This session we're going to talk about what is fair use. We're going to talk about this important area of an exception, in fact, the largest area of exception to copyright. If you are sued for copyright violation, you should almost always claim some kind of fair use defense. It might not work, but it might. Fair use is a big area of exceptions, a big opportunity to say, yeah, I violated the law, but I have an excuse. Now, to talk about what is fair use, let's first talk about what is the nature of copyright. In week one, we covered this, but we didn't really talk about the idea that copyright sometimes involves prohibitive works and sometimes permitted works or actions. For example, I'm a musician, I sing a song, it's a popular song. I may say, I'm going to allow iTunes to sell my song, but I'm going to prohibit Spotify. I don't want Spotify to use it, why? Maybe they're not paying me enough money. I may as some musicians have said say I will allow some use and not others, I have a right to do that. As a copyright holder, I can say I don't want you to show your movie in certain countries. I don't want you to sell my movie in certain countries or I only want to sell hardback books, not paperback books. I'll permit some things, I won't permit others. In some cases, I'll prohibit any use of my work, and you might say, why would you create it? Maybe it gives me an advantage in business. I've created some software, it lets me trade faster or better, or lets me value companies better or perform consulting work for clients better and I make say I'm not sharing this with anybody. This is my airline reservation system, it helps me to make money, it helps me to beat the competition and so I'm not licensing or selling this creative work to anyone, I'm just using it. I'm not selling my trading system to anyone, I'm just using it. So there are prohibited uses and there are permitted uses. But sometimes when a company doesn't permit you to do something, you may say but I want to do it anyway. Then that comes in where you say maybe it's legal because fair use is something which is not permitted. The copyright owner says no, you can't do that and you say but I think it would be fair for me to be able to do this and so I'm going to argue in court that my use is a fair use, even thought it's not a permitted use. The copyright holder says I can't do this, I say the law should allow me. There are exceptions under the law, there are areas where fair use does apply or could apply as a defense to say my copyright was violated, this is not a permitted use. The person did it anyway, I'm going to sue them and the person being sued says, but it's fair that I be allowed to do that. Now if the fair use defense doesn't work and maybe there's some other exceptions you could use, they don't work, then what you've done is illegal. You could be fined, you're in trouble. You broke the law, and the law won. Your actions are illegal, and now you're going to have to pay a fine, maybe in some cases, even go to jail. Not likely, but possible. Your offense is illegal because fair use didn't save you. Now it is important to keep in mind, fair use is a defense, it is not a right. You don't have the right to fair use, you can only use fair use if you have violated copyright. You broke copyright law in some way and you get sued, and you go to court, now you can use fair use defense. It might work, you should try it but you can't rely on it because it doesn't always work and sometimes you may think, 'This is fair!' and the other person says, 'No, it's not.', and the judge says, ‘I don’t know’. One judge may rule one way and another judge may rule another way. Fair use is not always consistent or reliable, it's a tricky area that is complicated, in general. Now, when does fair use apply? When is fair use strongest or most likely to be successful? The first example of fair use being a powerful defense is in education but not education like this course, not a MOOC. Online education, not very well protected under fair use. I have to be really careful in this course what I share, what I do. I can't share a video with you without getting permission or I'd be sued. I can't put a chapter of a book up for you to read and say here's an example of this, read this. I might be able to do that in face to face, I can't in an online course because it doesn't have as strong of a fair use support for online courses as exists for face to face. But face to face education has a lot of exceptions and protections under fair use law. Second, literature, I can often quote things or cite things or refer back to things in literature. Literature allows me to do some citations or examples that would allow me to cite other people's work and criticism frequently relies upon giving examples of what you're criticizing. In this play, the line delivered by the lead actor of blah, blah, blah was delivered badly and did not sell well or look at this video of this performance, see how bad it is. That's criticism and fair use. Even better than criticism as fair use is parody. This is one of the strongest fair use defenses. If you can say it's funny and I'm making fun of it, you got a parody defense, a very, very strong defense. In fact, in week three, we're going to talk a lot about parody and why it applies and how it's a useful, entertaining defense against copyright. Finally, news reporting. In the United States the First Amendment says we have the right to free speech and a right to report news. Other countries are little less protected but many times, you may want to look at what the president or prime minister of a country has said and you report that and you're quoting them. That's a violation of their copyright. They created this original work, they have the right to protect it but you also have the right to report it as news. Most countries grant at least some degree of protection of a fair use defense to politically important speech. Fair use is complicated. Fair use is one of the most complicated areas of the law. The Supreme Court in 1939 said, it is the most troubling in the whole law of copyright because the issues under in fair used are often in conflict. There are number of factors and we'll look at those factors in our next session, but one thing to keep in mind is easy fair use cases don't go to court. If you see in a court case and a court ruling, it's because one party thought they would win, the other party thought they wouldn't, so you have a hard case. You don't go to trial if it's an easy case, you settle out of court. You only go to trial for the hard ones. Far use is an exception to copyright, it's a big area of exception. Copyright could be prohibited, permitted, like selling a book or selling tickets to a movie and it can be legal to do things which are not permitted as a legal defense. That's fair use or illegal. That's a summary of fair use, it gives you a graphic overview of this important area of law to illustrate this concept. Thank you very much. We'll see you on our next session. [MUSIC]
