As discussed in the previous post, the unauthorised exercise of any exclusive rights in a copyrighted work amounts to copyright infringement. However, copyright law provides certain exceptions to this rule, which are known as ‘fair use’ exceptions. Although the Copyright Act provides for a number of exceptions, this post discusses only the few exceptions which are relevant for writers.
Works belonging to another person may be copied for various purposes like research, criticism, reporting of current events. However, in each of these situations, the law requires that the writer use the work in a manner that amounts to ‘fair dealing’. While the Copyright Act itself does not clarify the meaning or scope of this term, it is generally understood that copying of limited quantities of the work is permitted, provided the copyright holder is not adversely impacted.
Factors determining whether use is ‘fair’
When determining whether use is fair, courts often consider the following factors, the combination of which is commonly known as the ‘four-factor test’. The various exceptions in the Copyright Act only enumerate the purpose for which the work is being used, and do not mention any of the other factors analysed, other than in one exception which requires fair dealing. These tests for fair use are employed with limited applicability, either when the list does not cover a particular situation, or when the language of one of these exceptions has to be interpreted to understand its scope.
These factors are:
- the purpose of use
- the nature of the work
- the amount of the work used, and
- the effect of use of the work on the original
The purpose of use is taken to mean the purpose for which the work is being copied. For instance, use is considered fair if portions of a work are copied for research, teaching, private use, or for criticism or reporting. Thus, if a write wishes to use excerpts of a work for a critique of another work, whether a literary work or any other type of work, this would generally be considered fair use. Similarly, copying excerpts for the purpose of reporting current affairs and ongoing events of public interest including public speeches/lectures, is also generally considered fair use. Allowing copying for purposes of reporting current events is closely related to the rule that facts are not copyrightable, and the factor examining the quantity of the work used.
Apart from the purpose, an important element of this factor is the character of the use, in other words, whether the writer’s use of the copyrighted work is sufficiently ‘transformative’. In this context, transformation is generally understood to mean the addition of new expression or aesthetics, new meaning or insights, or new information which alters the perception of that work in the minds of the readers. While this exception is most often used to create parodies, merely ridiculing the characters or story of a copyrighted work (outside of a humorous review) is not sufficient.
When courts examine the nature of the work being used, they consider whether a work is published or unpublished, and whether the copyright owner of the original work intended to publish his/her work. The court would also consider whether the work is creative (fictional) or factual (non-fictional) in nature, Thus, a writer would have greater leeway to use excerpts from a published, non-fiction work like a biography; as compared to a novel or a collection of unpublished personal letters. However, this does not imply that excerpts of these works cannot be used outside of a book review or for reporting events. As seen in the previous post, an element like the broad theme of a book is not copyrightable by itself, and thus can be used to develop a different story or work based on a similar theme or depicting similar ideas. This doctrine, known as the ‘scenes a faire’ doctrine, protects writers/artists who use commonly depicted elements in various works from infringement actions. However, if any writer depicts a common scene in a unique fashion, it would not be covered by this doctrine, and would thus be protected by copyright.
Thus, if most of the existing works related to a particular event, whether in the form of articles or books, are factual in nature, the use of such excerpts is more likely to be found fair, due to the factual nature of the work and the need to report the event.
When considering the amount of the copyrighted work used, courts examine the excerpts qualitatively and quantitatively. Thus, the use of any excerpt which encompasses the ‘heart’ of the copyrighted work, even if it a small portion of the copyrighted work and the writer’s work, will not be fair use.
The final part of the test is the economic impact of the writer’s work on the market for the copyrighted work. Here, the court considers whether the infringing work would deprive the copyright owner of income from his/her work, or undermine a potential market for the copyrighted work by fulfilling its demand. However, merely causing a decrease in demand for the copyrighted work is not sufficient to constitute infringement, as bad reviews for a work can also have the same effect. Neither is it necessary for the infringing work to compete directly with the copyrighted work. The essential element here is that the infringing work not fulfill demand for the copyrighted work.
In addition to the above factors, courts often examine other elements surrounding the use of copyrighted works. Courts may examine, for instance, whether the copyrighted work was used in good faith, whether the copyright owner of the original work was properly attributed, whether the writer has attempted to contact the copyright owner for permission, or whether the writer has used excerpts despite being instructed specifically to refrain from doing so. While these additional factors are not by themselves sufficient to find infringement or fair use, they are often used to determine whether the infringement was willful or innocent, which may be subsequently used to determine the extent of damages awarded in a suit for infringement.
Besides copyright, writers should also be aware of similar rules governing trademark infringement in their works. Creating a false association of a brand owned by a third party, with a book or a character in the book, may amount to infringement of that trademark. While a passing reference to a brand generally does not attract infringement actions, the writer still has to be careful about not suggesting endorsement or disparaging the trademark. Similar to copyrights, a ‘fair use’ defense also exists in relation to trademarks, which allows for trademarks to be used descriptively, and for news reporting, commentary, or parody. For instance, the writer may describe the traits of a character to include a preference for a certain brand of clothing, or a certain brand of automobiles. Similarly, particular scenes from the book may take place in a store or restaurant of a certain brand.
The fair use exceptions discussed here are applied more liberally when writing about real events or people, as compared to a work of fiction.
Questions of copyright infringement are frequently decided based on the unique facts of each case, and it is thus difficult to say with certainty whether fair use exceptions apply in a particular situation. There is no formula to determine how much of a copyrighted work may be used, which parts may or may not be used, and how much of a change in character is sufficient to demonstrate transformation. Although it is relatively easy to determine whether the situation itself is covered by a fair use exception, due to the extensive list in the Copyright Act, it is important to note that the court may consider the parties’ conduct and transactions in its finding. Thus, it is best to use as little of copyrighted works as possible, even for permitted purposes such as criticism and reporting, and only copy portions whose use is inevitable.
This post is authored by Ashwini Arun (Associate, BananaIP Counsels).
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