What is fair use?

4.5 Fair use is a defence to copyright infringement. It essentially asks of any particular use, ‘is this fair?’ This is determined on a case by case basis. The statute does not define what is fair.

4.6 In deciding whether a use is fair, a number of criteria—‘fairness factors’—are considered. These fairness factors are set out in the fair use statutory provision. Law that incorporates such principles or standards is generally more flexible and adaptive than prescriptive rules.

4.7 Most fair use provisions around the world list the same four fairness factors. These are also factors that appear in the current Australian exceptions for fair dealing for the purpose of research or study.^[1] The four fairness factors are non-exhaustive; other relevant factors may be considered.

4.8 In other jurisdictions fair use provisions set out illustrative purposes—these are examples of broad types or categories of use or purposes that may be fair. A particular use does not have to fall into one of these categories to be fair. This is one of the key benefits of fair use. Unlike the fair dealing provisions, fair use is not limited to a set of prescribed purposes.

4.9 Also, just because a use falls into one of the categories of illustrative purpose, does not mean that such a use will necessarily be fair. It does not even create a presumption that the use is fair. In every case, the fairness factors must be ‘explored, and the results weighed together, in light of the purposes of copyright’.^[2]

4.10 Where copyright legislation includes an exception for fair use, there will also be other more specific exceptions that operate in addition to fair use.

4.11 Fair use is not a radical exception. It largely codifies the common law. Fair use and fair dealing share the same common law source.^[3] Fair use has been enacted in a number of countries,^[4] but most notably, in the United States.^[5]

4.12 The codification of fair use in the US took effect in 1978. The intention was to restate copyright doctrine—‘not to change, narrow, or enlarge it in any way’.^[6] There was no intention ‘to freeze the doctrine in the statute, especially during a period of rapid technological change’.^[7] Section 107 of the US Copyright Act provides:

Notwithstanding the provisions of sections 106 and 106A, 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—

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.