circumstances. Courts evaluate fair use claims on a case-by-case basis, and a fact-specific investigation determines the outcome of each case. It implies there is no formula to assure that a specified proportion or amount of Work—or a specific number of words, lines, pages, or copies—may be used without authorization.

In Google LLC v. Oracle America, Inc., No. 18-956, 593 U.S. (Apr. 5, 2021), the Supreme Court determined that Google re-implemented the Java user interface, taking only what was required to allow outside developers to work in a new and transformative mobile smartphone program. Google’s copying of the Sun Java API was fair use as a matter of law.

In another case of Rogers v. Koons, 960 F.2d 301, an artist used a copyrighted photograph as the base for wood sculptures, faithfully copying every original feature. With the selling of the sculptures, he made a lot of money. The Court had to decide whether the defendant’s use of the plaintiff’s photograph to build sculptures was fair.

The Court disagreed with the defendant’s argument, holding that because the defendant’s Work was primarily commercial, “the potential of future damage to plaintiff’s picture is presumed, and the market for plaintiff’s work has been hurt.”

You may want to know: Relevance of prior use doctrine under UAE Trademark Law

Under UAE Copyright Law on fair use doctrine

Article 23 of the UAE Copyright law classifies reproduction of the Work as ‘fair use,’ with the requirement that the cause for copyrighted work copying is justified. If a copyrighted Work falls into one of the following categories, the author cannot prohibit it from being published in newspapers, journals, or by broadcasting organizations:

  1. Current-events-related extracts

Extracts from current-events publications that have been made legitimately available to the public do not constitute copyright infringement. The source and creator of the Work must be identified.

  1. Debate Publication

Copyright infringement does not apply to published articles arguing matters that affected public opinion at one time. It’s also crucial to credit the article’s source and author.

iii. Reporting on current events

Speeches, lectures, and addresses are given during general sessions of Parliament, judicial bodies, and public assemblies. The speeches, lectures, and addresses are made available to the press and reproduced in current news coverage.

The purpose of this article is to provide a general overview of the subject. If you want to use content protected by copyright that you did not create, we highly advise you to get legal counsel first. To know more about the Fair use doctrine, contact us today.

HHS Lawyers and Legal Consultants specialize in dealing with copyright infringement cases and provide Copyright enforcement services.


M. Al Khatem

Trademark & Intellectual Property

M. Al Khatem is a senior Trademark and Intellectual Property (IP) expert in HHS Lawyers. He has handled some of the firm’s complex, high-profile cases – many involving the protection of trademark and IP rights.