Understanding Copyright And Fair Use / Fair Dealing In The U.S., Canada, And The U.K.
Countries provide protection for citizens’ work with copyright law. In the U.S., copyright usually exists for the life of the author plus 70 years after the year of his death. In Canada, life plus 50 years. In the U.K., life plus 70 years. These are general lengths, but the actual lengths are more complicated. In general, copyright is shorter with photographs (25-year copyright from time photograph was taken) and cinematography (50 years after first showing).
Ignorance of the law is not a defense in the U.S.
Some things cannot be copyright, however, including parts of copyright works. In general, names cannot be copyright, and neither can be familiar symbols, listings of ingredients or contents, short phrases, titles, slogans or procedures. (However, some of these may be protected by trademark.)
After copyright expires, work becomes part of the public domain.
Using something that is someone’s copyright property is infringement. However, there are exceptions to this law. These are called “fair use” in the U.S. and “fair dealing” in Canada and the United Kingdom.
For these exceptions, permission of the copyright holder is not required.
To use copyright material, there are two requirements: the purpose must be one of several specific types, and the new work must meet the requirements of “fair use” or “fair dealing.”
1. Types of purposes for which there is exception to copyright protection
In the U.S., news reporting, education, research, commentary and parody are excepted. They do not require permission from copyright holders to reproduce copyright work, so long as they meet the requirements of “fair use.” In Canada, research, private study, education, parody, satire, criticism or review and news that meet “fair dealing” requirements are excepted. In the U.K., non-commercial research, private study, criticism, review, and news reporting that meet “fair dealing” requirements are excepted.
That is, news, research or another of these purposes that deal or use fairly do not infringe copyright.
In General, the new work must also mention the source of the copyright material, including the name of the author, performer, maker or broadcaster.
2. What is “fair”?
There is no definition of “fair.” It is a matter of case-by-case judgement. The judge will consider how a person used their source material, and will judge whether too many quotations and extracts were used, if they were long, how they were used (whether for comment, criticism, review, reporting), how many original comments were included in the work, and how long were they, what the overall impression of the work is, and other factors may be considered by the judge.
In the U.S., four factors to be considered have been specified:
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- 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.
In Canada, six factors were identified that would be applied to determine whether use was fair (although these six are only six of an indeterminable number of possible factors a judge might consider):
- The Purpose of the Dealing
- The Character of the Dealing
- The Amount of the Dealing
- Alternatives to the Dealing
- The Nature of the Work
- Effect of the Dealing on the Work
In the U.K., factors to be considered are similar to those in Canada and the U.S.
Further information: Understanding The Four (Or Five) Factors (Stanford University)