We're going to continue our discussion of fair use. And specifically talk about fair use and four-factor balancing test to fair use. In another lecture we discussed the place of fair use, and so now let's dig into fair use as codified in Section 107 of copyright law. So the four factors as codified in section 107 are as follows. The purpose and the character of the use, including whether such a use is for a commercial nature or is for nonprofit educational purposes. So in this case, fair use is favored when the use is an educational purpose. But as we've discussed, the fact that a use is educational is not dispositive. That only really address the first factor of fair use. As we also discussed, simply because it uses commercial in nature, does not mean that it can't be a fair use, it just means it's less favored under this first factor. The nature of the copyrighted work is the second factor. And that gets to really the type of work that you're considering using as a fair use. So things that are more creative tend to be more protected by copyright. And so, less use would be considered often a fair use. So for example, poetry is very creative. Films that are blockbuster movies are generally more creative than for example, a documentary that is more factually based. Fiction is more creative than non-fiction. So the nature of the copyrighted work itself is the second factor in fair use. The amount and substantiality of the portion used in relation to the copyrighted work as a whole is the third factor in fair use. And that is the factor that causes folks the most angst and the most difficulty. It's the also the factor where often you have people come up with percentages, or amounts, and feel that if they're falling within that range somehow or another, their use must be fair use. I'm sure you've heard of this, Ann. Where someone will come to you and say, well I'm using 30 seconds of fill in the blank and therefore it must be a fair use. Because someone told me that 30 seconds is always a fair use. >> Right Lisa. Or sometimes a word count. I know I can use 100 words and that will be fair use. >> Yes. Unfortunately the law is a balancing test. And as we've said before no one factor is dispositive. So you can't unfortunately rely on these rules of thumb. It's not bad to have rules of thumb and sometimes institutions will create rules of thumb. They give guidance around fair use. But none of those amounts that you've heard as being, you know, the amount that is fair use actually exists in the law. The other thing to remember with the third factor is, sometimes, something can be considered the heart of the work and in a court case around taking an excerpt from a biography of why Ford pardoned Nixon, it was Ford's biography. A new, a journal published that excerpt from that biography explaining why Ford pardoned Nixon. And of course the publisher of Ford's memoir sued saying you have used and copied and distributed this portion of the book and that while, it was a very small amount of the book, the court found that it was the heart of the work. The court found that most people who were buying Ford's memoir were buying Ford's memoir to understand why Ford pardoned Nixon. And therefore, that was the heart of the work. So be aware that amounts of substantiality can have not only a meaning of a number count or a percent, but it can also have a meaning of whether or not that portion is really the heart of that work. And finally, the fourth factor is the effect of the use upon the market, or potential market for the work, or the value of the copyrighted work. And so that's why when people say, well, it's out of print, so therefore my use must be a fair use, that's not an accurate statement, as we've discussed. Consider that the copyright owner of that work may choose. In the case of a book, for example, to turn that into an e-book, which is a potential market for that work. The effect of the market is sometimes considered the most important fourth factor, but actually, it isn't, necessarily. And as we've said, this is a balancing test, and not on factor is dispositive of whether or not something is a fair use. Another thing to remember about the four factors is the fact that a work is unpublished does not, in and of itself, mean that a fair use cannot be made of that work. And that sometimes, not nec, necessarily a myth, but a misconception about fair use, that fair use only applies to things that are published. Now, we do give deference to copyright owners and creators to make the decision about whether or not they want to publish their work. So it's possible that for something that is unpublished, a smaller amount may be considered a fair use. But again, it's a balancing test of the four factors and simply because something is unpublished does not mean that it can't be made. Or fair use can be made of that work. So that's the four factors as they're kind of codified in the law, but there are other things that often, we need to consider. You want to tell us about some of those, Anne? >> So yes, there are lots of other considerations when making a fair use analysis. Sometimes people refer to the fifth factor as the factor about good faith. Have you acted in good faith when you made your fair use? Was your intent to misappropriate a work? Was your intent to do something nefarious? >> [LAUGH] >> Were you evil? Were you not evil? That can be a consideration that courts look at. Another is risk. Some uses of fair use are riskier than others, depending on who the rights holder is, how public your use is. And those are considerations that people take into account quite often as well. I think that may be one reason that people say what they do about out of print works,w ell, the risk is lower. And it may be in some cases. >> Yeah. >> Yeah. >> Sometimes whether or not there's a very active licensing market-. >> Yes. >> For the work can impact that risk-. >> Yeah, yeah. >> Analysis as well. >> Yeah, and it does have an influence on that fourth factor. The, the use or the potential market or value. Again, it's another thing to put into the mix of assessment. Another is the stance of the institution where you work or the platform you're using. Some universities and schools are more risk averse than others, and of course that's something to consider as well. In some environments one is less likely to employ fair use than others. Just because of the, the way the climate of that institution works. Some platforms have requirements about fair use, or the, use, not using fair use so often. For example, I can think of some platforms where people upload content that, that really don't want people to use fair use. Perhaps a mistake, but that's their prerogative. So which factor is most important? >> [LAUGH]. >> And lots of times, people really just want an answer to this, you know. Tell me which one it is. And in a lot of situations, courts look very closely at the first factor. >> Mm-hm. >> The purpose and character of the use and at the market harm factor, but all of them need to be considered and there are situations where all of them are important. >> Mm-hm. >> In fact and indeed, as we've said over and over again, it is a balancing test. It's not a situation where you say got one, got two, don't have three, got four, I know it's there. It's, it is a more nuanced analysis than that. The first factor is also really important in transformative fair use analyses, which we will talk about in another lecture. But again, they're all important, all have their place, and all are part of what can sometimes be a complicated balancing and analysis. >> Well, in any court case around fair use, the court always. >> Mm-hm. >> Walks through all four factors. >> Right. >> And considers all four factors. >> Right, right. >> So, if that's how a judge is going to do a fair use analysis then it behooves us. >> To do that same thing, right. >> To take the same approach, and have a fair use analysis with all four factors. >> Yeah, yeah. Yeah. As we've noted before, fair use is used in education a lot. Much more frequently than most people realize, in teaching, in scholarship, and just throughout, sort of, the life of an educational univ, institution. And it's really an important part of what we do in education. Well I think we all rely on fair use everyday. >> Exactly. >> We just don't necessarily. >> Right. >> Sit down and. >> Yeah. >> Say oh I just made a fair use of that. >> Exactly. Fair use is one of the most important and challenging parts of copyright law. We discuss it in other lectures as well. And we will, in one of our lectures, give some examples of applying fair use and how to make the kind of analysis that we've been discussing today. But for now, you've taken one more step on the journey to becoming a copyright maven.
